Rini Coolen v Adelaide United Football Club Pty Ltd (ACN 136 768 539) - [2012] SADC 179

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
RINI COOLEN v ADELAIDE UNITED FOOTBALL CLUB PTY LTD (ACN 136 768 539)
[2012] SADC 179
Ruling of His Honour Judge Slattery
12 December 2012
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS - RIGHTS AND LIABILITIES OF PRINCIPAL IN RESPECT OF CONTRACTS OF AGENT - FRAUD AND MISREPRESENTATION
Application for leave to issue an application to join secondary parties to existing proceedings - priority trial date already set - whether Master erred in excercising discretion
Held - errors in fact and discretion made by the Master - appeal allowed - permission to join third parties granted
District Court Civil Rules 2006 Rules 210; Rule 131; rule 74; Misrepresentation Act 1972 (SA) s7(2)(b) ; Competition and Consumer Act 2010 (Cth) Schedule 2, s18; Fair Trading Act 1987 (SA) s54, referred to.
McLean v DID Pty Ltd (2010) SASC 33 ; JN Taylor Holdings Limited (in liq.) and JN Taylor Finance Pty Ltd (in liq.) v Alan Bond and Ors (1993) 59 SASR 432 ; Barclays Bank v Tom [1923] 1 KB 221 ; Consolidated Exploration Limited v Ord Minnett Limited [1993] VSC 181 ; Port Pirie City and District Council v Leenders and Partners Pty Ltd [2001] SASC 208 ; House v The King [1936] 55 CLR 499, applied.
AON Risk Services Australia Limited v Australian National University [2009] 239 CLR 175; Mulvaney (as liquidator of the Hellenic Athletic Soccer Club of SA In.) v The Commissioner of Taxation to the Commonwealth of Australia [2004] SASC 166 ; Imagecolour (SA) Pty Ltd (in liq) v Curtis [2000] SASC 316 ; AMP Fire and General Insurance Company Ltd v Dixon (1982) VR 833 , discussed.
Warren v Coombes (1979) 142 CLR 531 ; Ashmore v Corporation of Lloyds (1992) 1 WLR 466 , considered.

RINI COOLEN v ADELAIDE UNITED FOOTBALL CLUB PTY LTD (ACN 136 768 539)
[2012] SADC 179
A summary of the case

The defendant is a corporation and operates as a club participating in the national competition under the auspices of Football Federation Australia (FFA).
The plaintiff was employed by the defendant as its head coach from June 2010 through 20 December 2011. In the period November 2010 to April 2011 the plaintiff and defendant were negotiating possible extensions to the plaintiff’s employment contract. This was done on the plaintiff’s behalf via Mr John Grimaud (Grimaud) as agent for the plaintiff. In that year extension of an existing contract between the plaintiff and the defendant was executed in April 2011. It expired in 2015.
Grimaud and Greg Griffin (“Griffin”), a solicitor and Director of the defendant, had lunch together on 19 November 2010 in a Melbourne restaurant. Griffin alleges that during that conversation Grimaud said and Griffin believed that the plaintiff had been offered a coaching position in Japan at a salary of $1,000,000 (AUD) per annum. Grimaud denies the content but not the fact of that conversation. This alleged statement is later referred to as the first Japan representation.
In January 2011, while in the course of negotiating the extension contract, Grimaud and PSMA (Grimaud’s agency company both of which together hereinafter called Grimaud) advised Griffin that the plaintiff could earn “more than double” $370,000 (AUD) per year “net in Japan”.[1] This representation will later be referred to as the second Japan representation.
[1] Email from Grimaud to Griffin dated 4 January 2011.
Griffin alleges that while still negotiating the extension contract, Grimaud again made representations to him via a further email from Grimaud to Griffin on 11 January 2011 where Grimaud advised Griffin that “$370,000 (AUD) per annum was well short of what he (the plaintiff) could earn elsewhere”. This would later be referred to as the third Japan representation. It was also during this time that the plaintiff orally advised the defendant that he could not resist the Japan coaching offer unless the defendant increased the plaintiff’s base salary to $500,000 per year, plus all his Australian expenses settled for both he and his family, and to extend his contract of employment to a further 4 year term.
It is also alleged by the plaintiff that the defendant, while negotiating the extension contract, made an unlawful misrepresentation by Griffin to Grimaud in breach of the Competition and Consumer Act 2010 (Cth) and s7 of the Misrepresentation Act 1927 (SA) whereby Griffin allegedly advised that “we are here for the long term and want Rini with us” and that “our word is our bond. We are not people who lose 6 games and then try to execute the Coach”. The plaintiff asserts that he relied on these remarks when deciding to renew his contract position with the defendant, rather than pursuing a higher paying position in Japan. The defendant denies these matters.
The defendant’s case is that relying on the representations made by Grimaud to Griffin regarding the Japanese opportunities (that the defendant now claims are false), the defendant extended the plaintiff’s written contract for employment for a further four years.
In December 2011, the plaintiff was informed that he lacked the support of the Board of the defendant and that the defendant wished him to resign as head coach. Ultimately the defendant resolved that the plaintiff be permitted to remain only as coach of the Club’s Youth Team until the end of his term as a coach with the defendant. The plaintiff refused the defendant’s offer, treated the offer and notification as repudiatory conduct and terminated the contract. The plaintiff now sues for breach of contract and other remedies. His damages claim is in the order of some $2 million dollars. The defendant contests the entitlements to termination, any liability allegedly arising therefrom and the quantum of any damages claim by the plaintiff.
The defendant further alleges that the Curriculum Vitae provided by the plaintiff to the defendant contained a summary of the plaintiff’s coaching career but that the representations were false and/or misleading and the defendant had relied on these representations when coming to its decision to employ the plaintiff as head Coach.
The defendant seeks the Court’s declaration that the extension contract be set aside or is void.
The Coolen application to Football Federation Australia
During December 2011 and early 2012 and subsequent to being given notice that he was no longer to coach the senior team at the defendant and was to be the Youth Development Coach (which demotion the plaintiff refused to accept and treated as repudiatory conduct justifying him terminating the contract) the plaintiff made an application to Football Federation Australia (FFA) for review of that decision. An appeal in respect of that application alleging lack of jurisdiction in the relevant function of FFA was commenced by the defendant.
The Appeals Tribunal heard and determined an application by the defendant that there was no jurisdiction in the FFA reviews process and the FFA should not proceed to hear the application. The defendant was successful in its application.
Following the decision of the Appeals Tribunal of the FFA, the plaintiff commenced these proceedings on 16 May 2012. In total, some 5 or so months of time was spent by the defendant in and about the FFA Review and Appeals process.
The proceedings
The plaintiff commenced these proceedings by Summons and Statement of Claim dated 16 May 2012.
The defendant filed its Defence on 13 June 2012. Subsequent to the filing of that Defence, the plaintiff filed his reply and Defence to Counter Claim.
On the 16^th day of May 2012, the plaintiff brought an application for Orders that there be urgent trial in the action. The application was supported by an Affidavit of the plaintiff which disclosed that the plaintiff remained in Australia on a visitor’s Visa and that this Visa expired at the end of January 2013. The plaintiff sought the hearing of the evidence in this action by no later than 30 January 2013.
The application was contested. It was heard before Master Rice on 16 August 2012. The Master acceded to the application of the plaintiff and ordered that there be an urgent trial in this action.
At the time that the Master ordered that there be an urgent trial of the action, the pleading between the plaintiff and the defendant had not been finalised despite the fact that on 25 June 2012 the plaintiff had filed his reply and defence to Cross Claim. At the time of the Order for urgent trial, in paragraph 23 of the defendant’s Defence and Cross Action, the defendant pleads that in early January 2011, in the course of negotiation between Griffin of the defendant and Grimaud as agent for the plaintiff, about a possible three year extension to the plaintiff’s contract (it having a further year to run at that stage), Grimaud informed Griffin in words to the effect that the plaintiff had been offered a coaching position in Japan which would result in him being paid about $1 million dollars per year.[2]
[2] At the time Grimaud had a business partner who operated in Japan: Mr Yasuchi Imatoki. He was agent for a number of football coaches in Japan and part of his role was to identify possible coaching positions for prospective coaches; he is to be called to give expert evidence on behalf of the plaintiff.
