Hamilton v JJR Investment Holdings Pty Ltd; Hamilton v JJR Investment Holdings Pty Ltd (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HAMILTON v JJR INVESTMENT HOLDINGS PTY LTD & ORS; HAMILTON & ANOR v JJR INVESTMENT HOLDINGS PTY LTD & ORS (No 2)
[2021] SASC 136
Judgment of the Honourable Auxiliary Justice Bochner
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - NON-PARTY INTERVENTION
The factual background involves an intricate web of corporate and other entities through which the business and financial interests of the late John Roche are managed.
A large number of companies have sought to be joined to these proceedings as interested parties, either on an unlimited basis or for the purpose of the uplift application only.
Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222; Jeavons v Chapman [2008] SASC 249; Acehill Investments Pty Ltd v Incitec Ltd (No 2) (2002) 85 SASR 452; Young & Ors v Murphy & Anor [1996] 1 VR 279; Wales v Vrsecky [2015] VSC 223; Harrington v Coote [2012] SASC 205; Levy v State of Victoria (1997) 189 CLR 579, considered.

HAMILTON v JJR INVESTMENT HOLDINGS PTY LTD & ORS; HAMILTON & ANOR v JJR INVESTMENT HOLDINGS PTY LTD & ORS (No 2)
[2021] SASC 136
CIVIL

In these actions, the applicants seek orders for the removal and replacement of the trustees of two discretionary trusts. While the actions were commenced some months apart, the orders sought are identical, and they rely on the same factual substratum. Throughout these reasons, where it is necessary to differentiate between the two actions, I will refer to CIV-21-000520 as the first action, and CIV‑21-006244 as the second action.
At the first directions hearing in the first action, 60 companies sought to be joined to the proceedings, 32 as respondents, and 28 as interested parties. The 1^st‑32^nd companies were joined as interested parties; those companies are general beneficiaries of the trusts. I will refer to these companies as the general beneficiary companies. The remaining companies were joined at a later time, for the purpose of pursuing an application for the uplift of affidavit material filed by the applicants. I will refer to this application as the uplift application.
When the second action was commenced, the companies were not joined as parties, although the applicant in that action, Mrs Hamilton indicated that she did not object to their joinder as interested parties, as in the first action. On 27 August 2021, 64 companies sought joinder as interested parties to the second action; in addition, three additional general beneficiary companies sought to be joined to the first action.
The applicants in the first action oppose the joinder of the three additional general beneficiary companies, and further, seek the disjoinder of the general beneficiary companies who have already been joined as interested parties. Mrs Hamilton in the second action has withdrawn her consent to the joinder of the companies, and now opposes their joinder.
I note that the general beneficiary companies seek joinder on an unlimited basis. In respect of the non-beneficiary companies, however, joinder is sought only to allow them to pursue the uplift application. They do not seek to be heard in respect of the substantive issues arising in the actions generally.
Before considering the arguments of the parties, it is necessary to provide a little more background to the actions. Because the actions are largely identical, the description of the factual background applies to them equally.
The parties
The factual background to these matters is complex. It involves an intricate web of corporate and other entities through which the business and financial interests of the late John Roche are managed. These entities are known jointly as the Justin-EDC/ADC Group (“the Group”). The Group is involved in farming, property development and other activities. Since John Roche’s death the Group has been controlled by his three daughters, Deborah Hamilton, Fiona Roche and Shauna Roche.
I will only set out so much of the background as is necessary for addressing the questions of joinder which have arisen, and I will describe that background in a reasonably generalised way. This is partly for the sake of brevity, and partly because the parties are in dispute about a number of the antecedent events that form part of the background.
