McLaren v Retail Information Systems Pty Ltd
[2011] FMCA 716
•16 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McLAREN v RETAIL INFORMATION SYSTEMS PTY LTD | [2011] FMCA 716 |
| PRACTICE AND PROCEDURE – Application to join an additional respondent in proceedings alleging misleading conduct relating to employment. |
| Competition and Consumer Act 2010 (Cth), s.31 Schedule 2 Federal Court of Australia Act 1976 (Cth), ss.22, 31A Federal Magistrates Act 1999 (Cth), ss.3, 14, 17A, 42 Trade Practices Act 1974 (Cth), ss.51A, 53B, 75B Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth) Federal Court Rules (Cth), O.6 r.2, O.6 r.9 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 7.01, 11.01, 11.02 |
| All Fasteners (WA) v Grant Caple Pty Ltd & Ors [2003] FMCA 430 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier and Others (No 4) (2010) 89 IPR 274; [2010] FCA 1202 Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1; [2004] FCAFC 175 Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No.4) [2009] FMCA 291 The State of Queensland and Another v J L Holdings Pty Limited (1997) 189 CLR 146; [1997] HCA 1 |
| Applicant: | NEIL MCLAREN |
| Respondent: | RETAIL INFORMATION SYSTEMS PTY LTD (ACN 082 374 258) |
| File Number: | SYG 1084 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 1 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Thew |
| Solicitors for the Applicant: | Holman Webb Lawyers |
| Counsel for the Respondent: | Mr B Miles |
| Solicitors for the Respondent: | Biddulph & Salenger |
| Counsel for Mr R H Best: | Mr B Miles |
| Solicitors for Mr R H Best: | Biddulph & Salenger |
ORDERS
Leave be granted to the applicant to join Robert Henry Best as the second respondent to the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1084 of 2011
| NEIL MCLAREN |
Applicant
And
| RETAIL INFORMATION SYSTEMS PTY LTD (ACN 082 374 258) |
Respondent
REASONS FOR JUDGMENT
This is an application for leave to join Mr Robert Henry Best as a respondent to proceedings commenced by Mr McLaren against Retail Information Systems Pty Ltd (RIS) on 30 May 2011 and to amend the application and points of claim filed in those proceedings to reflect the applicant’s reliance on s.75B(1)(c) of the Trade Practices Act 1974 (Cth) (the TPA) in relation to Mr Best.
Relevantly, in the substantive proceedings it is alleged that (in addition to breaches of contract) RIS engaged in conduct in breach of s.31 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) in relation to the employment of Mr McLaren. The applicant seeks to recover damages from RIS.
It now appears that in fact reliance is sought to be placed on s.53B, the equivalent provision in the Trade Practices Act (see Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth)). No issue was taken in this respect in relation to the joinder application.
Both s.31 of Schedule 2 of the Australian Consumer Law and s.53B of the TPA restrain a corporation “in relation to employment that is to be, or may be, offered” by the corporation or by another person from engaging in “conduct that is liable to mislead persons seeking the employment” as to the “availability, nature, terms or conditions of the employment; or…any other matter relating to the employment”.
It is apparent from the application and points of claim that Mr McLaren relies on what were said to be representations made to him in or about July 2009 by Mr Best, in his capacity as the then Chief Executive Officer of RIS, prior to Mr McLaren’s employment by RIS in September 2009 that:
(a) After commencement of employment with the Respondent in the role of General Manager, the Applicant would by December 2009/January 2010 transition by way of promotion to the role of Managing Director (the first representation).
(b) The Applicant would thereafter transition by way of promotion to the role of Chief Executive Officer (the second representation) (at which time Mr Best would be “released” from this role).
(c) The term of the employment would be 3 years (until about June 2009) (the third representation).
(d) The Employment included short term incentives in the form of monetary payments and long term incentives in the form of options or shares (the fourth representation).
Particulars
(i) Email from Mr Best to the Applicant dated 10 July 2009.
(ii) Telephone conversations between Mr Best and the Applicant between December 2008 and August 2009, and meetings between Mr Best and the Applicant dated 11 February 2009 and 30 June 2009.