This pleading (in a shorter version) is made at the outset of the defendant’s responses to the plaintiff’s claim. As will become clear the date of the alleged representation was said to have occurred in the meeting in Melbourne in January 2011. It transpires that later it was identified that the relevant conversation between Grimaud and Griffin occurred at the ‘Cumulus’ restaurant in Melbourne in November 2010.
Griffin’s personal position has always been that the statements made to him by Grimaud at the Cumulus restaurant were actionable because these statements were an operating misrepresentation on the mind of the defendant which relied on them to agree to enter the extension contract.
Potential claims against “Grimaud”
Despite the fact that the statements were made by Grimaud as agent, they have potentially always been separately actionable at the risk of the defendant against Grimaud on the basis of them being misleading conduct in the course of trade and commerce. As I am informed there is some doubt, (at least in the minds of the defendant’s advisors), that any such misleading conduct occurred in the course of trade and commerce.
It does not appear to be in contest that Griffin continuously raised these matters with solicitors and counsel and made it clear that, from his point of view, it was appropriate and necessary to join Grimaud as a secondary party.
The view of Griffin did not then prevail.
The following facts are taken from the Chronology prepared by the defendant for this proceeding. Though not completely supported by affidavits they appear to have become accepted facts before the Master and their restatement here can cause no prejudice to any party. They are:-
“1.4 On 3 July 2012 Mr Griffin, a Director and the Chairman of the Defendant, raised with the solicitor who has the care and conduct of the file on behalf of the Defendant, Mr Andrew Clare, the question of joining the proposed third parties to the proceedings on the basis of the Plaintiff’s denial of the representation made by Mr Grimaud as contained in the Plaintiff’s Reply and Defence to Cross-Action dated 25 June 2012;[3]
[3] Exhibit “ASC14” to the Sixth Affidavit of Andrew Stephen Clare dated 19 November 2012 at page 9.
1.5 On 3 July 2012 Mr Clare emailed Counsel retained on behalf of the Defendant, Mr Sam Doyle, referring to the fact that the Defendant had raised the question of joining the proposed third parties and sought the advice of Mr Doyle;[4]
[4] Ibid.
1.6 On 4 July 2012 Mr Doyle telephoned Mr Clare and gave advice to the effect that it is “not helpful to join Mr Grimaud. Stuck with what he says”;[5]
[5] Ibid at page 10, and see Affidavit of Samuel John Doyle dated 23 November 2012.
1.7 On 19 July 2012 Mr Clare telephoned Mr Doyle and sought advice with respect to the potential joinder of Mr Grimaud. Mr Doyle advised to the effect that “Rini will be stuck with conduct of agent. No grounds to join.”[6]
[6] Ibid at page 11, and see Affidavit of Samuel John Doyle dated 23 November 2012.
I will not set out the whole of the supporting correspondence on affidavits but only the effect of the exchanges that occurred within Griffin’s firm acting as solicitors for the defendant and Counsel Mr Sam Doyle.
Mr Doyle prepared an affidavit setting out the factual matters as he recalled them as counsel. At the hearing before the Master, objection was taken to the tender of the Affidavit of Mr Doyle. In my view, that objection was incorrect. I refer in particular to paragraph [106] of the judgment of the plurality in AON Risk Services Australia Limited v ANU [2009] 239 CLR 175 at page 216.
The failure of the Master to receive the Affidavit of Mr Doyle has no pertinent effect because the substance, effect and the consequences of the views maintained by Griffin leading to the exchanges between Mr Doyle and the solicitors, particularly Mr Clare are sufficiently common between the parties that they do not need further investigation here.
The important issue is that for his part, Griffin wanted the defendant to issue third party proceedings against Grimaud and Grimaud’s agency company PSMA in relation to the representations that he made, whereas Counsel’s advice was that having regard to the fact that Grimaud was the plaintiff’s agent, there would be no issue about the plaintiff being “saddled” with the misrepresentations made by Grimaud on behalf of his principal. There would, in accordance with well settled principles in the law of principal and agent, be no utility in joining the agent Grimaud. That is because usually in the absence of any challenges to authority, there is no separate cause of action against the agent and the principal in the one proceeding. This rule does not affect the law of misleading conduct save and except where the agent is no more than an innocent conduit of information between the principal and the affected third party.
In particular, Mr Doyle advised that it would almost be inevitable that the plaintiff would be held responsible for the conduct of Grimaud including any misrepresentations of Grimaud.
The important feature is that Griffin had almost from the outset identified the possible need to join Grimaud in the proceedings as a third party. Although Counsel’s advice may not have assuaged his concerns, those matters were identified and addressed in advice.
The Principal and Agent relationship
In the circumstances of the relationship of principal and agent that advice was correct. There was no suggestion of any “fracture” in the relationship between Grimaud and the plaintiff, as agent and principal. This is an entirely different matter when considering the question of misleading conduct in the course of trade and commerce. This is complicated by the involvement (potentially) of Grimaud’s business partner in Japan and there was nothing pleaded by the plaintiff to suggest that Grimaud was anything more than an innocent conduit between the plaintiff and the defendant.
Having regard to the then state of the pleadings, the issue was joined between the plaintiff and the defendant as to whether Grimaud in fact made the representations. At that time, that is as at the time of the filing of the defendant’s Defence and Cross Claim of 13 June 2012, there was a claim in relation to the incorrectness of the representation, the reliance by the defendant upon the representation and an entitlement in the defendant to have the contract with the plaintiff set aside or declared void on and from the date of entering into the contract either at law or under the Misrepresentation Act, The Fair Trading Act or under the Competition and Consumer Act.[7] It is apparent from the matters that I have set out above, that there was a presumption on the part of Griffin of authority in Grimaud to make the representations. There was nothing in the plaintiff’s pleadings to gainsay that proposition. The position reached was that the plaintiff alleged that Griffin was wrong in his version and that no actionable representation was made.
[7] See defendant’s pleadings at paragraphs [4], [24], [25], [26], [26], [27], [28], [29] and the prayer for relief.
Of course this does not necessarily mean that there would never be a disassociation between the interests of Grimaud and the plaintiff but the Court was dealing with the matters then before it, as was Griffin and the defendant.
By joinder of issue, the plaintiff put the defendant to proof both in relation to the factual circumstances of the alleged representation, the legal effect, if any, of the representation, the remedies (if any) if such representation was made out and the consequences.
The plaintiff was on notice that the defendant always made a case concerning statements made to Griffin by Grimaud on behalf of the plaintiff and upon which the defendant relied allegedly to its detriment. All of this should have been quite apparent to the plaintiff from no later than the time that the defendant filed its first Defence and Cross Claim.
The amendment of the defendant’s pleadings
The defendant filed a Second Defence and Cross Action on 9 November 2012. In that pleading, at paragraph 31 et seq the defendant pleaded further particularity in relation to the alleged oral representation made by Grimaud to Griffin which had been contained in paragraph 23 of the Defence and Cross Claim of 13 June 2012.
In particular, there was a further pleading that Grimaud informed Griffin that the plaintiff had an offer of coaching in Japan for $1,000,000 per season and that unless the defendant could do better in its offer to the plaintiff in respect of its coaching position, the plaintiff could not resist the Japanese Club’s offer. This was called the “first Japan representation” and it was alleged to have been made at a lunch on 19 November 2010 in Melbourne. This is some two months earlier than the plea concerning the same matter in the original Statement of Claim.