The applicants in the first action are the granddaughters of John Roche, and the daughters of Deborah Hamilton. Deborah Hamilton is the applicant in the second action. As their interests are aligned, I will refer to them jointly as the applicants, unless it is necessary specifically to differentiate between them. The two primary respondents in each action are JJR Investment Holdings Pty Ltd as Trustee of JJR Investment Trust and Westfield Station Nominees Pty Ltd as Trustee of Westfield Station Testamentary Trust, and are part of the Group. It is these companies that the applicants wish to have removed as the trustees of the respective trusts. Where necessary, I will refer to them as the trustees or the trusts as appropriate. At this stage, the trustees are not represented; I understand that Mrs Hamilton vetoed a resolution at a board meeting of each trustee to have independent legal representatives appointed on their behalf for the purpose of these actions. Fiona Roche (who I will refer to as Ms Roche) is also a respondent. She is the Executive Chairman and acting Chief Executive Officer of the Group and has filed lengthy affidavits in both actions on behalf of the companies. She has been authorised by resolution of the companies to swear affidavits of their behalf. Ms Roche has also filed affidavits in her personal capacity.
I note at the outset that objection was taken to what I have regarded as an oral application for the disjoinder of the interested party companies in the first action. While I accept that it is generally undesirable to allow an earlier interlocutory order to be revisited in the absence of an appeal, the parties appear to be in agreement that there should be congruence between the parties in the first action and in the second action.
I will consider, first, whether the general beneficiary companies should be joined as interested parties to the second action. The decision of this question will inform whether, and how, I entertain the application for disjoinder in the first action. I will also only consider the position of the general beneficiaries who seek unlimited unjoinder; it is uncontentious that the other companies must be joined for the purpose of the uplift application, after which their involvement will cease.
The applicants’ complaints
The applicants’ complaints are summarised in the general beneficiary companies’ written submissions on the question of joinder:
42.The principal complaints forming the basis for the Originating Application in the Trustee Removal Proceedings concern transactions with or involving Group Companies, and fall into five main groups. The complaints can be summarised as follows:
42.1. the existence of interest free loans due by Group Companies who are General Beneficiaries of the JJR Investment Trust, to that trust (Loan Complaints);
42.2. the use of land in which the Westfield Station Trust is interested as security for external Justin-EDC/ADC Group borrowings, from which Group Companies other than the legal owners of the land benefit (Third Party Security Complaints);
42.3. the transfer of shares by the JJR Investment Trust in certain shares of certain Group Companies, to other Group Companies, at an alleged undervalue (Transaction at Undervalue Complaint);
42.4. the co-management of the Trusts and other Justin-EDC/ADC Group Companies by the directors of the Group Companies (Co-Management Complaint); and
42.5. the intermingling of trust funds in banks accounts of the Justin-EDC/ADC Group banking companies (Internal Bank Complaint).[1]
[1] CIV-21-000520 FDN 61, [42].
For the purpose of this application, I accept that this is an accurate description of their complaints. I do not understand that the applicants took issue with this description. I understand that at any trial of the actions, the issues canvassed between the parties may be formulated differently.
It is clear that the conduct about which complaints are made involves other companies in the Group, whether as a debtor to the trusts, as reliant on property owned by one of the trusts as security for loans, as the recipient of shares or through the intermingling of finance through certain of the companies. The complaints clearly relate to the administration of the trusts.
The applicants’ position
The directors of the trustees are Mrs Hamilton and Ms Roche. As they are in conflict, there is a deadlock on the issues in respect of that conflict. Put simply, Mrs Hamilton is concerned that Ms Roche has preferred the interests of the Group companies to the interests of the trusts (and hence, the applicants in the first action). This has led to the various complaints voiced by the applicants.
The applicants’ position on this application is simple. It is that, because Ms Roche has “aligned” herself with the general beneficiary companies, the general beneficiary companies do not need separate representation. They say that the general beneficiary companies’ interests are sufficiently protected by Ms Roche in her personal capacity, and to allow them to be represented separately would lead to significant duplication and expense. They go so far as to say that the position of the general beneficiary companies and that of Ms Roche are entirely congruent. Consequently, there is absolutely no need for the general beneficiary companies to be parties to the action. They say that, at most, the general beneficiary companies should be joined on a limited basis, to make submissions on matters not already addressed by Ms Roche.
