Pavlomanolakos, E.R. v National Australia Bank

[1992] FCA 279

JUDGMENT No. 279. /...9-&

IN THE FEDERAL COURT OF AUSTRAJiIA )

\

SOUTH AUSTRALIA DISTRICT REGISTRY j No. SG2 of 1992

1

GENERAL DIVISION 1

On Appeal from a Sinale Judae of the Federal Court of Australia

EVANGELOS ROBERT PAVLOMANOLAKOS

Applicant

NATIONAL AUSTRALIA BANK

First Respondent

MURRAY LONGMUIR

Second Respondent

BRENTON JOHN CLARK

Third Respondent

Ex parte:

LAURENCE FRANCIS HOINS

Applicant for

leave to appeal

MINUTES OF ORDER

JUDGES W I N G ORDER:	Spender, Lee and Heerey JJ
DATE OF ORDER:	12 May 1992
WHERE MADE:	Adelaide
THE COURT ORDERS THAT:
NOTE:	Settlement and entry of orders is dealt with in
0. 36 of the Federal Court Rules.

The application for leave to appeal is refused, with costs.

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SG2 of 1992

1

GENERAL DIVISION )

On Appeal from a Sinale Judae of the Federal Court of Australia

EVANGELOS ROBERT PAVLOMANOW(0S

Applicant

NATIONAL AUSTRALIA BANK

First Respondent

MURRAY LONGMUIR

Second Respondent

BRENTON JOHN CLARK

Third Respondent

Ex parte:

LAURENCE FRANCIS HOINS

Applicant for

leave to appeal

CORAM	: Spender, Lee and Heerey JJ.
m	Adelaide
DATE
-	12 May 1992
EX TEMPORE REASONS FOR JUDGMENT

SPENDER J: This is an application for leave to appeal from a decision by a single judge of this court (O'Loughlin J), who on 9 March 1992 declined to permit the applicant, Mr. Laurence Hoins, to be joined as a party to proceedings SG2 of 1992, brought by a Mr Pavlomanolakos against the National Australia Bank Limited and Others. Leave to appeal is required pursuant to S. 24(1A) of the Federal Court of Australia Act 1976.

In my opinion M r Hoins' application is misconceived.

Order 6 r. 8(1) of the Federal Court Rules provides:

" Where a person who is not a party -

(a)	ought to have been joined as a party; or
(b)	is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding. "

That rule has to be read in the context of, inter alia, 0. 6 r. 7 ( 2 ) which provides:

" The Court may in any proceeding determine the

issues or questions in dispute so far as they
affect the rights and interests of the parties. "

In proceedings SG2 of 1992, Mr. Pavlomanolakos

claims in paragraph 1 of his statement of claim that an

Limited "was created by the First Respondent as a book-entry	alleged debt between himself and the National Australia Bank
credit out of thin air and virtually at no cost to the First Respondent and thus the First Respondent has no right whatever to claim payments in cash currency of the Commonwealth of Australia in return for book-entry credit created out of thin air and totally unbacked by either real wealth or security in the hands of the First Respondent".
Mr Hoins in his affidavit in support of his notice of motion that he be joined as a party says that he is the "McKenzie friend" of Mr Pavlomanolakos in those proceedings, that Mr. Pavlomanolakos is a Greek naturalised Australian citizen who will under stress revert to his native language, which will inevitably lead to confusion and delay at the trial of those proceedings, and that he, Mr. Hoins, is the only individual who is fully conversant with all the details contained in Nr Pavlomanolakos' statement of claim.
He asserts, as he did before the primary judge, that his being joined as a party "is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon", adopting the words of 0. 6 r. 8(l)(b).

In the proceedings before the primary judge,

Mr Hoins said:

" I'm not legally trained. I have no desire to be

a lawyer. But Mr Pavlomanolakos is in no
financial position to have a lawyer.

I am not standing here trying to play Perry Mason or - from watching too much TV. I'm simply not interested. I'm not only not making money, I'm losing money by being here. I'm doing it because he's a friend about to be dispossessed of his property and for no other reason. "

And later he said:

" I'm the only person, really, that is fully conversant with all his details, anyway. I've made myself conversant. I repeat for the record that I take no fee or retainer in any way for any of this.

I s t a n d t o g a i n i n no way from w h a t e v e r happens

w i t h M r Pavlomanol a k o s , good, bad , or i n d i f f e r e n t .

B u t I 'm the only i n d i v i d u a l i n th is c o u r t - i n d e e d ,

the only i n d i v i d u a l i n the world - t h a t i s i n a n y

way compe ten t - l e a v i n g a s i d e the l e g a l s i d e o f

i t - t o d e a l w i t h the m a t t e r s he h a s r a i s e d i n his

own s t a t e m e n t o f c l a i m , which he w r o t e . H e ' s not

compe ten t t o d o i t , y o u r Honour. "

L a t e r , t o the s u g g e s t i o n t h a t there was n o t h i n g r e a l l y i n the

t e s t	o f	a p p r o p r i a t e n e s s	o f	j o i n d e r	wh ich	would	s u p p o r t	the
j o i n d e r	o f Mr	Hoins	a s	a	p a r t y	i n t he p r o c e e d i n g s ,	he	s a i d :

' ..:I d o i n f a c t m e e t the tes t . I h a v e a very

close and e m o t i v e a s s o c i a t i o n w i t h the m a t t e r .