There was also a pleading of a further matter in January 2011 called the “second Japan representation” and that is pleaded in paragraph 32 and 33 of the Second Defence and Counter Claim.[8] There was also an allegation of a “third Japan representation” both of which were contained in emails.
[8] In my view the Master has not in his judgment at paragraph 30 properly set out the content of this pleading. The error by the Master is important and I will deal with that matter later.
There was a plea at paragraph 37 of that pleading of an advantage received by Grimaud and his company as a result of the formation of the contract between the plaintiff and the defendant in reliance upon the representation. There were then pleadings about misleading conduct, in paragraph 38 the falseness of the conduct, and ancillary pleadings in paragraphs 39, 40 and 41.
In paragraph 42, the defendant pleaded that the conduct of the plaintiff’s agent was an actionable misrepresentation under s7 of the Misrepresentation Act or was misleading conduct with the further pleading of consequential loss resulting from the reliance upon the misleading conduct, misrepresentation communicated by the plaintiff’s agents.
Some further background matters
Before proceeding further, it is necessary to set out the background to these pleadings. These matters are important because they lay the groundwork for the beliefs that were operating on the minds of the defendant at the relevant time having regard to the then state of the pleadings.

On 22 August and after receiving advice from Counsel, the defendant or its solicitors wrote a letter to the plaintiff’s solicitors Minter Ellison seeking confirmation of the authority of the agent Grimaud at the time that the defendant’s original Defence and Cross Claim was extant. The relevant issue in the principal/agent area was whether the plaintiff would seek to disclaim the actions/misrepresentations of Grimaud on an authority/ostensible authority basis.
If the plaintiff as principal did not disassociate himself from the statements of Grimaud (the first Japan representation case made from the outset) then the defendant would be in a position to visit upon the plaintiff any conduct of Grimaud that amounted to misleading conduct/a misrepresentation and in breach of the Misrepresentation Act 1972 (so it is alleged) and claim remedies from the plaintiff.
The letter of the defendant’s solicitors to the plaintiff’s solicitors was in the following terms:-
“We assume that if the Court accepts that the statement was made, your client accepts that he is responsible for this statement by his agent… please confirm that our assumption is correct. Otherwise our client will be forced to join Mr Grimaud as an additional defendant.”
On 30 August 2012 the plaintiff’s lawyers, Minter Ellison, wrote to the defendant’s lawyers in response to the 24 August 2012 letter and stated:-
“We confirm our client’s position that Mr Grimaud had authority to make representations on our client’s behalf in the course of negotiations held in late 2010 and early 2011 for our client’s new employment contract.”
It would be difficult to conceive of a circumstance where the plaintiff’s solicitors did not understand or comprehend what they were being asked or of its importance. As well, the plaintiff had pleaded his own misrepresentation case against the defendant from the commencement of the action. The first Japan representation made by Grimaud was pleaded on the original Defence and Cross Claim of the defendant but in an abbreviated form and on the wrong date. Despite that, it was a matter that the plaintiff needed to confront and on which the defendant relied.
It is in that context that the chronology that developed must be viewed.
The Order for a priority trial date and then later amended pleadings
On 10 September 2012 Master Rice ordered that the trial take place on 14 January 2013. It follows that the second Defence and Cross Action was filed some two months after the order was made by the Master that the trial take place on 14 January 2013.
The amendments constituting the second Defence and Cross Action of the defendant of that date are substantial. I confirmed in the hearing before me on the Appeal that the plaintiff did not object to the amendment constituting the second Defence and Cross Claim.
Prior to the filing of the amended Second Defence and Cross Claim, on 6 November 2012 the defendant filed an Interlocutory Application seeking leave to join the proposed third parties. After that time, on 14 November 2012, the plaintiff filed his amended Second Reply and Second Defence to Cross Action and by paragraph 22 thereof denied that he was responsible for any representation made by Mr Grimaud and pleaded the defence under s7(2)(b) of the Misrepresentation Act 1972 (SA). This plea is significant both in respect of the Misrepresentation Act and the question of alleged misleading conduct.
During the management of the action to trial, the Master made pre-trial orders for the filing of witness statements by the plaintiff and the plaintiff’s witnesses both in relation to the Claim and the Cross Action. The Master also made orders for non-party disclosure against Grimaud. In accordance with the Master’s orders, the plaintiff filed an Affidavit of John Grimaud sworn 7 November 2012. I was told in argument that this Affidavit was prepared by the solicitors for the plaintiff.
Grimaud’s affidavit is sworn contemporaneous with the filing of the second Defence and Counter Claim and a day later than the filing of the proposed third party claim; the defendant filed its Interlocutory Application seeking leave to join Grimaud on 6 November 2012.
It would follow that having regard to the state of the pleadings as at 7 November 2012 (and in order to have filed the second Defence and Cross Action on 9 November 2012 without opposition, it may be assumed that the content of that document had been disclosed to the plaintiff for its consideration well before that time in accordance with the usual interlocutory processes) the content of the affidavit of Grimaud would be understood to exhaust Mr Grimaud’s memory and disclose the whole of his evidence in relation to the pertinent matters pleaded by the defendant.
However, Grimaud only addressed paragraph 23 of the first Defence and Cross Action and says that the content is wrong. He says as follows:-
“21… I did not then (12 or 13 January 2011) or at any other time tell Griffin that the plaintiff had received an offer from a football club in Japan or that any such offer was for $1,000,000 per year in January 2011.”
The same but more particular version of the facts as suggested by Griffin is plainly set out in paragraph 31 of the second Defence and Cross Action of the defendant. Even so it may be assumed that Grimaud’s evidence in that respect will not change: the denial would not be expected to be any less strident to a more fulsome plea.
The relevant issues of credit of witnesses
The need immediately arises to resolve the credit issue in these proceedings between the version of Griffin as set out in full detail in the pleadings and the version put forward by Grimaud in his Affidavits and as reflected in the plaintiff’s pleadings.
A further consideration for this Court is the possible effect upon the action if the Griffin version is preferred in the within action. In the event that it is necessary to separately litigate the matter, it follows that the same issue will be litigated again in any action by the defendant against Grimaud raising the distinct possibility of inconsistent findings. If Griffin’s version is preferred by the trial Judge and a remedy is granted in favour of the defendant against the plaintiff, it is also predictable that the plaintiff herein would seek some remedy against Grimaud.
There are also then a number of other necessary considerations that arise in these factual circumstances. If, for example, a third party proceeding were to be issued, a question arises as to the extent, if any, Grimaud would wish to participate in the action between the plaintiff and the defendant. Grimaud may wish to participate in that action and that may also include putting a case about any damages suffered by the plaintiff. If that is so, that would become another matter that could be the subject of inconsistent findings in separate proceedings. That matter was not canvassed before the Master.
The Rules
The relevant considerations in relation to the issue of what is now called a “secondary action” is determined under Rule 74 of the District Court Civil Rules. That Rule reads as follows:-
“74—Joinder and disjoinder of parties
(1)     The Court may, on application or on its own initiative, order that a person who is not a party to the action be joined as a party if satisfied that—
(a)     The person has an interest in the subject matter of the action or in a question of law or fact involved in the action; or
(b)     The Court may require the person's cooperation in order to enforce a judgment; or
(c)     The person has a right to joinder as a party under an Act or rule; or
(d)The person should be joined as a party to ensure that all matters in dispute in the action are determined; or
(e)     The person should be joined as a party in order to enable determination of a related dispute and thus avoid multiplicity of proceedings.
(2)     …
(3)     Before the Court makes an order for the joinder or disjoinder of a party, the Court must ensure that all parties to the action and, if appropriate, the person who may be joined as a party, have had notice of the application or proposal for joinder or disjoinder and an opportunity to be heard on the question.
(4)     The Court may make an order for the joinder or disjoinder of a party on conditions the Court considers appropriate.”