The applicants note that the concept of an “interested party” was introduced in r 21.1(4) of the Uniform Civil Rules 2020 (UCR), and did not have a direct equivalent in previous iterations of the Rules. The closest equivalent was r 89 of the Supreme Court Civil Rules 2006 (“the 2006 Rules”), which provided for non‑party intervention. They argue that, as with r 89, joinder under r 21.1(4) should be permitted only if the non-party has interests that are likely to be directly or substantially affected by the outcome of the action. Interests that may in the future be indirectly or contingently affected are not sufficient to justify joinder. In this regard, they rely on authorities such as Roadshow Films Pty Ltd v iiNet Ltd[2] (“Roadshow Films”) and Jeavons v Chapman[3] (“Jeavons”). In particular, they rely on the words of Gray J in Jeavons where he said:
The decision whether to make an order permitting intervention by a non-party is therefore a matter of discretion, to be determined in all of the circumstances of the case. Ordinarily, however, the following four matters are relevant: whether the intervention is apt to assist the Court in the instant case; whether it is in the parties’ interest to allow the intervention; whether the intervention will occupy time unnecessarily; and whether allowing intervention will add inappropriately to the costs of the proceeding.[4]
(citations omitted)
[2] (2011) 284 ALR 222.
[3] [2008] SASC 249.
[4] Ibid, [12].
They compare the circumstances of the general beneficiary Group companies seeking joinder with that of a majority shareholder in an action for oppression by a minority shareholder, and rely on Debelle J in Acehill Investments Pty Ltd v Incitec Ltd (No 2),[5] where he said:
[22]In my view, there is no established practice that majority shareholders should be joined to an action claiming oppression and there are sound policy reasons why there should be no established practice.
[23]First, the essence of the action is that the affairs of the company are not being managed in the interests of the members as a whole. Thus, in the ordinary course, the parties will be the plaintiff shareholder or shareholders and the company. While the determination of the question whether there has been oppressive conduct requires the court to weigh the interests of different shareholding interests within the company: Thomas v HW Thomas Ltd (1984) 1 NZLR 687 at 694; Reid v Bagot Well Pastoral Co Pty Ltd (1993) 61 SASR 165 at 173, it is not necessary that all the shareholders be joined. The action is between the plaintiff shareholder and the company and it is for the plaintiff to show that the conduct offends s 232. At the close of the plaintiff’s case the company will decide whether it is necessary to defend its conduct and, if it is, it may lead the necessary evidence. That may include evidence demonstrating that it is having due regard to all interests. It may, if it wishes, call shareholders to assist it in that task. The shareholders may be witnesses but there is no requirement that they be parties. Section 232 does not contemplate that all shareholders will be parties to an action for oppression. If that were so, all actions under s 232 would require all shareholders to be joined. There will be cases when it is appropriate to join other shareholders because their interests will be affected. But this is not such a case.[6]
[5] (2002) 85 SASR 452.
[6] Ibid, [22] – [23].
Further, they say that, in matters involving the removal of a trustee, there is no requirement that all beneficiaries be served with the application. Thus, there is no general rule of practice which would suggest that the general beneficiary companies should be joined to the action.
As to the general beneficiary companies, the applicants say that the definition of “general beneficiaries” is very broad, and in the case of the first respondent, comprise millions of individuals and corporate entities. The general beneficiaries comprise, apart from Mrs Hamilton, Ms Roche and Shauna Roche, “any corporation presently in existence or coming into existence at any time prior to the Vesting Day incorporated in any country throughout the world at least one share of which is owned by any person referred to in paragraphs (a), (b) or (c) of this definition”. It also includes any employee, director or shareholder of such a company. As a result, merely being a general beneficiary should not be sufficient by itself to give rise to a right to be joined to the action. In respect of the second respondent, the definition of “general beneficiaries” is not as broad, although still very broad.
The applicants argue that the general beneficiaries, however defined, do not have any vested or proprietary right in the trust property. Their entitlement is only to have the discretion of the trustee exercised properly. Thus, their being general beneficiaries is not a sufficient basis to join the general beneficiary companies to the action.
The applicants note that Ms Roche has identified a number of outcomes that may eventuate if the trustee of the trusts is changed, including the calling in of loans, the disruption of group banking arrangements, and the loss of control of assets of the group. These concerns are not in relation to the running or management of the trusts, but relate to the consequences to them (as third parties) if there is a change in trustee. As a result, they are not relevant to the application to replace the trustee. They are in no different position to any third party who has a commercial relationship with the trusts.