RIS filed a response on 18 July 2011 that was prepared by Mr Best personally. He also affirmed a supporting affidavit on 18 July 2011 attesting to the truth of the facts set out in the response to the best of his knowledge and belief. When the matter came before the court on 21 July 2011 Mr Best indicated that he intended to seek leave to appear for RIS. He did not in fact pursue such an application and RIS is now represented by a lawyer.
Relevantly, in the response it was pleaded that at relevant times Mr Best was the sole director (as well as the CEO) of RIS.
The response addressed pre-contractual negotiations with Mr McLaren and information about RIS said to have been discussed with him, in particular about the financial situation of RIS, in detail. The response “dispute[d]” the matters said to constitute precontractual representations in the points of claim. It described conversations and communications between Mr McLaren and Mr Best, both prior to and after Mr McLaren started employment with RIS.
According to counsel for Mr McLaren, on review of the response filed by Mr Best, the applicant’s legal representatives received instructions from him to seek leave to join Mr Best to these proceedings.
An application in a case to that effect was filed on 3 August 2011.
The applicant now relies on an amended application in a case filed on 18 August 2011 and a supporting affidavit affirmed by him on 17 August 2011.
Leave is sought to join Mr Best to these proceedings on the basis that it is intended to amend the application and the points of claim to assert that he was involved in the alleged statutory contravention by RIS pursuant to s.75B(1)(c) of the TPA, on the basis that he was directly or indirectly a party to or knowingly concerned in the contravention.
In support of the contention that there is a basis for such a claim against Mr Best, reliance was placed on the fact that RIS’s response was prepared by Mr Best and described his central involvement in RIS activities at the relevant time as well as claims in Mr McLaren’s affidavit of 17 August 2011 about what occurred in meetings and other contact with Mr Best (and a Mr Nagy) prior to Mr McLaren’s employment by RIS (in particular in relation to the terms of his employment and the company’s financial position). Mr McLaren’s affidavit also refers to conversations about RIS securing funding in relation to development and sale of a software solutions product for bank EFTPOS terminal fleets and expansion into the international market.
Mr McLaren’s claim is that in reliance on or induced by the representations by Mr Best on behalf of RIS relating to his employment referred to above; he executed a contract of employment with RIS; that he subsequently became aware that RIS was experiencing severe financial difficulties; that the promised transition to the role of Managing Director and Chief Executive Officer did not happen; that his other concerns were not addressed by Mr Best and that in May 2010 he accepted RIS’s repudiation of the contract.
At this stage there is no substantive evidence from RIS or from Mr Best before the court (although Mr Best was given the opportunity to file any affidavit evidence in relation to the application to join him as a party). The response “disputes” the asserted representations. Clearly the allegations made by Mr McLaren are matters that would have to be determined at a hearing of the substantive matter. At this stage what is in issue is whether the court should grant leave to the applicant to join Mr Best as a respondent.
The applicant requires the leave of the court to join Mr Best as a party afer the first court date (see r.11.02(2) of the Federal Magistrates Court Rules 2001 (Cth)). He sought to rely on the court’s power to allow an amendment to any document under r.7.01 of the Rules as well as r.11.01(1) which provides that, subject to any order of the court, “a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding”.
Counsel for Mr Best opposed leave being granted. It was acknowledged that the matter was one for the discretion of the court at large, subject to it being exercised judicially, but it was also contended that there had been no proper explanation for why Mr Best was not joined in the first place, that there was no proper purpose to be served by joining him and that the claim against him had no reasonable prospects of success.
Whether or not to grant the leave sought in this case is a matter within the discretion of the court having regard to all the circumstances of the case. The discretion to join a new party is “a wide one” (see Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier and Others (No 4) (2010) 89 IPR 274; [2010] FCA 1202 at [8]). It is relevant to have regard to the objects of the Federal Magistrates Act 1999 (Cth) in s.3, the requirement in s.42 that in proceedings before it the court “must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” and the objects of the Rules (see r.1.03) (see Hogan v Riley & Ors [2008] FMCA 794 at [7] – [12]). As Lucev FM pointed out in Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No.4) [2009] FMCA 291 at [31], read together these provisions make it apparent that this court is intended to operate in as informal a manner as possible in the exercise of judicial power, that it is not to be protracted in its proceedings, that it is to resolve proceedings justly, efficiently and economically using streamlined procedures and that it is to avoid undue delay, expense and technicality.