Rule 210 is applicable and pertinently reads as follows:-
“210—Trial of action
(1)     Unless the Court otherwise directs, all issues involved in both primary and secondary actions are to be tried together.
(2)     A party to a secondary action is entitled to introduce, to the extent permitted by the trial judge, evidence relevant to the primary action and, if the party's interest may be affected by the outcome of another secondary action, that other secondary action.
(3)     A party to a secondary action is entitled to cross-examine, to the extent permitted by the trial judge, the witnesses of—
(a)     A party to the primary action; or
(b)If the party's interest may be affected by the outcome of another secondary action—a party to that secondary action.
(4)     Each party is bound by the Court's judgment so far as it determines issues affecting the interest of the party even though the party's participation in the action arose from a secondary action in which those issues were not raised.”
The complicating feature here is that at the time the application was taken to issue the third party claim (6 November 2012) the Court had made Orders for the matter to be heard as an urgent trial (16 August 2012) and for the date of hearing to be set as 14 January 2013 (10 September 2012).
The Interlocutory Application taken by the defendant to issue a secondary action therefore was issued after the matter was set for trial.
Rule 131 therefore operates. It relevantly reads as follows:-
“131—Interlocutory applications
(5) When the Court has made an order under rule 120(5) that an action proceed to trial, an interlocutory application may only be made with the Court’s permission.
(6) However, if the application should have been made before the action was referred for trial, the Court will only permit the application if satisfied that special circumstances justify the grant of permission.”
In order to obtain permission to issue the application, it was necessary to disclose special circumstances.
In the hearing of the application by the defendant for the issue of third party proceedings, the questions before the Master were as follow:-
“8. The first one is whether special circumstances exist that will enable to Court to allow this application to be made. Rule 131(6) provides that if the application should have been made before the action was referred for trial, the Court will only permit it if satisfied that special circumstances justify the grant of permission.
9.
10. The second issue is even if special circumstances do exist, whether leave should be granted to allow the joinder of the proposed third parties at this stage of the action with a trial listed for 14 January 2013. There is a related question and that is, even if leave to join the third parties is granted, whether there should be either an adjournment of the trial or a separation of issues (to exclude the involvement of any third parties (to be determined at the 14 January 2013 trial.))”
The Master’s decision
Having heard argument (in parts) over three days, the Master came to the following conclusion in his reason that were delivered on Friday 23 November 2012 that were emailed to the parties on Wednesday 28 November 2012:-
“ [68] The central issue for consideration is quite narrow. There is no reason why this matter could not have gone to trial on any basis in January 2013. I re-state the position. I am confronted with a priority trial date and an application which will bring about an adjournment of that trial if the third parties are involved.
[69] The defendant’s rights are not lost even if the plaintiff is successful. They have avenues to seek a stay of payment of the whole or part of the judgment, on terms, whilst they pursue separate proceedings.
[70] Ultimately, I have a discretion. I have not found the matter easy. I have to weigh up all these competing factors. I take into account the potential prejudice to the defendant. I take into account the real prejudice to the plaintiff and a real prejudice to the third parties if the third party proceedings are issued and they were forced to proceed to a trial in two months time.
[71] I take into account the consequence of allowing the third party proceedings to be issued, but separate out the third parties from those proceedings knowing that that does not finally assist the defendant and that there will still be a separate trial of these other issues.
[72] There is no doubt that if Mr Griffin’s original advice had been acted upon and, disregarding the narrow pleading points that I have discussed, it would be unsurprising for the joinder of Mr Grimaud to have taken place if he made alleged misrepresentations. It may even help bring about a settlement of the action. There is no doubt that if third party proceedings had been issued on time, then these finer points may have emerged earlier and the trial could still proceed.
[73] Taking all those matters into account, in the exercise of my discretion, I am of the view that in this instance the trial should proceed. As a consequence, in my view, special circumstances have not been made out.
[74] If I am wrong and the Court were to find that there are special circumstances, I would not allow the issue of the third party proceedings and require those third parties to proceed to trial on 14 January 2013.
[75] If I am wrong on that point, and it was proper to issue third party proceedings, I would not require the third parties to be involved in the trial, because, in my view, the priority hearing date should be met and the trial proceed. I think, in my view, that that process has the greatest chance of bringing about a resolution of the whole of the dispute.
The Master gave Orders for an abridged time period for the bringing of any Appeal against his Orders.
The defendant appeals against the Master’s decisions. The appeal grounds of the defendant are very extensive but in argument boiled down to two main propositions critical of the Master’s decision as follows:-
“[5] First, the Master treated the application, in substance, not as one of joinder simpliciter, but as a de facto application for an adjournment of the trial of the plaintiff’s action when it was not such thing (R[10], [41], [51], [62], [65], and [68]). Secondly, the Master, in identifying the options and orders available to him, failed to have regard to the obvious and conventional procedure in the instant kind of case, namely joinder and deferral of the trial of the third party action (R[10], [43]-[48]).”[9]
[9] Paragraph 5 of the defendant’s written submissions.
The approach to the determination of this appeal
The correct approach in the determination of this matter is as set out in the decision of her Honour Justice Layton in McLean v DID Pty Ltd (2010) SASC 33:
[21] This reasoning has not received acceptance in other decisions of the District Court.[10] Indeed, the reasoning appears to be inconsistent with the treatment of Rule 97 of the former Supreme Court Rules 1987 (SA) (the “1987 Rules”) by Mulligan J in George v Dowling.[11] Similarly, it seems to be inconsistent with the approach taken by Wicks J in Mac Audio & Acoustical Consultants Pty Ltd (in liq) v Eddy,[12] when his Honour said of the 1987 Rules (at [6]):
[10] See eg Jewel River Pty Ltd v Captured Pty Ltd [2009] SADC 2, [25]-[32]; ADX Building Systems Pty v Adelaide Fibrous Plasterboard Linings Pty Ltd (In Liq) [2009] SADC 7, [47].
[11] (1992) 57 SASR 579, 582.
[12] [1999] SASC 443.
This appeal is by way of re-hearing and not by way of re-hearing de novo: SCR 97.17. An appellate court is required to make an independent assessment of the material that was before the learned Magistrate and may draw any inferences from the facts which may be appropriate: Warren v Coombes (1979) 142 CLR 531. An appellate court, hearing an appeal is not, however, entitled to substitute its own discretion for that of the Magistrate in the court below unless an error in the exercise of discretion can be detected: Mullett v Gabriel (1989) 52 SASR 330 at p333. For this purpose there will be such an error where matters which should have been taken into account were not taken into account or where matters which should not have been taken into account were taken into account.
[22] In addition, several recent decisions of the Full Court of this court have required a court to find error before exercising the discretion afresh.[13] Accordingly, counsel’s submission should not be accepted. Instead it is appropriate to follow the well known rules in House v The King,[14] which case sets out the circumstances in which an appellate court would disturb an exercise of discretion. In that case the High Court[15] said (at 504-5):
[13] Manos v Maros (2007) 249 LSJS 67, 77 [50]; FMV Stanke Holdings Pty Ltd v O’Meara (2007) 252 LSJS 87, 111 [141]; Oxer v Astec Paints Australia Pty Ltd [2008] SASC 210, [33]; Beverage Bottlers (SA) Ltd (In Liq) v Abode Enterprises Pty Ltd [2009] SASC 272, [114].
[14] (1936) 55 CLR 499.
[15] Dixon, Evatt and McTiernan JJ.
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[23] Accordingly, it is necessary that the appellant identify an error by the Master of the kind described in House v The King before any appeal should be allowed.
The test of whether there are or are not special circumstances can in my view be dealt with together with the relevant considerations of the grounds of the appeal. That in reality is the way the Master proceeded in the application for leave before him. In short, if I am satisfied that the Master was in error and also that I would in the exercise of my discretion set aside the Master’s Orders and make a different Order, then in my view, special circumstances have been made out.