The applicants further submit that the concerns identified by Ms Roche are merely speculative, and not supported by the evidence. As a result, the general beneficiary companies do not have an interest sufficient to justify joinder to the action.
The applicants address the four factors identified by Gray J in Jeavons. They say that the joinder of the general beneficiary companies would not assist the court. Ms Roche and Ms Shauna Roche are parties to the action, and each of them owns one third of the group either personally or through other legal entities. As a result, they are appropriate contradictors to the application to replace the trustees, and are in a position to provide evidence, both in their personal capacity, and on behalf of the Group about the likely or possible effects of a change in trustee. The affidavits filed by Ms Roche in the action to date make it clear that she is in a position to introduce all of the evidence required in this regard. She is already giving instructions to solicitors on behalf of the Group. Because the Court will not take into consideration the individual interests of beneficiaries, but will look at their interests as a whole, a contradictor who will offer this perspective is required, rather than one motivated by individual interests. Ms Roche is able to fulfil this role, and there is no need to consider the individual and specific needs of the general beneficiary companies. Further, as the only right that a general beneficiary has is to have the trust administered properly, and to be considered for a distribution when relevant, none of their interests will be affected by a change in the trustee.
In respect of the general beneficiary companies in a commercial relationship with the trusts, the Court will not be assisted by their intervention. These are merely third party interests, and not relevant when considering the question of replacing the trustee.
The applicants say that it is not in the interests of the parties to allow joinder of the companies, because joinder will result in significant legal costs being incurred, and will increase the length of any hearing. As the general beneficiary companies will not be, and indeed, do not need to be bound by the decision in this matter, they gain no benefit from being joined, as compared to the legal costs that will be incurred.
The applicants say that the general beneficiary companies’ joinder will increase the time necessary for the hearing of the matter, as they have not suggested that their participation would be limited in any way. This will lead to significant duplication of effort at trial, as they will be represented separately to the other contradictors to the application, Ms Roche and Ms Shauna Roche. This will subject the applicants to multiple submissions and cross examination from parties who have the same interests.
The applicants submit that the involvement of the general beneficiary companies has already caused significant expense and delay, pointing to the application that the matter proceed on pleadings, and the subsequent appeal on that question. It has also resulted in substantial duplication of effort, by the affidavits filed by Ms Roche in her personal capacity and on behalf of the general beneficiary companies, and in the uplift applications and the separate proceedings commenced by them (CIV-21-004640). Any submission that could be made by the general beneficiary companies can be made just as properly by Ms Roche, without the need for additional counsel and solicitors.
The position of the general beneficiary companies
It is the position of the general beneficiary companies that, where there is a dispute that concerns the administration of a trust, and there is a real conflict between the beneficiaries, the beneficiaries have an entitlement to be joined to the action. This is such a case, particularly as the trustees are unrepresented, and the general beneficiaries and the specified beneficiaries are in conflict. It is their position that they have a right to be heard on the application. In support of their application for joinder, they rely on an affidavit sworn by Ms Roche (FDN 59) and one sworn by Andrew Vernon Fletcher AO, a director of 29 of the companies in the Group (FDN 58).

It is the position of the general beneficiary companies that their joinder comes within r 21.1 of the UCR, as they should be given an opportunity to be heard, given the fact that the trustees are not represented in the action, and there is a clear conflict between the general beneficiaries and the specified beneficiaries. They note that they also come within the terms of r 21.1’s predecessor rule, r 74 of the 2006 Rules, as they clearly have an interest in the subject matter of the action.
The general beneficiary companies submit that it is wrong to assert that the rights of general beneficiaries are more limited than those of the specified beneficiaries. The trusts were established as part of the estate planning of Mr Roche, in the context of the Group as a whole, and contemporaneous evidence shows that there was an intention to benefit the Group. They further submit that it must be remembered that the trusts are part of a significant ongoing business, and are required to operate in that context. The companies within the Group are interdependent in carrying out their business functions.
The general beneficiary companies reject the applicants’ contention that their interests are limited to third party commercial interests. On the contrary, they submit that many of the transactions about which the applicants complain are in relation to dealings between the trustees and the general beneficiary companies as beneficiaries. They further note that many of the transactions and arrangements complained of occurred many years ago, or have been in place for decades. Further, they have all occurred with the knowledge and consent of Mrs Hamilton.