Section 14 of the Federal Magistrates Act is of particular relevance.
It recognises the obligation on the court to grant such remedies as the court thinks just “to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible”, all matters in controversy between the parties “may be completely and finally determined” and, importantly “all multiplicity of proceedings concerning any of those matters may be avoided”. This provision in similar to s.22 of the Federal Court of Australia Act 1976 (Cth) which, as the Full Court of the Federal Court observed in McLeish v Faure (1979) 25 ALR 403; [1979] FCA 38 at 413, is to be “construed liberally in order to achieve the object of the Act in attempting to prevent the necessity of a multiplicity of legal proceedings to be entered into by a party seeking relief”.
The applicant placed reliance on All Fasteners (WA) v Grant Caple Pty Ltd & Ors [2003] FMCA 430 a decision of McInnis FM in relation to an application to amend a statement of claim to join a respondent based, as in this case, on an allegation of involvement in a contravention of the TPA within s.75B of that Act.
Insofar as reliance was placed on the reference by his Honour to the observations in the High Court in The State of Queensland and Another v J L Holdings Pty Limited (1997) 189 CLR 146; [1997] HCA 1 that must now be seen in light of the approach taken in the more recent High Court decision of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Similarly, insofar as McInnis FM referred to the requirement that the court consider whether there is an arguable claim, in the context of the Federal Magistrates Act as it now stands the applicant must show that there is an arguable case which would be sufficient to resist the entry of summary judgment by the person who is sought to be joined pursuant to s.17A of the Federal Magistrates Act. Section 17A was inserted in the Act in 2005. It is in the same terms relevantly as s.31A of the Federal Court of Australia Act (see All Fasteners (WA) at [43] and cf Apotex at [8]).
Relevantly, however, in All Fasteners (WA) notwithstanding that the proposed statement of claim “may be regarded as less than adequate”, (at [39]) there was nonetheless found to be “sufficient in the material” before the court “at least to establish an arguable claim” against a director of a respondent corporation. Despite that director’s claimed limited involvement in the affairs of the company in All Fasteners (WA) it was said to be at least arguable that an “inference of knowledge by her as to the existence of their representations and their falsity” could be drawn (at [40]). The court had regard to any potential prejudice to the party to be joined but concluded that her presence was necessary to ensure that the questions raised between the original parties to the proceedings were “effectively and completely disposed of” (at [43]).
In this case the absence of a proposed amended points of claim is not fatal, given the evidence that is before the court. Mr Best is said to have made the representations in question. As discussed further below, it is arguable that the necessary inferences to bring him within s.75B(1)(c) may be drawn to the standard necessary to resist a s.17A application. His presence is necessary to ensure that the same questions raised between Mr McLaren and RIS and sought to be raised against Mr Best are effectively and completely disposed of without the need for a multiplicity of proceedings.
Similarly, in Comit Farm Produce Pty Ltd v Macks [2005] FMCA 65 Lindsay FM proceeded on the basis that considerations commonly relevant to the determination of a joinder application were “the impact of the joinder upon the efficient conduct of the proceedings between the already existing parties”, the need to “avoid the risk of inconsistent findings in different proceedings” insofar as possible and whether there was an explanation for the failure to include the person in question as a party at the start of the proceedings (at [33]).
As Neville FM pointed out in Hogan v Riley at [14] there is abundant authority in relation to equivalent parts of the Federal Court Rules (Cth) (see former O.6 rr.2 and 9) “to the effect that such Rules should be interpreted and applied liberally”. His Honour referred to the flexibility of approach called for in determining whether an additional party should be joined and to the reference in News Limited and Others v Australian Rugby Football League Limited and Others (1996) 64 FCR 410; [1996] FCA 870 at 525 to the need to have regard to “the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected”.
I have had regard to these principles.