The defendant’s submissions on Appeal
The submission of the defendant was that the errors of the Master identified by the appellant are that the Master was of the view that if the application was successful the trial was to be adjourned. The defendant submitted that no such submission was put and that reference is particularly made to pages 17-21 of the transcript of argument before the Master.
I reviewed those pages of the transcript. I am satisfied that the approach enunciated by Mr John Whitington of Counsel in that hearing was that, relying upon the authorities such as Mulvaney (as liquidator of the Hellenic Athletic Soccer Club of SA In.) v The Commissioner of Taxation to the Commonwealth of Australia [2004] SASC 166 (“Mulvaney”) and like decisions, it was not necessary for there to be an adjournment of the trial of the matter but that the question of the disposition of the secondary party action and the primary action were matters for directions to be given by the trial Judge. I refer in particular to the submissions made by Mr J Whitington at T21 lines 23-28 concerning that case. Reference was also made at T18 lines 20-27 to the inclusion within the new Rule 74 (set out above) of the requirement for the Court to take into account the need to avoid multiplicity of proceedings consistent with the decision of King CJ and the Full Court in JN Taylor Holdings Limited (in liq.) and JN Taylor Finance Pty Ltd (in liq.) v Alan Bond and Ors (1993) 59 SASR 432 and in particular at pp. 440-442 inclusive.

I agree with the submissions of Mr Whitington QC of counsel on appeal that the primary position put by the appellant in this matter was that the trial should proceed without adjournment and that, it was a matter for the trial Judge ultimately as to how the principal action and the secondary party action would be disposed of in the hearing of the actions.
The second error alleged is the failure by the Master to comprehend and apply the well set out principles annunciated in Barclays Bank v Tom [1923] 1 KB 221 in the judgment of Lord Justice Scrutton that conventional practice is that the plaintiff’s claim is disposed of and then later, if necessary there is a trial of the secondary action.
The relevant passages from the observations of Lord Justice Scrutton in Barclays Bank v Tom are at pages 223-224 as follows:
“The reasons for third party proceedings are well known. For present purposes it is sufficient to refer to Barclays Bank v Tom [1923] 1 KB 221 and the observations of Scrutton LJ at 223 – 224 as follows:
“I think it is important to keep clearly in mind what the third party procedure is. A plaintiff has a claim against a defendant. The defendant thinks if he is liable he has a claim over against a third party. With that matter between the defendant and the third party the plaintiff has obviously nothing to do. He is not concerned with the question whether the defendant has a remedy against somebody else. His remedy is against the defendant. But the defendant is much interested in getting the third party bound by the result of the trial between the plaintiff and himself, for otherwise he might be at a great disadvantage if, having fought the case against the plaintiff and lost, he had then to fight the case against the third party possibly on different materials, with the risk that a different result might be arrived at. The object of the third party procedure is then in the first place to get the third party bound by the decision between the plaintiff and the defendant. In the next place it is directed to getting the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff and the defendant, so that the defendant may not be in the position of having to wait a considerable time before he establishes his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And thirdly, it is directed to saving the extra expense which would be involved by two independent actions. With these objects in view the third party order usually provides that the third party may appear at the trial between the plaintiff and the defendant.”
The overarching feature, on the argument, remains the interest of justice; primarily in this instance that the third party is an intrinsic player in the primary proceedings and the separation out of any claim between the defendant and Grimaud into a separate proceeding would be to embrace rather than avoid a multiplicity of proceedings.
The importance of the resolution of the issue of credit arising between Grimaud and Griffin
The resolution of that matter (whichever way it falls) has a number of possible consequences. If Griffin is believed and the Court determines that there has been misleading conduct, then the question for the Court is the remedy, if any, that it may grant consequent upon that finding. Rescission is claimed by the defendant but in the exercise of the Court’s discretion having regard to the date of the complaint and the action taken in respect of its conduct and the bars to rescission, damages may be the only remedy for the defendant if it is successful in its Misrepresentation Act defence.[16]
[16] The same result would likely be obtained in respect of the misleading conduct allegation.
The plaintiff, upon advisement, now pleads s7(2)(b) of the Misrepresentation Act namely that the actual/ostensible authority of Grimaud did not extend to the making of any of the representations and the burden of them all fall upon Grimaud (my emphasis). In my view this is an important plea, because it disassociates the plaintiff from any representations made by Grimaud (which includes the first, second and third Japan representations (my emphasis)).[17]
[17] The emphasis upon the breadth of the pleading is because it affects both the misrepresentation case and the misleading conduct/innocent conduct case.
Conversely, if Griffin fails, the only issue extant in the action against Grimaud relates to the second and third Japan representations. It will be a matter for the defendant if, on the pertinent facts, it is prepared to pursue any lis allegedly arising out of them that is actionable at the suit of the defendant.
The position is that after the time that the matter has been set for an urgent hearing (16 August 2012) and has received a priority date for hearing (given on 10 September 2012) an issue that the defendant has pleaded in its defence from the commencement has developed into an issue that significantly elevates the importance of Griffin in the proceedings vis a vis his negotiations with Grimaud.
Concomitantly there is also an elevation of the importance of the resolution of the contest of credit between Griffin and Grimaud and the sequelae thereof. Both of those matters are compounded by the amended Reply and Defence to Cross Claim filed by the plaintiff who now disclaims the authority of Grimaud to have made any of the subject representations (if they were made). The further question arises of the content of that disclaimer but I do not need to develop that here. The important issue is the fact of that disassociation.
None of the parties seriously contested that the issues that are central to the proposed secondary proceedings by the defendant against Grimaud are not also central to the matters that require resolution as substantive issues in the primary action.
It follows that the development of these issues into more substantive matters has occurred largely since 10 September 2012, the date that the action was given a priority listing hearing date of 14 January 2012. These developments occurred through amended pleadings in November 2012 that I have outlined earlier in these reasons.
In conformity with orders of the Court, non-party disclosure has been made by Grimaud and a lengthy Affidavit of evidence has been filed by him that addresses the issues. Considerable ground has therefore been covered on behalf of Grimaud. The evidence Affidavit was prepared by the plaintiff’s solicitors but because of the history of the pleadings, the Griffin credit issue may be presumed to have been at or near the forefront of the mind of the plaintiff’s advisers when preparing that material. It is addressed in the affidavit. The treatment of this matter is not perfunctory: it is in a short compass and Grimaud avers that the matter did not occur as deposed to by Griffin.
Even though Griffin has not filed Affidavits, his version of events are as stated in the pleadings and some of those important matters have now been addressed in the Affidavit of Grimaud. The clear lines of demarcation between the competing versions are drawn.
In my view the essential features are as I have set out above and compound a number of issues that I am called upon to address. The timing of the elevation of the issues and the complicating effect of the plaintiff’s most recent Reply and Defence to Counter Claim mean that much of what is central to the defendant’s proposed third party Statement of Claim are matters that must be ventilated in evidence and decided upon in the primary action. As well, Grimaud would, if joined, make a cross claim against the defendant for payment of his as yet unpaid commissions that are payable by the defendant under the terms of its contract with the plaintiff.
The same considerations apply in relation to the question of damages. The plaintiff’s case appears to be that of a constructive dismissal from the coaching position and a termination (based upon the plaintiff’s acceptance of the defendant’s repudiatory conduct). The plaintiff’s case is that there has been no further offers to him and he has been unable to find suitable employment in Australia during the time that the extensions of the contract would otherwise have operated. Essential to that case is the evidence to be led by the plaintiff from Grimaud about efforts made to procure alternative employment that have proved fruitless.
