Elliott, J.D. v Sergeant Seymour, D

[1993] FCA 1047

JOHN DORMAN ELLIOTT v. SERGEANT DOUGLAS SEYMOUR; THOMAS SHERMAN; NATIONAL
CRIME AUTHORITY and DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA
No. VG411 of 1993
FED No. 1047/93
Number of pages - 5
Practice And Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Practice And Procedure - joinder - whether leave required - joinder sought during interlocutory proceedings with no interlocutory relief sought against parties to be joined - Federal Court Rules Order 6, rule 2, rule 8.

Qantas Airways Ltd v A F Little Pty Ltd (1981) 2 NSWLR 34

HEARING

MELBOURNE, 26 October 1993

#DATE 26:10:1993

COUNSEL FOR THE APPLICANT: MR J.L. SHER QC with MR P. HANKS

INSTRUCTED BY: G.W.P. AARONS AND CO

COUNSEL FOR THE FIRST, SECOND AND THIRD RESPONDENTS: DR C.N. JESSUP QC with MR B.E. WALTERS

INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR

COUNSEL FOR THE FOURTH RESPONDENT: MR F.X. COSTIGAN QC with MR P. JOPLING

INSTRUCTED BY: DIRECTOR OF PUBIC PROSECUTIONS FOR

THE STATE OF VICTORIA

COUNSEL FOR THE AUSTRALIAN BROADCASTING CORPORATION: MR M.G. SEXTON

INSTRUCTED BY: HOWIE AND MAHER

ORDER

THE COURT ORDERS THAT:

1. The applicant have leave to join the Australian Broadcasting Corporation of 700 Harris Street, Ultimo, New South Wales and Steven Marshall Crabb of 1/13 Chandler Road, Boronia, Victoria as respondents to the application in this proceeding.

2. The applicant have leave to file an amended statement of claim and amended application in the form of the documents dated 25 October 1993 which are before the Court.

3. The amended statement of claim and amended application to be served on the first, second third and fourth respondents within 7 days.

4. The amended statement of claim and amended application and a copy of these orders to be served on the Australian Broadcasting Corporation and Mr Crabb within 7 days.

5. Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FOSTER J By notice of motion dated 19 October 1993, the applicant in these proceedings seeks the following orders:

"1. The Applicant have leave to join the Australian Broadcasting Corporation of 700 Harris Street, Ultimo, New South Wales and Steven Marshall Crabb of 1/13 Chandler Road, Boronia, Victoria as respondents to the application in this proceeding.

2. The Applicant have leave to file and serve an amended application and statement of claim in the form exhibited to the Affidavit of Thomas Joseph Cantwell sworn the 19th day of October, 1993 and filed herein."

1. The amended application and statement of claim are not those referred to in the notice of motion but are a slightly different pair of documents. However, the argument in the matter has proceeded on the basis of a document entitled "AMENDED STATEMENT OF CLAIM" and dated 25 October 1993 which has been before the Court at all relevant times. That document contains a number of amendments to the previous document which has been considered by the Court, that document being a statement of claim dated 30 September 1993.

2. I note that in the course of proceedings before me, when the matter was last before the Court, I allowed an amendment which added to the statement of claim an additional paragraph 4A. A question has arisen as to whether leave is needed in respect of the amended statement of claim of 25 October 1993, as in fact leave was previously sought and given to make the first amendment to the document of 30 September.

3. I do not find it necessary, however, to decide that neat little point. It is more practical to approach this matter on the basis of the question as it was posited in the notice of motion: whether leave should be granted to file the amended statement of claim of 25 October 1993.

4. The addition of the two further respondents has been opposed by the present respondents. It has also been opposed by counsel appearing before me today for the Australian Broadcasting Corporation. I have some considerable doubt as to whether the Australian Broadcasting Corporation has standing to oppose this notice of motion but I have heard what their counsel has had to say and have taken it into account.

5. The application to join the two further respondents is made in a situation where it has been made abundantly clear to the Court that the applicant proposes to take proceedings against those two respondents, alleging in broad terms that they were each party to a conspiracy to harm him; which he relies upon as being pleaded in the first statement of claim, and as further elaborated upon in the amended statement of claim of 25 October 1993, the subject of this notice of motion.

6. It really is a question of whether the Court should grant leave for those two respondents to be added to these proceedings in the context, as I have said, that proceedings will inevitably be taken against them with the result, no doubt, that if they are not currently joined, application will be made to have them joined at a later stage.