I was not addressed in any detail on the test for summary judgment in s.17A of the Federal Magistrates Act and the different procedural regime which it has introduced (see Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [60] per Hayne, Crennan, Kiefel and Bell JJ). In Spencer their Honours held that s.31A of the Federal Court of Australia Act (the equivalent of s.17A) applied “if, and only if,” the court was satisfied that there was no reasonable prospect of success. As French CJ and Gummow J pointed out at [24], the power in such a provision should be exercised with caution, particularly in circumstances that involve a high degree of uncertainty about the ultimate outcome if the matter were to go to trial. The same must be said about s.17A of the Federal Magistrates Act.
As Mr Miles for Mr Best acknowledged, what is in issue is whether the court is satisfied that the applicant has no reasonable prospects of success against Mr Best in the sense considered in s.17A of the Act. This requires that the applicant show that the case against Mr Best is sufficient to resist the entry of summary judgment against him by Mr Best on the basis that he has no reasonable prospects of successfully prosecuting that part of the proceeding.
There was said to be an absence of factual assertions such as to establish that the claim against Mr Best had any reasonable prospects of success. It is the case that one of the difficulties in this case is that the applicant does not rely on proposed amended points of claim pleading the intended allegations in relation to Mr Best. The existing points of claim assert that he made the representations in question that are the basis for the alleged contravention. However counsel for Mr McLaren submitted that the response filed by Mr Best on 18 July 2011 and the McLaren affidavit of 17 August 2011 demonstrated an arguable claim that Mr Best was involved in the contravention alleged against RIS within the meaning of s.75B(1)(c) of the Act on the basis that he was directly or indirectly knowingly concerned in the contravention. It was acknowledged that in demonstrating accessorial liability on this basis the applicant must be able to show that Mr Best was an intentional participant in any contravention and that the necessary intent must be based on knowledge of the essential elements of the contravention (Yorke and Another v Lucas (1985) 158 CLR 661 at 670; [1985] HCA 65). It was also acknowledged that s.51A of the TPA would have no application in demonstrating accessorial liability on the part of Mr Best (Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1; [2004] FCAFC 175 at [11] – [13]). The applicant would have to prove at a final hearing that Mr Best had actual knowledge that the representations were made and either that they were misleading or that the respondent corporation had no reasonable grounds for making the representations (Australian Competition & Consumer Commission v Michigan Group Pty Ltd (ACN 065 378 029) [2002] FCA 1439 at [303] and Quinlivan at [15]).
It was submitted by the applicant that the material before the court established an arguable case that the circumstances supported an inference that Mr Best (who is said to have made the representations which are said to constitute conduct in breach of s.53B in relation to employment offered by RIS liable to mislead persons seeking the employment as to the availability, nature, terms or conditions or any other matter relating to the employment) was centrally involved in the activities of RIS and could be inferred to have known the essential facts going to the representations such that they were liable to mislead in the requisite sense or that RIS had no reasonable grounds for making the representations.
The applicant also pointed out that while the element of intentional participation requires actual rather than constructive knowledge, the knowledge required to invoke s.75B(1)(c) could be inferred where there was a combination of suspicious circumstances and a failure to inquire in the sense considered in Compaq Computer Australia Pty Ltd v Merry and Others (1998) 157 ALR 1; [1998] FCA 968 and Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 220; [1988] HCA 57. It was submitted that this was such a case.
As stated by Finkelstein J in Compaq Computer at [2]:
…it is necessary to establish that the person has intentionally participated in the contravention. To establish intentional participation it must be proved that the person has knowledge of the essential matters that make up a contravention of s 52(1): see generally Yorke v Lucas [1985] HCA 65; 158 CLR 661; Edwards v R [1992] HCA 19; (1992) 173 CLR 653. In this regard knowledge means actual and not constructive knowledge. For example it would not be sufficient merely to show that the person charged with accessorial liability had shut his eyes to the obvious if that is intended to be a substitute for actual knowledge: Giorganni v R [1985] HCA 29; (1985) 156 CLR 473. Of course, where there is a combination of suspicious circumstances and a failure to make an enquiry it may be possible to infer knowledge of the relevant essential matters: Pereira v Director of Public Prosecutions…
Also see Director General, Department of Services, Technology and Administration v Veall & Ors (No 2) [2011] NSWSC 358 at [21] and the authorities cited therein.
