Milodon Inc v USA Imports Pty Ltd

[1995] FCA 926

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 169 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:     MILODON, INC

Applicant

AND:     USA IMPORTS PTY LIMITED

First Respondent

PECO KENCEVSKI

Second Respondent

OLIVERA KENCEVSKI

Third Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 13 November 1995

REASONS FOR JUDGMENT

BURCHETT J.:

The principal question that has been raised in opposition to this application to join an additional respondent is whether it is incumbent upon the applicant to show a prima facie case against the proposed respondent before an order joining that respondent should be made.  Some two weeks ago, I invited counsel for the parties opposing the motion to cite any authority to support the proposition that such a prima facie case is required to be made out.  They have been unable to find any, and I am not, myself, aware of any such authority. 
     It seems to me that the applicant is entitled to ask the Court to exercise a much broader discretion than that in a case where, on the face of it, the application appears to be bona fide, and one which reflects what might well have been the position, had the applicant thought of it, at the time that the original application was filed.  I do not think it would have been open to the proposed additional respondent, had that been done, to have moved for something in the nature of a non-suit, or to have had the claim against her struck out. 

The applicant has in fact put on evidence which, if it were in proper form, would go further, and establish a prima facie case.  I do not think it is in proper form, but I do not think that there is the slightest foundation for suggesting that the claim is not a bona fide claim which may, as a matter of possibility, - I put it no higher than that - be found to be good when all the evidence is in at the hearing.

There is not shown any realistic prejudice.  Although the hearing date has been fixed, that is a long way in the future, and I do not think the joinder of the additional respondent can possibly cause any difficulty in that regard.

Accordingly, I will make the order that is sought, but I think the applicant must pay the costs of and incidental to the amendment, and any costs thrown away by reason of the amendment, but not the costs of preparation of the affidavits or of the appearance on behalf of the respondents to oppose the motion today, which I think should be the respondents' costs in the cause.  I make orders accordingly, including orders 1 and 2 of the orders sought.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 17 November 1995

Counsel for the Applicant:       Ms J.R. Baird

Solicitors for the Applicant:        Mallesons Stephen Jaques

Counsel for the Respondents:     Mr P.W. Bates

Solicitors for the Respondents:   Autore & Associates

Date of hearing:                 13 November 1995