7. The relevant rules of court bearing upon the matter of joinder are to be found in Order 6. Rule 2 is, in my view, an appropriate one for consideration in this context. It provides that:
   

"Two or more persons may be joined as applicants or respondents in any proceeding -

(a) where -

(i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court gives leave so to do."

1. This rule, in my view, needs to be read with and in addition to rule 8 which deals specifically with the addition of parties. It provides:
   

"(1) Where a person who is not a party -

(a) ...

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding."

1. That rule has been the subject of consideration in earlier cases, in particular in Qantas Airways Ltd v A F Little Pty Ltd (1981) 2 NSWLR 34. It was held (at p 38 per Glass JA, Samuels JA agreeing) that:
   

"Where a plaintiff applies to add a defendant the phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the pleadings."

1. In other words, in determining whether the joinder should be permitted one simply does not have regard to the pleadings as presently framed but the pleadings as contemplated should the joinder be allowed. It is, therefore, germane to consider in determining whether the joinder should be permitted at this stage to have regard to the allegations which are sought to be made in the amended statement of claim and also to other matters which have been put to me.

2. It was put, as I understand it, on behalf of all current respondents and also on behalf of the Australian Broadcasting Corporation, that there were substantial matters of inconvenience to be considered, increased expense, increased time of hearing and the like, necessarily involved if this joinder were permitted. That, no doubt, is so. It is a question which necessarily arises whenever parties are sought to be joined to current proceedings.

3. It must be borne in mind, however, that the very object of the rules relating to joinder in the first instance or the subsequent addition of parties is to avoid a multiplicity of proceedings. Multiplicity of proceedings in itself necessarily involves increased expense and the waste of court time when hearing issues more than once. Generally speaking, it is plain, in my view, that the joinder of parties so that all parties can be involved in the litigation of common issues of fact and law must, in the ultimate, lend itself to the more expeditious and less expensive disposal of matters in the Court.

4. There is nothing before me at the moment to suggest that this consideration would not apply if the joinder were currently permitted, especially in circumstances where it has been made abundantly clear that the proceedings would be taken in any event and that questions of joinder and the like might well arise farther on in time if those proceedings were, in fact, taken separately and not as part of these current proceedings.

5. Other objections to the joinder are really based upon what are put as inadequacies in the amended statement of claim which is also the subject of this notice of motion. On behalf of the Australian Broadcasting Corporation, it is put that those paragraphs in the amended statement of claim, which are intended to operate as alleging causes of action against that organisation, are not sufficiently linked with other paragraphs which are apparently intended to allege the tort of conspiracy against other respondents with whom the Australian Broadcasting Corporation is alleged to have conspired.

6. Similar objections are taken by the other respondents; who assert that the paragraphs in the amended statement of claim, apparently intended to raise the claim of conspiracy against them, are inadequate to do so. I think that these are matters that really go simply to pleading points and not to the matters of substance which I have to decide, namely whether I should grant leave for the amended statement of claim to be filed, subject to any attack that may be made upon it, and also whether to allow the joinder of the parties as is sought to be effected in the amended statement of claim itself; in the paragraphs that relate to them.

7. It may be that the amended statement of claim is not a model pleading in so far as it alleges the tort of conspiracy, but I feel that the intention has been made abundantly clear to me as to the allegations sought to be made. In those circumstances, I think as a matter of substance that it is reasonable that I should allow the amended statement of claim and the amended application to be filed with the result that the two parties to whom I have made reference will be joined in these proceedings.

8. I should add that it has been made clear to me on more than one occasion by Mr Sher QC, appearing for the applicant, that no interlocutory relief is currently being sought against these additional respondents. Indeed, no argument has been put to me which would in any way suggest that that is currently being sought by way of orders made in this Court.

9. It is necessary that I make some consequential orders. I think they should be kept at this point of time as brief as possible, on the basis that other orders, if required, can subsequently be sought. I think it is sufficient at the moment that I merely order that the amended statement of claim and amended application be served upon the new respondents, together with the orders which I make in relation to the notice of motion.

10. In that regard, I order that the applicant have leave to file an amended statement of claim and amended application in the form of the documents which have been before the Court dated 25 October 1993. I also make an order granting leave to the applicant in accordance with paragraph 1 of the notice of motion.

11. I further order that the amended application and amended statement of claim should be filed and served upon the current respondents within seven days of today's date and within the same period of time the same documents should be served upon the additional respondents, together with a copy of the orders which I have just made.