FEDERAL COURT OF AUSTRALIA
Hillier v Martin (No 17) [2022] FCA 1156
File number(s): SAD 113 of 2020 Judgment of: O'SULLIVAN J Date of judgment: 20 September 2022 Date of publication of reasons: 18 October 2022 Catchwords: PRACTICE AND PROCEDURE – application by applicant relying on r 1.35 of the Federal Court Rules 2011 (Cth) that contrary to FCR 9.05(3) the date upon which a joinder order made on 22 August 2022 is to take effect is 23 May 2022 – whether it is in the interests of justice for the joinder to take effect on 23 May 2022 – where the order will not permit the applicant to overcome a limitation period defence – where no prejudice suffered by the respondents and proposed respondents – where the delay in bringing the joinder application was not a reason either to refuse to make the joinder order or to refuse to make an order that it take effect on 23 May 2022 – where the respondents and proposed respondents may plead limitation defences – application for joinder order to take effect on 23 May 2022 granted
PRACTICE AND PROCEDURE – application seeking an order granting leave to file a further amended originating application to reflect the additional parties, new causes of action and relief – where FCR 9.05(3) dispensed with – application granted
PRACTICE AND PROCEDURE – oral application seeking leave to file a fourth amended statement of claim including a plea of s 48 of the Limitations of Actions Act 1936 (SA) – where no prejudice suffered by the respondents or proposed respondents – application granted
Legislation: Federal Court Rules 2011 (Cth), rr 1.32, 1.35, 9.05, 9.05(1)-(3), 16.53
Limitation of Actions Act 1936 (SA), s 48
Cases cited: Barnes v Addy (1987) LR 9 Ch App 244
Dudley (Liquidator) v RHG Construction Fitout and Maintenance Pty Ltd [2019] FCA 1355
Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394
Hillier v Martin (No 14) [2022] FCA 984
Lee v Parker (No 2) [2022] FCA 582
Martin v Hillier [2022] FCA 351
McAlister v New South Wales and Ors [2014] FCA 702; (2014) 223 FCR 1
Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 46 Date of hearing: 20 September 2022 Counsel for the Applicant: Mr R Whitington KC with Ms H Doyle Solicitor for the Applicant: Sykes Bidstrup Solicitor for the First and Second Respondents: Mr A Wright appearing for WK Lawyers For the Third Respondent: No appearance Counsel for the Prospective Respondents: Mr D Blight KC Solicitor for the Prospective Respondents: Gilchrist Connell ORDERS
SAD 113 of 2020 BETWEEN: JAMES HILLIER
Applicant
AND: VICTORIA MARTIN
First Respondent
NORDBURGER OPERATIONS PTY LTD
Second Respondent
ERIK VARI PTY LTD (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF…
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- AGLC
- Hillier v Martin (No 17) [2022] FCA 1156
- Case
- [2022] FCA 1156
- Decision Date
CaseChat Overview and Summary
The court found that the Federal Court Rules did not exclude the operation of the discretion contained in r 1.32 and r 1.35, and that there was no reason to limit the exercise of the discretion under r 9.05. The court considered that the proposed respondents had not suffered any prejudice as a result of the delay in bringing the joinder application, and that the delay was not a reason to refuse to make the joinder order or to refuse to make an order that it take effect on 23 May 2022. The court also found that the respondents and proposed respondents may plead limitation defences, but that this did not prevent the joinder order from taking effect on 23 May 2022.
The court granted the application for the joinder order to take effect on 23 May 2022, and also granted leave for the applicant to file an amended statement of claim and a further amended originating application. The court reserved costs and listed the matter for a Case Management Hearing.
Orders
Orders of the court
1. Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) (FCR), leave is granted 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.
2. FCR 9.05(3) is dispensed with.
3. Pursuant to FCR 1.32 and 1.35, the joinder of parties pursuant to order 1 hereof, is to take effect from 23 May 2022.
4. Pursuant to FCR 16.53, leave is granted to the applicant to file and serve by on or before 4 October 2022, an amended statement of claim in terms of annexure JH-77 (fourth amended statement of claim) annexed to the affidavit of James Hillier sworn and filed on 23 May 2022:
(a) Subject to the applicant pleading particulars of the fourth respondent’s knowledge pleaded in [72H] of the fourth amended statement of claim; and
(b) The applicant is granted leave to plead in the fourth amended statement of claim an application pursuant to s 48 of the Limitation of Actions Act 1936 (SA) to extend the time within which the causes of action introduced into these proceedings by the fourth amended statement of claim may be served.