I 'm better i n f o r m e d t h a n anyone i n t h i s cour t room

a s t o the m a t t e r s i n hand. There i sn ' t anyone i n

the c o u r t r o o m w i t h the d e e p e s t respect t o y o u r

Honour,	t h a t	knows	more	a b o u t	t h i s m a t t e r	t h a n
me. ''

And l a t e r , and i m p o r t a n t l y , he s a i d :

" The f a c t t h a t I d o n ' t h o l d a n y f i n a n c i a l

advan tage i n no way s h o u l d be used by D r B a x t e r

i n a n a t t e m p t t o c u t me o u t . The f a c t t h a t I

d o n ' t	h a v e	a n y f i n a n c i a l	advan tage	or	equity	g a i n
s t a n d s	t o	m y	p e r s o n a l	c r e d i t	r a t h e r	t h a n

o t h e r w i s e . "

Mr Hoins f r a n k l y conceded before the c o u r t t o d a y

t h a t he h a s no interest i n a p e c u n i a r y o r p r o p r i e t a r y sense i n

t h i s l i t i g a t i o n , and h i s a p p l i c a t i o n i s m o t i v a t e d b y a desire

t o a s s i s t M r . Pavlomanolakos i n the e x e g e s i s o f the c l a i m he

w i s h e s t o pursue a g a i n s t the N a t i o n a l A u s t r a l i a Bank L i m i t e d .

O f L o u g h l i n J s a i d o f the a p p l i c a t i o n f o r j o i n d e r :

" As I e x p l a i n e d d u r i n g the c o u r s e o f M r Hoins'

s u b m i s s i o n s , a p a r t y may be j o i n e d t o the

proceedings upon the a p p l i c a t i o n o f a n y e x i s t i n g

i s a risk t h a t the outcome o f the l i t i g a t i o n w i l l	o t h e r p a r t y i f it appears t o the c o u r t t h a t there
o r may a f f e c t either the person o r t h e p r o p e r t y
o f the t h i r d p a r t y .
No th ing t h a t h a s been s a i d t o me t o d a y s u g g e s t s
a n y remote p o s s i b i l i t y t h a t the person o f
Mr Hoins o r the p r o p e r t y o f Mt Hoins i s l i k e l y t o
be a f f e c t e d by the outcome o f t h i s l i t i g a t i o n between Mr Pavlomanolakos and the National Bank o f A u s t r a l i a . The a p p l i c a t i o n t h e r e f o r e t h a t
llLr Hoins be jo ined a s a p a r t y t o the proceedings
i s r e f u s e d . "

The question of joinder is a matter of practice and procedure, and as the terms of 0. 6 r. 8 make plain, the court has a discretion in respect of whether a person should be joined as a party.

There seems to me to be a misconception by Mr Hoins concerning the interest referred to in 0. 6 r. 8(l)(b). What is required is an involvement in the substance or the outcome of the litigation, not a concern that the litigation might be conducted more efficiently or in a fairer way.

Mr Hoins has no right or interest which might be affected by the issue or questions in dispute between Mr Pavlomanolakos and the National Australia Bank Limited and the other respondents. In United States Tobacco Company v. The Minister for Consumer Affairs (1988) 82 A.L.R. 509, the Court held that the Australian Federation of Consumer Organisations Incorporated had failed to establish the requirement prescribed by 0. 6 r. 8 as it " s i m p l y d i d n o t have the

requisite involvement in the substance and outcome of the
litigation".

One of the consequences of being joined as a party is that that person may be exposed to an obligation to pay costs in the event that the litigation fails. That consequence underlines the fact that before a person be joined as a party that person should have a financial stake in the outcome of the litigation, or a proprietary or personal interest in the issues to be resolved by the litigation. It is erroneous in the context of joinder to consider questions of quality of representation or: quality of advocacy for one of the parties to the litigation.

For these reasons the application for joinder was

misconceived.

The application for leave to appeal from the decision of O'Loughlin J ought be refused with costs.

W: Yes, I agree. I add the following rider. As the	application has been primarily concerned with the matter of
representation rather than the true issue of joinder, if there is any lingering doubt about the adequacy of the McKenzie guidelines to provide for Mr. Pavlomanolakos to be appropriately assisted in the conduct of his action, it is a matter for Kr Hoins, the recipient of the benefit of the guidelines, to raise with the presiding judge in due course,
and seek some elaboration of the guidelines if he considers it necessary or for Mr Pavlomanolakos to make that application on his behalf to the presiding judge. Other than that, I have nothing further to add.
HEEREY J: I agree.
SPENDER J:  The order of the Court is that the application
for leave to appeal is refused, with costs.

I cert i fy t h a t t h i s and t h e

pre7ding six pages are a	t r u e )copy o f t h e reasons
f o r j dgment here in o f t h e
cou t n
Date: 12 May 1992

The app l i can t appeared i n person.

Counsel for t h e respondents	:	D r . R . J . Baxter w i th
MS L . Kirk

i n s t r u c t e d by Finlaysons

Date o f hearing 12 May 1992