Hillier v Martin (No 14) - [2022] FCA 984

FEDERAL COURT OF AUSTRALIA
Hillier v Martin (No 14) [2022] FCA 984

File number(s): SAD 113 of 2020

Judgment of: O'SULLIVAN J

Date of judgment: 22 August 2022

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application seeking joinder of parties to the proceeding pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) and consequential amendment to the statement of claim – whether applicant demonstrates an affirmative case against the proposed respondents – whether the claims of knowing assistance, breach of trust, breach of fiduciary duty and conspiracy are properly pleaded – whether there was a delay in bringing the application – application allowed

Legislation: Federal Court Rules 2011 (Cth), rr 4.05, 9.05, 16.53

Cases cited:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Barnes v Addy (1874) LR 9 Ch App 244

Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654; (2010) 270 ALR 13

Comcare v John Holland Rail Pty Ltd [2009] FCA 660

Commonwealth Bank of Australia v Kojic [2016] FCAFC 186, (2016) 249 FCR 421

Krakowski v Eurolynx Properties Ltd [1995] HCA 68, (1995) 183 CLR 563

Crofter Hand-Woven Harris Tweed Co Ltd v Veitch [1942] AC 435

Farah Constructions Pty Ltd and Ors v Say-Dee Pty Ltd (2007) 230 CLR 89

Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609

Baden v Société Générale pour Favoriser le Dévelopment du Commerce et de l'Industrie en France SA [1993] 1 WLR 509

Martin v Hillier [2022] FCA 351

Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378

Winfield and Jolowicz on Tort, Peel A and Goudkamp J (ed), (19^th Ed, Sweet & Maxwell, 2014) [19-044]

Division: General Division

Registry: South Australia

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 105

Date of hearing: 14 June 2022

Counsel for the Applicant: Mr R Whitington QC with Ms H Doyle

Solicitor for the Applicant: Sykes Bidstrup

Counsel for the Respondents: There being no appearance

Counsel for the Prospective Respondents: Mr D Blight QC

Solicitor for the Prospective Respondents: Gilchrist Connell

REASONS FOR JUDGMENT

SAD 113 of 2020

BETWEEN:
JAMES HILLIER

Applicant

AND:
VICTORIA MARTIN

First Respondent

NORDBURGER OPERATIONS PTY LTD

Second Respondent

ERIK VARI PTY LTD (and others named in the Schedule)

Third Respondent

O’SULLIVAN J:
INTRODUCTION

The applicant (Mr Hillier) applies by interlocutory application filed 16 May 2022, amended by leave of the Court granted 14 June 2022 (interlocutory application), amongst other things, for leave to join Stephen Bradley Williams (Mr Williams), a legal practitioner and a Partner in the legal firm Norman Waterhouse; the legal firm Norman Waterhouse; (Norman Waterhouse) and Norman Waterhouse Lawyers Pty Ltd (NW Pty Ltd), to these proceedings as fourth, fifth and sixth respondents respectively (together, the proposed respondents). In these reasons I refer to Norman Waterhouse and NW Pty Ltd together…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FCA 984
Decision Date: 22 August 2022

CaseChat Overview and Summary

In the matter of Hillier v Martin (No 14), the Federal Court considered an interlocutory application by the plaintiff, James Hillier, seeking to join additional parties to the proceedings and amend the statement of claim. The proposed respondents were Stephen Bradley Williams, Norman Waterhouse Lawyers (a firm) and Norman Waterhouse Lawyers Pty Ltd. The application was brought pursuant to rules 9.05 and 16.53 of the Federal Court Rules 2011 (Cth). The plaintiff's claims against the existing and proposed respondents included knowing assistance, breach of trust, breach of fiduciary duty, and conspiracy. The central issue before the court was whether the plaintiff had demonstrated an affirmative case against the proposed respondents and if the claims were properly pleaded. Additionally, the court needed to determine whether there had been an undue delay in bringing the application.

The court found that the joinder of the proposed respondents, even for reasons of recovery, was permissible under rule 9.05 of the Federal Court Rules. The plaintiff had demonstrated a prima facie case against the proposed respondents, and the claims were properly pleaded. The court acknowledged that there might have been a delay in bringing the application, but this did not preclude the joinder if the other criteria were satisfied. The court granted the application, allowing the plaintiff to join the additional respondents and amend the statement of claim accordingly. The court noted that the plaintiff would need to plead how Ms Martin represented the matters in the proposed fourth amended statement of claim.

The final orders of the court were that leave was granted to the plaintiff to join Stephen Bradley Williams, Norman Waterhouse Lawyers (a firm), and Norman Waterhouse Lawyers Pty Ltd as respondents to the proceedings, pursuant to rule 9.05 of the Federal Court Rules. Additionally, leave was granted to the plaintiff to amend the third amended statement of claim to the terms of annexure JH-77 (proposed fourth amended statement of claim), subject to the plaintiff pleading the representation by Ms Martin. The court reserved the question of costs for further hearing between the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A consideration of those reasons demonstrate clearly that the joinder of the proposed respondents, even if it is for reasons of recovery, is within the rule.CONCLUSION It is for the reasons I have set out above that there will be an order:(a)Pursuant to FCR 9.05 granting leave to the applicant to join as respondents to the within proceedings Stephen Bradley Williams, Norman Waterhouse Lawyers (a Firm) and Norman Waterhouse Lawyers Pty Ltd; and(b)An order pursuant to FCR 16.53 granting leave to the applicant to amend the third amended statement of claim in the terms of annexure JH-77 (proposed 4th amended statement of claim) annexed to the affidavit of James Hillier sworn 23 May 2022 subject to the applicant pleading how it is that Ms Martin represented to the applicant the matters in [34] of the proposed 4th amended statement of claim. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SAD 113 of 2020
Judgment of:	O'SULLIVAN J
Date of judgment:	22 August 2022
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application seeking joinder of parties to the proceeding pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) and consequential amendment to the statement of claim – whether applicant demonstrates an affirmative case against the proposed respondents – whether the claims of knowing assistance, breach of trust, breach of fiduciary duty and conspiracy are properly pleaded – whether there was a delay in bringing the application – application allowed
Legislation:	Federal Court Rules 2011 (Cth), rr 4.05, 9.05, 16.53
Cases cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Barnes v Addy (1874) LR 9 Ch App 244 Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654; (2010) 270 ALR 13 Comcare v John Holland Rail Pty Ltd [2009] FCA 660 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186, (2016) 249 FCR 421 Krakowski v Eurolynx Properties Ltd [1995] HCA 68, (1995) 183 CLR 563 Crofter Hand-Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 Farah Constructions Pty Ltd and Ors v Say-Dee Pty Ltd (2007) 230 CLR 89 Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609 Baden v Société Générale pour Favoriser le Dévelopment du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 Martin v Hillier [2022] FCA 351 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 Winfield and Jolowicz on Tort, Peel A and Goudkamp J (ed), (19^th Ed, Sweet & Maxwell, 2014) [19-044]
Division:	General Division
Registry:	South Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	105
Date of hearing:	14 June 2022
Counsel for the Applicant:	Mr R Whitington QC with Ms H Doyle
Solicitor for the Applicant:	Sykes Bidstrup
Counsel for the Respondents:	There being no appearance
Counsel for the Prospective Respondents:	Mr D Blight QC
Solicitor for the Prospective Respondents:	Gilchrist Connell