The general beneficiary companies reject the submission that their joinder will result in unnecessary duplication of expense. They note that they will be jointly represented by one team of counsel and solicitors. Further, each general beneficiary company is directed by its own board; no one company has the authority to speak on behalf of any other, and each board must make a resolution in respect of its involvement in the action. It is mere speculation to say that the general beneficiary companies will add nothing to the position of Ms Roche. The general beneficiary companies rely on the case of Young & Ors v Murphy & Anor,[7] (“Young”) where Brooking J said:
Accordingly, if in the proceedings the trustee seeks the execution or administration of the trust in addition to seeking to have the breach of trust redressed, the beneficiaries will or may be necessary parties, since their interests inter se or their rights against the trustee may have to be determined. This is not so if in the proceedings the trustee seeks only to get in the trust fund, or seeks in addition only any account necessary for that purpose. On the other hand, in proceedings for the execution or administration of the trust the interests of the beneficiaries may conflict among themselves and there may in addition be a conflict of interest between the trustee and the beneficiaries with regard to the accounting by the trustee required for the purposes of the general distribution of the trust estate which is asked for in the proceedings. So a distinction is drawn between proceedings which seek merely to get back the trust fund and proceedings for the execution or administration of the trust. The former can be maintained by the trustee without joining the beneficiaries; the latter are or may be incapable of being so maintained.[8]
[7] [1996] 1 VR 279.
[8] Ibid, 283-284.
This was applied in Wales v Vrsecky,[9] where the Court concluded:
As articulated in Young v Murphy, if it is possible that the interests of one or more beneficiaries will not properly be represented by the trustee and/or there is a real conflict between the beneficiaries, beneficiaries are entitled to be joined to a proceeding. This general law rule, read in conjunction with the permissible joinder rule under r 9.06(b)(i) and the overarching purpose of the Civil Procedure Act 2010 to ensure just, efficient, timely and cost-effective resolution of disputes, confirms that it is appropriate to allow the application by the applicants to be joined to the proceeding.[10]
[9] [2015] VSC 223.
[10] Ibid, [52].
The general beneficiary companies submit that this is the appropriate approach to be taken to their application for joinder. In this regard, they further rely on the affidavit of Mr Fletcher. Mr Fletcher is an experienced company director, who has served on the board of numerous public and private sector companies. He has, in the past or currently, served as the board chairman, managing director, board member and chief executive officer of such companies. Mr Fletcher is an independent director of 29 companies in the Group; he has no family relationship with any member of the Roche family, holds no shares in any of the companies, and does not participate in the profits of those companies.[11]
[11] FDN 58, [7] – [8].
Mr Fletcher says that the transactions and arrangements about which complaint has been made have been in place for many years, and that the business of the Group is dependent on those arrangements.[12] He deposes that disruption of these arrangements will have significant consequences for the Group and its business operations.[13]
[12] Ibid, [14].
[13] Ibid, [16].
Mr Fletcher says that since he first became aware of the first action, he has, as a director of various Group companies, taken part in discussions and decisions in respect of the proceedings. He is satisfied that it is appropriate for Ms Roche to give instructions to the general beneficiary companies’ lawyers on their behalf.[14] He says that whenever important decisions need to be made, or instructions are sought by the general beneficiary companies’ lawyers, Ms Roche discusses those issues with other board members, including himself. Further, he has sought his own independent advice in respect of some of the matters arising in this litigation.[15]
[14] Ibid, [21].
[15] Ibid, [22].
Ms Roche’s position
Ms Roche supports the general beneficiary companies’ application to be joined to the action. She submits that it is simply incorrect to assert that, to date, the evidence of the general beneficiary companies has been a duplicate of her evidence in her personal capacity. She also rejects the contention that her position is aligned with that of the general beneficiary companies. She, in her personal capacity, is unable to rely on evidence available to the general beneficiary companies, as their documents are not hers to deploy, nor can she speak on their behalf, unless she has the approval and authorisation of their boards. She cannot simply act on the basis that the boards of each general beneficiary company would take a position that is the same as her position in her personal capacity.