The factual peculiarity of this case
In my view, this case is peculiar factually in ways that set it apart. The proposed third party is no stranger to the proceedings; Grimaud’s evidence is essential to the plaintiff’s primary liability claim as well as to his damages claim; Grimaud makes or will make a claim against the defendant for unpaid commission fees; the conversations that are central to the defendant’s rescission/damages claim occurred between Griffin and Grimaud; the resolution of the issues of credit as between Griffin and Grimaud are now essential to the defendant’s rescission/damages case as against the plaintiff and the claim by the defendant against Grimaud consequent upon a Court making a finding of liability in favour of the plaintiff against the defendant; and the position of Grimaud vis a vis both the plaintiff and the defendant arising out of the plaintiff’s s7(2)(b) Misrepresentation Act pleading.
It is correct to say that in the exercise of an unfettered discretion in the administration of justice, Courts are loath to allow an action duly administered and heading to trial to be delayed by a late application for the issue of a third party proceeding that may jeopardize the prospect of the plaintiff’s claim being heard and determined.
The correctness of that proposition needs no explanation. That said, and recalling the Court’s unfettered discretion, cases will arise where this fundamental tenet of the administration of justice may need to bow to peculiar circumstances of the matter before the Court.
The question for consideration here is whether, in light of those matters, any relevant error is identified as having been made by the Master.
In that respect, the plaintiff and Grimaud were ad idem in their submissions. Grimaud’s essential submissions revolved around the absence of any identifiable error by the Master and alternatively, the extreme prejudice that would be suffered by the proposed secondary party, at this late stage, if it is joined to the proceedings. Particular reliance was placed upon the affidavit of Adam Rosser of 20 November 2012.
There are a number of important matters concerning this affidavit. I was informed that before the Master, some comment was made about there being no cross examination of Mr Rosser on his affidavit. I was reminded several times by Mr Cudmore of Counsel for Grimaud that this affidavit was prepared four days after Mr Rosser’s firm received instructions from Grimaud. After identifying a chronology of the involvement of Messrs Cussoff Cudmore Knox in the within proceedings, Mr Rosser informed the Court (paragraph 19) of the affidavit prepared for Grimaud, the fact that the Defence and Cross Action make allegations of fact relevant to Grimaud which are not present in the original Defence and Cross Action; of Grimaud’s potential involvement and the question of quantification of damages; of the defences available to Grimaud and whether a further affidavit of Grimaud would be required in evidence.
Mr Rosser informs the Court of what he perceives may be required to be done in order to complete all work necessary for the proper representation of Mr Grimaud (paragraph 27 and 28) and also, that Mr Rosser is not yet in a position to give final advice. For reasons which are not clear, Mr Rosser suggests that absent full cooperation there would need to be an application to compel disclosure (paragraph 30). Orders for disclosure have already been made in the proceedings, there has been no application for further and better disclosure and Grimaud has been required to make and have made non-party disclosure. I am unsure of the relevance of this point.
Mr Rosser informs the Court that in his view and based upon his experience it would be difficult to prepare Grimaud’s case and that there may be some difficulty in finding experienced Counsel available at relatively short notice.
There is then material in the affidavit (paragraph 38 et seq) concerning the availability of Mr Grimaud but in my view, those matters are overcome by the fact that Mr Grimaud must be involved in the within proceedings in any event.
As became clear in argument, Mr Rosser was informing the Court of his position not having received any detailed instructions and to that extent his affidavit is largely opinion based upon an obviously high level of expertise and experience. The Court is not bound by but is obviously assisted by this affidavit.[18]
[18] Warren v Coombes (1979) 142 CLR 531.
Cross examination on the affidavits would not have elucidated this position to any extent because that position will still be the same – Mr Rosser’s best estimate based upon the information then available to him. In my view, any criticism of a failure to cross examine Mr Rosser in those circumstances is unjustified.
Mr Rosser’s firm did not prepare the affidavit of Mr Grimaud filed as his evidence nor did it advise him on non-party disclosure. That was all done by the plaintiff’s solicitors who apparently have canvassed with Grimaud the pertinent features of what has now become the “first Japan conversation”.[19]
[19] These matters must have been at the forefront of the mind of the plaintiff when he filed his amended Reply and Defence to Counter Claim on 22 November 2012.
In my view, there is real force in the submission made by Mr Cudmore that the proposed secondary party must now confront a claim involving some $2,000,000 (the maximum limit of the plaintiff’s claim) and has had no opportunity to assess and resolve tactically upon his approach to the whole matter.[20]
[20] The significance of the opinion of Grimaud’s Japanese partner therefore also looms large on the issue of the assessment of damage.
Examples were given that ranged from the possibility of a challenge to the plaintiff’s damages claim (that the interest of the plaintiff and the proposed third party would diverge) to a credit challenge to Griffin on a similar fact evidence basis.
I have taken all of these matters into account and I accept Counsel’s assurance of the difficulties facing the proposed secondary party particularly at this time of year. I have taken into account all of the matters put to me by Mr Cudmore in this respect.
In my view, there is a balancing aspect of this matter. All of the issues raised in this regard are matters that will be relevant to the issues of credit of Mr Griffin.[21]
[21] An exception may be the question of similar fact evidence. However I think that is an extreme example and is unnecessary of further consideration.
That test of credit involves a comparison of Griffin’s evidence and the evidence of Grimaud.
Factual errors by the Master
The Master appears to have drawn a distinction between the meaning of the words in the original Defence and Cross Action filed by Griffin and the amended document filed on 19 November 2012. It is necessary to disclose the paragraphs of the Master’s judgment. They are as follows:-
“[25] The original Defence and Cross Action of 13 June 2012 (FDN7) paragraph 23 pleaded what was called the “further representation”. It related to the plaintiff’s extension contract and pleaded that in January 2011, Mr Grimaud said to Griffin words to the effect that the plaintiff had been offered a coaching position in Japan which would result in him being paid about $1,000,000 per year.
[26] That representation changed over time and before the extended contract was negotiated, but it is similar to the forceful statement made by Mr Griffin in Exhibit ASC9 in the email to Counsel of 21 August 2012 which he has been repeating, from his point of view, ad nauseam, for months.
[27] The pleading then changes in the second Defence and Cross Action of 9 November 2012 (FDN37) after Mr Grimaud filed his affidavit in this action. It was sworn 1 November 2012, and filed some days later.
[28] Mr Grimaud actually deals with this point, I will not say completely expansively, but relevantly for the purposes of the plaintiff’s action. The pleading in the second Defence at paragraph 31 is to the effect that on 19 November 2010, Grimaud said to Griffin words to the effect that the plaintiff has been offered a coaching position in Japan which would result in him being paid $1,000,000 etc. That is now called the “first Japan representation” and it is some months earlier (November 2010) than the original version of the plea (January 2011).
[29] So to summarise on the defendant’s assertion, in November Mr Grimaud is stating to Mr Griffin that the plaintiff has received an offer for $1,000,000 which is not true. This seems to be Mr Griffin’s prime complaint. However well before the extension contract is signed in April 2011, there are emails from Grimaud to Griffin in January 2011.
[30] Although they are called the second and third Japan representations they are put in much softer terms, namely:-
1. that the plaintiff could earn more than double the $370,000 per annum which was being offered here; and
2. that the offer proposed by Mr Griffin of $370,000 per annum was well short of what the plaintiff could earn elsewhere.
[31] There is noted reference in the emails that the plaintiff having received an offer nor any reference to the $1,000,000 earnings.”
These findings seem to have been quite important to the approach taken by the Master to the decision because the Master later said that in his view that case was “weak”.
However, there are a number of points that need to be made: despite the fact that the dates of the pleadings of the conversations between Grimaud and Griffin have changed, in my view the content of them have not changed. The content of paragraph 25 and 28, in reference to the pertinent conversation, are so similar as not to offer a point of distinction. In my view the Master is factually in error in that regard. The point of distinction in terms of those conversations is their dates. However, memories can be refreshed from extraneous documents including diaries.