I have borne in mind that there are factual issues capable of being disputed and that summary dismissal should not be awarded simply because a party is unlikely to succeed on a factual issue. There is no proposed pleading in relation to Mr Best before the court in these proceedings but there is the response prepared by Mr Best and Mr McLaren’s affidavit evidence. The applicant intends to assert actual knowledge of the respondent’s financial circumstances on the part of Mr Best. It is said that this could be inferred from all the circumstances including Mr Best’s apparent knowledge of the financial status of RIS, RIS’s difficult financial position some three months after the applicant entered the contact of employment as referred to in his affidavit, the fact that there was said to be an asserted need for RIS to raise further capital at that time as referred to in the response prepared by Mr Best and alleged significant cash flow problems. It was said to be arguable that Mr Best either knew of or ought to have been suspicious and made inquiries in respect of the respondent corporation’s financial situation at the time of making the representations (or at least before the applicant entered into the contract of employment with RIS).
There is material before the court in support of the claim that Mr Best, who was the Director as well as the CEO of RIS at the relevant time, knew the relevant representations were made to Mr McLaren (as he made them) and that he did so in circumstances where he had a central involvement in and knowledge of the business. It is arguable that he had the requisite level of knowledge about the situation of RIS. Such material supports an inference that Mr Best had actual knowledge of the essential elements constituting the alleged contravention and knew of the (alleged) misleading nature of the representations in question or that RIS had no reasonable grounds for making them (or that the financial circumstances of RIS could be said to be suspicious such that Mr Best’s knowledge could be inferred if he had failed to make inquiries). It is not possible at this stage to make any meaningful determination about the strength of Mr McLaren’s case, but also there is no evidence to the contrary.
It is relevant in this respect that the alleged conduct is said to be within s.53B of the TPA which extends to conduct of RIS liable to mislead persons seeking employment, not just as to the financial situation of the company but more widely in relation to matters such as the availability, nature, terms or conditions or any other matter relating to the employment.
Although the evidence is at a preliminary stage, I am of the view that, having regard to the points of claim and response and Mr McLaren’s affidavit, sufficient material has been presented such that Mr McLaren would avoid a successful application for summary judgment by Mr Best.
On balance, bearing in mind the caution that is required when considering the test under s.17A (see French CJ and Gummow J in Spencer at [24] – [26]), and bearing in mind the totality of the evidence presently before the court I am not satisfied that Mr McLaren would have no reasonable prospects of success in prosecuting the intended claim against Mr Best. This is not a case in which Mr Best is sought to be made liable only by reference to the fact that he held office as director of RIS. There is evidence of his central involvement in RIS and his dealings with Mr McLaren relevant to whether an inference of actual knowledge could be drawn.
Moreover, insofar as the issues raised for Mr Best relate to asserted inadequacies and insufficiencies in the pleadings, deficiencies in pleadings do not warrant summary judgment under s.17A of the Act. Any alleged inadequacies in the points of claim are a matter to be addressed after any joinder application is determined and the allegations against Mr Best (if permitted) have been fully formulated (see Spencer at [23] and Universal Music Australia Pty Ltd v Cooper [2004] FCA 78).
It is also relevant to have regard to the timing and circumstances of the joinder application and to any explanation for the failure to include Mr Best as a party at the outset of the proceedings. Delay has to be considered in the context in which it occurs. In this case the joinder application was made at a fairly early stage in the proceedings. It has not been a delay of substance. It has not occasioned an adjournment of any hearing.
The explanation given by the applicant is that the appropriateness of joining Mr Best only became apparent after he prepared the detailed response for RIS and having regard to the content of the response.
It was said that the response and Mr Best’s role in preparing the response suggested that he was central to the operation and management of the respondent during the relevant period. As the sole director of RIS during the relevant period, not only was he said to have made each of the representations on behalf of the respondent (as pleaded in the points of claim), but also to have been and to have remained central to the operation and management of the respondent prior to and during the employment of the applicant with the respondent. The applicant took steps shortly after the filing of the response by Mr Best to seek his joinder.
While Mr Best contended that this was not a proper explanation, in my view it does provide some explanation. I have borne in mind that the mere fact that Mr Best made the representations in issue would not of itself necessarily have sufficed as the basis for his liability (see Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865).