Ms Roche rejects the applicants’ characterisation of the dispute, and notes that the transactions complained of were carried out with the knowledge and approval of Mrs Hamilton. She further rejects the characterisation of the interest of the general beneficiary companies by the applicants.
In these circumstances, she contends that it is appropriate that the general beneficiary companies are separately represented.
Consideration
The concept of an interested party was introduced for the first time in the UCR. Rule 21.1(4) provides:
(4)An interested party is a party (whenever joined) who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result.
Examples—
In a dispute between landlord and tenant under section 35(3) of the Housing Improvement Act 2016, the Minister is entitled to be heard and must be joined as an interested party under rule 239.1 even though no relief is sought against the Minister and the Minister is not directly or adversely affected.
In a proceeding seeking rectification of the real property Register Book, the Registrar-General may need to be bound by the result even though the Registrar is not directly or adversely affected and no relief is sought against the Registrar. The Registrar would be joined as an interested party.
Notes—
An interested party may choose not to participate in the proceeding, or to participate only to a limited extent, but this will not affect the proceeding as between applicant and respondent.
The costs rules that apply as between applicant and respondent do not apply as between applicant and interested party. If the interested party does not participate in the proceeding, no costs order will ordinarily be made as between applicant and interested party. Even if the interested party does participate, costs will not necessarily follow the event due to the limited role of an interested party in contrast to the role of a respondent.
These Rules do not provide for an intervenor. A person who would have been an intervenor under the Previous Rules will be an interested party under these Rules.
As can be seen, the Notes provide that an intervenor under the 2006 Rules will be an interested party under the UCR. Rule 89 of the 2006 Rules provided:
89—Non-party intervention
(1)The Court may, on application by a person who seeks to intervene in an action, permit intervention on conditions determined by the Court.
(2)An application for permission to intervene must be supported by an affidavit stating—
(a)     the nature of the applicant's interest in the action (which need not be a legal or equitable interest); and
(b)     the applicant's object in seeking permission for intervention; and
(c)     the extent of the proposed intervention.
(3)A copy of the application and the supporting affidavit must be served on all parties to the action.
(4)     The Court may permit intervention on conditions it considers appropriate.
(5)The Court may, on application or on its own initiative, vary or revoke an order allowing non-party intervention under this rule.
In the matter of Harrington v Coote,[16] Gray J had this to say about an application for intervention pursuant to r 89:
The decision whether to make an order permitting intervention by a non-party is a matter of discretion, to be determined in all of the circumstances of the case.
Notwithstanding that there are no specific criteria prescribed in rule 89 as to the circumstances in which an order permitting intervention might be appropriate, in Jeavons v Chapman I set out four matters which are generally relevant to this type of application, namely, whether the intervention is apt to assist the Court, whether it is in the parties’ interest to allow the intervention, whether the intervention will occupy time unnecessarily and whether allowing the intervention will add inappropriately to the costs of the proceeding.
In addition, when considering whether to make an order permitting intervention by a non-party, the court is required to determine whether there is a proper basis for the non-party interest. Rule 89 specifically provides that the nature of the proposed intervener’s interest “need not be a legal or equitable interest”.
When there are good grounds to join a person as an additional defendant in the action, this course should be followed rather than joining the person as an intervener. Further, a non-party whose interests are likely to be directly or substantially affected by the outcome of the proceeding should be permitted to intervene, but not merely someone whose interests in the future may be indirectly or contingently affected.
The general principles governing non-party intervention were discussed by Brennan CJ in Levy v The State of Victoria. Intervention may be appropriate in three main situations: where a non-party interest would be affected by a decision in the proceeding; where a non-party interest is likely to be affected by a decision in the proceedings; and where parties to the proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination.
Where intervention is permitted, generally an intervener has the rights and privileges of a party to tender evidence, to participate fully in the argument and to appeal. However, an intervener may assert no interest greater than that of the original parties and cannot raise new issues.[17]
(citations omitted)
[16] [2012] SASC 205.
[17] Ibid, [5] – [10].