The focus of these comments is not only on the factual error but also the attitude of the Master to the strength or otherwise of the defendant’s case. In my view it is inappropriate to enter that debate but the issue here is that it is impossible for me to know what effect this error had on the mind of the Master in exercising his discretion. Having stated his attitude, I must presume that the Master’s view was a matter that he took into account in weighing what on any view is a finely balanced matter.
The second criticism is that it was some three months or more after the original first Japan representation was made to Griffin that the contract extension was signed, but it is a question for the trial Judge whether the representation allegedly made by Grimaud to Griffin in the first conversation was still operating upon the mind of Griffin and the defendant at the time that the defendant agreed to the extension of the contract of Grimaud’s client, the plaintiff.
Thirdly, it is suggested that the second and third representations are put in much softer terms. However close attention needs to be made to the actual terms of what was said in the emails and what was actually pleaded. I refer in particular to the Master’s reiteration of the first email as follows:-
“that the plaintiff could earn more than double the $370,000 per annum which was being offered here; and”
That is not in fact what is pleaded by the defendant and it is not what is contained in the emails. I set out paragraph 32 of the Second Defence and Cross Action of 9 November 2012 hereunder:-
“32. In January 2011, in the course of the contract extension negotiations, Mr Grimaud and PSMA represented to Mr Griffin that the plaintiff could “earn more than double $370,000 (AUD) per annum net in Japan (the second Japan representation)(my emphasis).
Particulars
32.1 Email from Mr Grimaud and PSMA to Mr Griffin dated 4 January 2011”

This is a significant error in the context of this matter because the approach of the Master was to suggest, indirectly, that there was a real prospect that a Court will give less weight to the clash of credit between Griffin and Grimaud, because Grimaud was communicating in a way that was inconsistent with the first Japan representation continuing to actively operate on Griffin’s mind.
I raised with counsel in the hearing of the appeal that on any ordinary view, this representation is consistent with an understanding that the plaintiff could earn some $740-750,000 after tax in Japan. I put the proposition to counsel in argument that this figure was in some way consistent with and “…was not very far from…” the figure of $1,000,000 that Griffin alleged Grimaud discussed with him in the first conversation which Griffin now alleges occurred in November 2010 (as opposed to January 2011 which was Griffin’s first position). No counsel at the bar table disagreed with that proposition.[22]
[22] Mr Whitington QC agreed and Mr Cudmore and Mr Douglas did not address the issue.
It follows that in my view, the Master was also in error to suggest that the second and third representations when read together with the first representation are to be seen as being put in much softer terms. Rather, on one view (that is plainly open to the trial Judge), they may be entirely consistent.
Despite the opinion expressed by the solicitor Mr Rosser in his affidavit about what may need to be done in respect of Grimaud to have the matter ready for trial, the pertinent features of the contest between Griffin and Grimaud must be canvassed completely in the trial. In that respect, it would be surprising and very unsatisfactory that such matters would need to be canvassed again in separate proceedings between Griffin and Grimaud because of the real and very obvious risk of inconsistent verdicts in respect of the same issues. This is contrary to both the philosophy of the Rules and the common law.[23]
[23] JN Taylor Holdings Ltd (in liq) and Anor v Alan Bond and Anor (1993) 59 SASR 432 at p 440, 441 and 442.
Mr Cudmore counsel for Grimaud addressed the application of principle in respect of the authority Barclays Bank v Tom [1923] 1 KB 221. The criticism of Mr Cudmore in that regard was that Mr Whitington was in error to suggest that the usual and conventional practice in the Court was that the third party could appear in the principal action but have limited participation and then the third party trial could take place at another time.
In my view, that is not the submission put by Mr Whitington QC who recognised the content and philosophy of Rule 210 of the Rules emphasised the chapeau terminology of that Rule as follows:-
“Rule 210
Unless the Court otherwise directs or issues…”
The drafting of the chapeau of the Rule recognises the discretion of the Court to separate matters out in appropriate circumstances. Of course any question of the separation of proceedings in this matter will be for the decision of the trial Judge and I will address that matter later.
Mr Cudmore then submitted that in the within proceedings, his client would want to be heard on every aspect of the plaintiff’s claim against the defendant, particularly the part of the Cross Claim based upon Griffin’s evidence. Of course, the position is that it is a matter between counsel retained for the defendant and counsel retained for the proposed third party (if it is the case) as to who cross examines first.[24] But the more important question is the extent of what now may be done by Grimaud in terms of the participation in the plaintiff’s case. In my view, it is a question of judgment whether Grimaud will take a robust and central role in the proceedings. Having regard to the amended paragraph 22 of the plaintiff amended Reply and Defence to Counter Claim of 14 November 2012 and the plaintiff’s deliberate disassociation from all (my emphasis) of the alleged 3 Japan representations, it would be surprising that by no later than 14 November 2012 Grimaud made a complete reassessment of his position in the action. Grimaud will have been aware from at least 14 November 2012 of the attitude of the plaintiff to the three Japan representations.
[24] So that counsel do not attempt to traverse ground already covered in cross examination.
The next criticism made by Mr Cudmore was that, before the Master at first instance, there was no suggestion that the Master should approach the matter on the basis of a “split trial” of the relevant third party proceedings. However, I am not satisfied that is the case. I have read the transcript before the Master and I refer in particular to page 30 line 18 where Mr John Whitington of Counsel made it clear to the Master that he did not accept that it was necessary for there to be an adjournment of the relevant trial, that the matter could proceed on the basis of the trial date as it exists and that, ultimately, the issue is between the defendant and the third party could be resolved later. The response of Mr Cudmore was to the effect that the question of participation (of his client Grimaud) was a matter yet to be resolved. However, that is not an answer. The question is the relevant exercise of discretion having regard to the matters before the Court.
It is at least clear from paragraphs [10] and [71] of the Master’s reasons that the Master did give consideration to the possibility of the third party proceedings being separated out from the proceeding to be determined on the 14 January 2013. Having considered that matter, the Master said:-
“[71]
“…that does not finally assist the defendant and there will still be a separate trial of the other issue.”
It is unclear to me how it could be that this would be a matter that would militate against the exercise of the discretion. Submissions were made to me that the Master seems to have given consideration to this matter without submissions on the point. I have addressed Mr Whitington’s submissions earlier in these reasons. But the Master has discounted the importance of the point on the basis of the possibility of separate trials. But separate trials of, for example the primary and secondary issue are recognized by the chapeau of Rule 201. That concept is not inconsistent with the spirit and intention or the operation of that Rule.
In this case the possibility of a separate trial is not counter intuitive because the primary trial will exhaust the credit clash between Griffin and Grimaud. If that is unfavourable to Griffin, the defendant in all likelihood will reappraise its position. If favourable, Grimaud and the plaintiff must be given time to reappraise their position.
In passing, Mr Cudmore referred to the decision of Justice Besanko in Mulvaney (as liquidator of the Hellenic Athletic and Soccer Club of SA Inc.)v The Commissioner of Taxation for the Commonwealth of Australia [2004] SASC 166 (8 June 2004). I will return to that judgment later. In my view, the judgment does not assist Mr Cudmore’s client.
Mr Cudmore’s complaint[25] was that the error that the Master was said to have committed was not a matter that was put to the Master for his considerations. However, in my opinion, there seems to have been a gap in the understanding of the parties and their submissions to the Master in respect of the basis upon which the application was being put. I have identified a number of matters but I refer again in particular to paragraphs [10] and [71] of the Master’s judgment in respect of which I am told that no submissions were put. Notwithstanding, the Master has given those matters consideration in his reasons. The question for me is whether his reasoning evidences an error as previously defined.
Finally, Mr Cudmore submitted that it was the inevitable consequence of the matter that if the third party was joined, the trial would be adjourned.
Mr Cudmore then relied upon the decision of Chief Justice Doyle in Imagecolour (SA) Pty Ltd (in liq) v Curtis [2000] SASC 316 on the question of the exercise of a discretion and upon the decision of the High Court in AON Insurance[26] in respect of a late amendment to join a party to the proceedings. I will return to those matters later.
