Hackham Community Sports & Social Club Incorporated v Joperi Hotel Pty Ltd

[2009] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Application)

HACKHAM COMMUNITY SPORTS & SOCIAL CLUB INCORPORATED v JOPERI HOTEL PTY LTD & ORS

[2009] SASC 173

Reasons for Decision of The Honourable Justice Gray

12 June 2009

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES

Application to join Club Management Services (SA) Pty Ltd as additional appellant in the appeal - opposition to application on basis that granting of leave involved an impermissible extension of time.

Held: application for joinder allowed - appellate process has capacity to affect applicant's interests - matters raised by those opposing application do not outweigh the interests of applicant to be heard on appeal - no prejudice identified that could not be addressed through appropriate costs order.

Supreme Court Civil Rules 2006 (SA) s 286(2) and s 296; Liquor Licensing Act 1997 (SA) s 60, referred to.
Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Knight v FP Special Assets Ltd (1992) 174 CLR 178, considered.

HACKHAM COMMUNITY SPORTS & SOCIAL CLUB INCORPORATED v JOPERI HOTEL PTY LTD & ORS
[2009] SASC 173

Civil

GRAY J

1. This is an application by Club Management Services (SA) Pty Ltd to be joined as a party to the within appeal as an additional appellant. 

2. On 17 April 2009, following a contested hearing, I made an order that Club Management Services have leave to be joined as an additional appellant.  At that time I provided short ex tempore reasons for my decision, but indicated that I would publish edited reasons.  Now follow those reasons.

3. The application is made pursuant to Supreme Court Civil Rules 2006 (SA) Rule 286(2).  That rule relevantly provides:

   (1)     A party to the proceedings in which the judgment under appeal was given is a party to the appeal unless the party has no interest in the subject matter of the appeal.

   (2)     The Court may order the addition or removal of a person as a party to an appeal.

   (3)     A person cannot be added as an appellant without the person's consent.

4. The Rule provides the court with a discretion.  No express words qualify that discretion.  The power is exercisable by a single judge of the Court.[1]  As was highlighted by the High Court in The Shin Kobe Maru,[2] it is inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[3]  This approach has been confirmed by the High Court on several occasions.[4] 

   [1]    Supreme Court Civil Rules 2006 (SA) 6R 296(1).

   [2]    Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404.

   [3]    Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.

   [4]    Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [47]; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at [10]; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205.

5. The history of this matter is that the present appellant, Hackham Community Sports and Social Club Incorporated applied to the Licensing Court for removal of its licence pursuant to section 60 of the Liquor Licensing Act 1997 (SA). The application was refused by the Licensing Court and Hackham Community Sports and Social Club has appealed to the Full Court.

6. Club Management Services submitted that it should be joined as an additional party to the appeal, as an appellant, for several reasons.  It was said that Club Management Services was involved in the Licensing Court proceeding and attended by counsel during the course of the hearing at the request of the Licensing Court.  Club Management Services contended that it had been prejudicially affected by the Licensing Court judgment and that it should have the opportunity to address those issues.

7. Attention was drawn to ground six of the notice of appeal of Hackham community Sports and Social Club, which provides:

   The Learned Trial Judge erred in law and proceeded contrary to rules of procedural fairness by failing to grant CMS an opportunity to make further submissions about the said Agreement having expressly adjourned consideration of the Section 99 issue until after his decision on the removal application.

   It was said that this ground of appeal gave Club Management Services special standing.  Counsel pointed out that Club Management Services had applied for judicial review in separate proceedings, raising in substance, the same matter addressed by the above ground of appeal.  Counsel identified Club Management Services’ involvement in the Licensing Court proceedings and drew attention to the reasons of the Judge. Those reasons discussed in some detail Club Management Services involvement in the application and particularly noted that the proposal which led to the application was first raised by Club Management Services.  The reasons also outline in some detail the level of control vested in Club Management Services by the Draft Management Agreement between Hackham Community Club and Club Management Services.  I accept counsel’s submission that it is arguable that the Judge when refusing the application was influenced by issues involving and concerning Club Management Services.

8. Counsel for the respondent, Independent Pub Group Pty Ltd, opposed the application.  Gay Thompson (MP), a respondent, joined in that opposition.  She sought to speak on behalf of a number of other individual respondents; I gave her leave to do so.  Dr Kenneth Pidgeon, another respondent, also joined in opposing the application.  Counsel appearing for several other respondents did not oppose the application. The remaining respondents did not appear on the application.

9. Those opposing the application accepted that Club Management Services could have initially joined in the appeal.  However, it was submitted that Club Management Services elected not to do so and that leave should not now be granted.  It was said that this would involve an impermissible extension of time. 

10. It was further contended that Club Management Services took less than a full interest in the Licensing Court proceedings, elected not to put detailed decision although being invited by the Licensing Court to do so and generally fell short of taking on the role of a party in those proceedings.  As a consequence it was said that it was too late for them to come forward now to seek to agitate matters that they chose not to earlier address. 

11. Although there is an extensive commonality of interest between the present appellant and Club Management Services their counsel assured the Court, that there would not be any unnecessary duplication or repetition of submissions.  In any event, unnecessary duplication is a matter that is subject to the control of the Court hearing the appeal.

12. Sufficient has been established to justify leave being granted to join Club Management Services as an additional party.  The appellate process has the capacity to affect its interests.  Although the matters raised by those opposing the application are material, they do not outweigh the interest of Club Management Services in being heard on the appeal.  Those opposing the application were unable to identify any prejudice that could not be addressed through appropriate cost orders.

13. Counsel for Club Management Services has also issued judicial review proceedings and sought leave to serve those proceedings and have them heard at the same time as the within appeal.  Those proceedings are said to have been issued to avoid the possibility that questions as to procedural fairness will not be fully canvassed.  I am not satisfied that this is a real risk.  If, following receipt of written submissions on the appeal, it is apparent that there may be such a risk, the issue of the serving of the judicial review proceedings and an expedited hearing can be addressed. The Court was informed that the judicial review proceedings rely on the same materials that will be in the case book before the Appeal Court.

14. I reserved the question of costs in relation to the application for joinder, to the Full Court.