Gray J sets out two types of considerations which must be taken into account when determining whether to allow intervention. The first type of consideration is the effect that the intervention will have on the orderly running of the action. These are the considerations that he outlined in Jeavons. The second type of consideration is phrased in terms of the interest of the non-party: does the non‑party have an interest or interests that may or will be affected by the outcome of the action. This comes directly from the words of r 89, which requires the non‑party to have an interest (albeit not a legal or equitable one), and also from the words of Brennan CJ in Levy v State of Victoria.[18] It should be noted that Brennan CJ said, as part of his discussion on the question of intervention in proceedings in the High Court:
If there be jurisdiction apart from s 78A to allow non-party intervention, it must be an incident of the jurisdiction to hear and determine the matters prescribed by the several constitutional and statutory provisions which confer this Court's jurisdiction. It is of the nature of that jurisdiction that it should be exercised in accordance with the rules of natural justice. Accordingly, its exercise should not affect the legal interests of persons who have not had an opportunity to be heard. Therefore, a non-party whose interests would be affected directly by a decision in the proceeding - that is, one who would be bound by the decision albeit not a party - must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate and admiralty cases and in other cases where an intervener and a party are privies in estate or interest.
…
Nevertheless, an indirect affection of legal interests enlivens no absolute right to intervene. The assumption is that the Court will determine the law correctly, so that the indirect affection of an applicant's legal interest is simply the inevitable consequence of the exercise by this Court of its jurisdiction as the final Court in the Australian hierarchy. On that assumption, no undue prejudice is suffered by a person whose interests will be affected by the decision. The exercise of this Court's jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the Court's judgments. Such a condition would virtually paralyse the exercise of that jurisdiction. The principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised.
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.[19]
(citations omitted)
[18] (1997) 189 CLR 579.
[19] Ibid, 601-604.
Brennan CJ was discussing an inherent power to allow intervention, rather than a rules based power. Nonetheless, it is important to note that he considers that two criteria should exist before intervention is allowed: first, that the intervener has an interest that will in all probability be affected by the decision in the matter, and second, that the parties may not put before the Court all of the submissions required by the Court to do justice between the parties. In these circumstances, a non-party with “the necessary legal interest” should be granted leave to intervene. In Roadshow Films, the High Court made it clear that these were two separate criteria that should be fulfilled:
In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria, are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.
Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.[20]
(citations omitted)
[20] Supra, 223-224.
Rule 21.1(4) of the UCR uses very different language to r 89. It does not refer to the interests of the applicant for joinder, or their purpose in seeking joinder. I do not consider, however, that this leads to a conclusion that different considerations should be taken into account when determining when it is that a non-party should be given the opportunity to be heard in relation to the proceeding. A non-party should only be given an opportunity to be heard in the circumstances identified by Brennan CJ, that is, where their interests may be affected by a decision in the action. Thus, in my view, the words of Gray J in Jeavons and Harrington are equally applicable to r 21.1(4).
Taking into account all of the evidence, and in particular the evidence of Mr Fletcher, I have reached the view that the general beneficiary companies should be joined as interested parties to the second action. This is for the following reasons.
First, I am concerned that the trustees have been prevented from being represented in both actions. Mrs Hamilton has used her power as a director to prevent the two respondents at whom orders in this matter will be directed from being heard in the action. This gives rise to the inference that the Court may not receive all of the submissions which it should receive in order to make the correct determination in the matter.
Second, it is clear that the beneficiaries are in conflict. Indeed, the controlling minds of the trustees are in conflict. It must be assumed that there is a reasonable likelihood that the trustees will be prevented from carrying out their tasks by the deadlock in the boards. In the circumstances it seems to me that this matter falls within those proceedings described by Brooking J in Young in the passage set out at [33]. Given that this action involves the administration of the trusts, in circumstances where the beneficiaries are in conflict, and the trustees have effectively been both stymied from carrying out their duties and from appearing in this action, it would be appropriate to allow both groups of beneficiaries to be heard. As the proceedings are currently constituted, only one group of beneficiaries, the applicants in the first action, will be heard.