5. Pursuant to FCR 16.53 leave is granted to the applicant to file a further amended originating application filed on 5 July 2021 to reflect the relief sought in the fourth amended statement of claim to be filed in accordance with order 4 hereof, by on or before 4 October 2022. For the avoidance of doubt, the additional relief claimed in the further amended originating application reflecting the new causes of action now sought in the fourth amended statement of claim is taken to have been claimed as at 23 May 2022.
6. The costs of the applicant’s interlocutory application dated 16 May 2022 are reserved.
7. The first and second respondents’ costs thrown away by reason of order [5] hereof is reserved.
8. The matter is listed for a Case Management Hearing at 9.00am (ACDT) on Wednesday 2 November 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The proposed respondents submit that the applicant has not demonstrated a good reason to depart from FCR 9.05(3) and that the Court should not order that the joinder order take effect on a date which deprives them of limitation defences that would otherwise be available to them. They refer to Dudley (Liquidator) v RHG Construction Fitout and Maintenance Pty Ltd [2019] FCA 1355 [44] where Jackson J said that r 9.05(3) evidences an intention to depart from the principle that if a new respondent is joined to an existing action, for the purposes of limitation of actions, the joinder is automatically taken to have effect from the filing of the originating applications.Consideration - backdating the joinder order I set out the history of this application in Hillier v Martin (No 14) at [1], [11]-[20], [24]-[36]. The applicant’s application to join the proposed respondents to the proceedings was filed on 16 May 2022 and served on the first and second respondents as well as the proposed respondents. It was amended by leave granted on 14 June 2022 to add Norman Waterhouse (a Firm) to the proposed respondents. An application to join a party to proceedings is often made ex parte. However, given the application to join the proposed respondents was directed at the first and second respondents’ solicitors, it was entirely appropriate to serve the joinder application on the proposed respondents. Had it been the case that the application proceeded ex parte, in principle, it may well have been that the orders joining the proposed respondents to these proceedings could have been made following the filing of the eighth Hillier affidavit on 23 May 2022. The proposed respondents sought the opportunity to make submissions in opposition to any order joining them to the proceedings. The consequence was that although the joinder application was made on 16 May 2022, argument on the application was delayed until 14 June 2022, at which time judgment was reserved. Judgment was further delayed by an ultimately unsuccessful application by a non-party, Thomas Patrick Martin, to re-open argument for the purpose of him making submissions and tendering evidence on the joinder application: Hillier v Martin (No 13) [2022] FCA 939. Judgment in this matter was delivered on 22 August 2022. There is nothing in FCR 9.05 that excludes it from the operation of FCR 1.32 and 1.35. Had it been intended that there be a limit on the operation of the discretion contained in either of those rules, it would have been easy to do so. The reference by the proposed respondents to the observations of Jackson J in Dudley do not assist them. I note that in McAlister v New South Wales and Ors [2014] FCA 702; (2014) 223 FCR 1, Edmonds J considered an application by a non-party to be joined to existing proceedings. His Honour held that the Court did not have power under FCR 9.05 to join a non-party to proceedings on that non-party’s application: at [21]. His Honour continued that even if he was of the view that the Court did have power, he was not satisfied that the threshold requirements in FCR 9.05(1)(b)(i) or (iii), which in that case needed to be satisfied in order to engage the power to order a joinder, had been met. In answer to a submission that the general power in FCR 1.32 allowed his Honour to make the joinder order notwithstanding the preconditions in FCR 9.05(1)(b) had not been satisfied, his Honour considered that if there was power under FCR 9.05 for a non-party to be joined as a party on its own application, a general power such as FCR 1.32 should not be exercised in a way that transcends the threshold requirements which FCR 9.05 placed on the exercise of the discretion under the specific power: at [23].