The preparation and content of the response suggests that Mr Best’s involvement with the activities of the respondent was in fact central and significant.
Contrary to the contention for Mr Best, on the evidence before the court there is nothing to suggest that Mr McLaren is seeking to join him for a purpose that is not a proper purpose. The fact that there is no evidence or suggestion at this stage that RIS would be unable to pay the damages sought and that no additional damages are sought against Mr Best does not mean that there is not a proper basis for joining him as a party who is, arguably, involved in a contravention. In particular, there is nothing to suggest a lack of good faith or an abuse of process or that the proceedings were brought to harass Mr Best personally as was submitted by his counsel.
The Trade Practices Act contemplates and allows for the respondents to a claim under that Act to include persons involved in a contravention in the sense provided for in s.75B of the Act. That potential liability is not limited to circumstances in which different claims or greater damages could be obtained against such a person (as distinct from the corporation which is said to be primarily liable). It is not an improper purpose to seek to proceed in the one matter so that all matters in dispute relating to the same subject matter and arising out of the same transactions can be dealt with by the court at the same time. In order to avoid a multiplicity of hearings it is appropriate, having regard to the provisions in the Federal Magistrates Act and Rules, to deal with the claims said to have arisen out of the one transaction or set of transactions in the one proceeding. This would also avoid the possibility of inconsistent findings in different proceedings. It has not been established that a greater injustice would be done to Mr Best by him being joined to these proceedings than by the court rejecting the application for joinder, such that the applicant would have to commence a separate proceeding against Mr Best in which the same questions of law or fact might arise.
The circumstances and nature of this application are not inconsistent with the court’s obligations to endeavour to ensure that proceedings are not protracted and that they are resolved justly, efficiently and economically. Joinder is consistent with s.14 of the Federal Magistrates Act that seeks to avoid a multiplicity of proceedings concerning a matter in dispute. It is in the interests of justice to avoid multiple actions to save time and expense and to ensure that all matters arising out of the same circumstances are “effectually and completely determined and adjudicated upon” (Comcare v John Holland Rail Pty Ltd (2009) 185 IR 191; [2009] FCA 660 at [13]).
I am satisfied that the joinder of Mr Best in these proceedings would be more conducive to a just resolution of the dispute arising out of the transactions in question, having regard to the need and desirability to limit as far as practicable the costs and delay of litigation. Joinder of Mr Best as a respondent is unlikely to result in unfairness to him in all the circumstances (see Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943 at [25] – [27] and cases cited therein).
I also note that the relevant case management issues considered by the High court in Aon arose in a very different context to the situation in this case. In this case no evidence has been filed in the substantive proceedings and mediation has not occurred. The matter is not at a stage where any disruption to hearing dates would be occasioned by making the orders sought. While some time would be required to allow the applicant to file an amended application and amended points of claim, it appears that it may have been necessary for amended points of claim to be filed in any event in circumstances where it is clear from the present application in a case that it is intended to place reliance on the Trade Practices Act. I am not persuaded that the likely delay occasioned by joinder of Mr Best is of such a magnitude as to be contrary to principles of good case management or the court’s objects and Rules.
I have considered the possibility of prejudice to Mr Best by reason of being made a party to these proceedings, but am of the view that in circumstances where it seems likely that he may well be required to be a witness for the respondent in any case (having regard to the content of the response prepared by him), it is more efficient and less unfair that the claims against him personally be addressed in the same proceedings rather than in additional separate proceedings. That is particularly so in circumstances where the claims arise out of a common set of facts. It is important to avoid the possibility of conflicting conclusions in relation to what may be disputed facts. Any prejudice that would be caused to Mr Best by being joined as a respondent to these proceedings does not outweigh the prejudice to Mr McLaren if the application to join Mr Best as a respondent was not granted and he was required to undertake separate proceedings against Mr Best in relation to these matters. I have also taken into account the public interest in reducing the multiplicity of proceedings and the minimisation of costs and am satisfied that the leave sought by the applicant should be granted.
Leave should also be granted to the applicant to file an amended application and amended points of claim. I will hear the parties in relation to directions and also as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 September 2011
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