Third, I am not satisfied that the general beneficiary companies’ position is so aligned with that of Ms Roche in her personal capacity, that their joinder to the proceedings will not present a different position to the Court. It is clear from Mr Fletcher’s affidavit that, while Ms Roche carries the day to day task of instructing lawyers on behalf of the general beneficiary companies, she does so, having consulted with the boards of the companies. She does not do so in isolation, and based on her own personal views or opinions of the matter. She remains answerable to the boards for the instructions that she gives, and is required to ensure that her instructions accord with the views of the boards. This can be contrasted to the instructions that she gives her lawyers who appear for her in her personal capacity.
Fourth, I accept that there are situations where it would not be appropriate to join beneficiaries to an action involving a trust, or where it would not be appropriate to join certain of them. In these matters, the general beneficiaries are very broadly defined, and I accept that it may not be appropriate for all general beneficiaries to be joined. The example given by Mr Duggan QC at [37] of FND 60 is an example of such a situation. The companies that seek joinder, however, are far removed from that example.
The general beneficiary companies that seek joinder are involved in long term business arrangements, not merely as third party creditors, debtors or contractors, but as part of a complex arrangement that involves many entities and individual transactions. The business operations of the general beneficiary companies are enmeshed with those of the trusts and vice versa. A fundamental change in the business arrangements of the trusts will have a significant impact on the functioning of the Group as a whole. By this, I do not mean to suggest that such a change would be good, bad, in or against any party’s interests. It is clear that the matters that have been set out in the affidavit material on all sides are hotly contested. But it must be acknowledged that any change in the current arrangements will have more than a ripple effect on the Group collectively and on its individual members. While the applicants in the first action have not specified what they intend to do if they are put in place as trustees of the trusts, the correspondence exhibited to Mr Fletcher’s affidavit makes it clear that a significant shift in approach is contemplated if this occurs. I consider that the general beneficiary companies come within the category of beneficiaries identified in Young and Wales.
For the reasons set out above, I consider that the general beneficiary companies satisfy the criteria set out by Brennan CJ.
I turn to consider the other type of consideration described by Gray J, the consideration of the effect that the joinder will have on the orderly running of the action.
I have already considered, albeit in different terms, whether the intervention is apt to assist the Court. I have already found that the general beneficiary companies are likely to present a view that will not be put to the Court by either the applicants or Ms Roche, and that cannot be put to the Court by the trustees as they are prevented from appearing. As a result, I consider that the intervention of the general beneficiary companies is apt to assist the Court.
I also consider that it is in the parties’ interests to allow the intervention. The Court is more likely to reach the correct result, when presented with all of the submissions that it requires.
There is no doubt that the joinder of the general beneficiary companies will result in additional costs being incurred and will cause more time to be required in the preparation and hearing of the actions. I do not consider, however, that this is unnecessary in order to achieve a just result. Given that they will be presenting a view different to that presented by other parties, the Court will be assisted by their intervention.
Conclusion
The second action
The general beneficiary companies should be joined to the second action as interested parties, on an unlimited basis. The companies seeking joinder solely for the purpose of the uplift application should be joined for this purpose only.
The first action
Given my conclusion in respect of the second action, I do not need to consider whether it is appropriate to revisit the interlocutory order I made at the first directions, to join the general beneficiary companies as interested parties. Further, I consider that it is appropriate that the three additional general beneficiary companies should be joined as interested parties. I note that the remaining companies were joined solely for the purpose of allowing them to bring the uplift application. They will cease to be interested parties once this application has been finalised.
Orders
The first action CIV-21-000520
1.The oral application for disjoinder is dismissed.
2.FDN 48 is allowed. Echor DFS Family Nominees Pty Ltd ACN 117 169 892, Echor DFS Finance Pty Ltd ACN 117 186 839 and Echor DFS Holdings Pty Ltd ACN 117 186 768 are joined as interested parties on an unlimited basis.
The second action CIV-21-006244
1.FDN 11 is allowed on the basis that the companies listed in the Schedule of Interested Parties in FDN 11 at 1 to 32 and 62 to 64 are joined on an unlimited basis, and the companies at 33 to 61 and joined solely for the purpose of allowing them to bring the uplift application.
I will hear the parties on the question of costs.

[2021] SASC 136

30 November 2021