Authorities
[25] T47.8
[26] Supra.
Earlier in these reasons, I have set out the relevant passages in the observations of Scrutton LJ in Barclays Bank v Tom at pages 223-224 of the report.[27] The same passages were referred to by his Honour Justice Besanko in Mulvaney.
[27] [1923] 1 KB 221 at 223-224.
The pertinent features arising from those observations are that the plaintiff does not necessarily have an interest in a remedy claimed by a defendant against a third party. The defendant certainly has such an interest in ensuring that a third party is bound into the proceeding so as to avoid the defendant having to fight the case twice, possibly on different materials and with a risk that a different result might be arrived at by the second Court.
The primary interest therefore in the third party proceedings is to bind third party to the decision as between plaintiff and defendant and to get the issue as between the defendant and the third party decided at the same time as or as soon as possible after the decision between the plaintiff and the defendant on their case. Because of the potential interest of the third party in the proceedings between the plaintiff and the defendant (naturally arising because, to a large extent, those issues determine the matters to be ventilated between defendant and third party) the third party will have an interest in appearing at the trial between the plaintiff and the defendant.
The observations made by Lord Justice Scrutton must be viewed in the background of modern practice. The parties before me were in an agreement that modern practice is to permit the action as between the plaintiff and the defendant and as between the defendant and the third party to run together however, that does not affect the logic of the reasoning and observations of Lord Justice Scrutton in Barclays Bank v Tom. That is because, similar to the chapeau of Rule 210 of the Rules, the Court has discretion as to whether or not the two proceedings will run together albeit that this Rule reflects a philosophy that the two matters should run together.
As I have already said, this is a matter for the trial Judge and must await the decision of that Judge.
I was also referred to the decision of Justice Ormiston in his decision in the Supreme Court of Victoria in Consolidated Exploration Limited v Ord Minnett Limited, a decision of the 15 April 1993.
This case concerned an action that the plaintiff sought to be set for trial and in which an application was made to issue third party proceedings. With the leave of the Court the third party proceedings were issued against three former directors of the defendant company, and two other corporations. The third party claim depended entirely on the plaintiff’s success in its claim and the defendant sought in substance to be indemnified against any damages which the plaintiff may recover for what is said, on that basis, to be inaccurate information provided by each of the third parties to the defendant in and about the preparation of an expert report. To that extent, the facts of that matters are apposite the facts in the within action.
The plaintiff criticised the delay in bringing the third party action. There were cross accusations of delay and obfuscation as between plaintiff and defendant which could not be resolved by Justice Ormiston.
His Honour took into account the question of delay and, after acknowledging the observations of the Full Court of the Supreme Court of Victoria in AMP Fire and General Insurance Company Ltd v Dixon[28] concerning the desirability of contemporaneous trials, his Honour formed the view that the late joinder of the third party would delay the plaintiff’s trial for an unnecessarily long period of time. Justice Ormiston also formed the view that in relation to commercial causes, the Court should be bolder in dividing issues and less hesitant in trying to dispose of severable claim.[29]
[28] (1982) VR 833.
[29] Ashmore v Corporation of Lloyds (1992) 1 WLR 466 (House of Lords).
The Court was of the view that it was preferable for the plaintiff’s claim to be heard first in any event because if it fails, there would be no need to pursue the third party claim. If it succeeded, claims as between the defendant and the third party would be much clearer and therefore less inconvenience would be caused by hearing the plaintiff’s claim against the defendant first. His Honour made Orders for the separation of the plaintiff’s claim against the defendant and the defendant’s claim against the third party.
Obviously enough, there are factual differences between the case under consideration and the decision of Justice Ormiston in the Consolidated Exploration Limited case. However, there are distinct similarities.
In my view, there is a real possibility that an unfavourable finding for the defendant in the action as between plaintiff and defendant will substantially resolve a number of the issues extant between the defendant and the third party. There will be a substantial lessening of the claim as between the defendant and the third party because witness statements would already have been introduced and that would reduce the hearing time of those claims and therefore less inconvenience would be caused by the separation of those matters.
Justice Ormiston made reference to the Full Court of the Supreme Court of Victoria decision in AMP Fire and General Insurance Company Limited v Dixon and Anor.[30] In that case, the Full Court expressed the view that it would only be an exceptional circumstances that the power to order separate trials of the plaintiff’s claim against the defendant and the defendant’s claim against the third party should be exercised.[31] Their Honours considered those matters after confirming the correct approach to the issue of the third party claim consistent with the judgment of Lord Justice Scrutton in Barclays Bank v Tom.[32]
[30] [1982] VR 833.
[31] Standen v GH Varley Pty Ltd (1956) 56 SR (NSW) 346; Godfrey v Nominal Defendant (1963) 63 SR (NSW) 412.
[32] [1923] 1 KB 221 at 224.
The test of “exceptional circumstances” is not applicable to an application under Rule 74 and Rule 210.[33]
[33] See: Lander J in Port Pirie City and District Council v Leenders and Partners Pty Ltd [2001] SASC 208 at [44]-[47] and Besanko J in Mulvaney at [19].
Mr Whitington QC also addressed the decision of the Full Court of the Supreme Court of South Australia in the JN Taylor Holdings Limited case. I have already made reference to this case and the relevant passages from the decision of King CJ. I will not repeat those matters. In my opinion, the principles as enunciated by King CJ in this case are now so well known and well settled that they need no further elucidation by me. It is sufficient to say that although the JN Taylor decision involved the question of the joinder of an insurer as an additional defendant in the proceedings to bind in the insurer to the case that the plaintiff brought against the defendants (one of whom was bankrupt and an asset of whose estate under s117 of the Bankruptcy Act, was the right of indemnity against the insurer), in the passages that I have previously quoted at pages 440-441, King CJ covers the same ground as would be covered by a trial Judge or Master in relation to the question of a decision to decide to permit (or not) the issue of a third party proceeding. It is to be recalled, that the JN Taylor case, like this case, was an appeal in respect of the exercise of the discretion (in this instance of the trial Judge) King CJ emphasised the importance of findings of fact in the principal proceeding about breaches that cause loss and the concomitant determination of whether particular actions were wrongful within the meaning of the policy and whether there might have been a breach of the policies.
In particular, his Honour emphasised the undesirability of matters being covered twice in evidence in circumstances where a second round of litigation on the same topic would involve canvassing the same evidentiary grounds.
The plaintiff and the proposed third party rely upon the decision of the High Court in AON Risk Services Australia Limited v Australian National University.[34]
[34] [2009] 239 CLR 175.
Although the facts of this case are well known, they do bear a rehearsal. At paragraph 1 of the decision, French CJ said as follows:-
“In November 2006, at the commencement of a four week trial of an action against its insurers and its insurance broker AON Risk Services Australia Limited (AON) the Australian National University settled with the insurers and consent Orders were made to give effect to the settlement. ANU then applied for an adjournment of the trial to make substantial amendments to its Statement of Claim against AON… the adjournment was granted, the application for amendment was heard two weeks later but the reasons… of the primary Judge were not delivered until 12 October 2007.”
The relevant passages in the judgment of French CJ to which I was taken were at paragraph [32] and in particular the reference to Rule 501(c) and the need to avoid a multiplicity of proceedings. The Chief Justice emphasised that Rule was to be understood as operating within the framework of an ordered progression to a fixed trial date (my emphasis). His Honour then went on to say:-
“It does not oblige the Court to accept the addition of new claims at the last moment before trial, on the basis that if they are not allowed there might be subsequent proceedings in which those claims are raised. The steps which are 501(c) requires to be taken to avoid multiple proceedings are “all necessary amendments”. The Court had not basis for inferring that, absent the amendments there would be further proceedings.”
The within case is not one which involves the addition of new claims at the behest of the defendant. Rather, in a series of exchanges of pleadings after the matter has been set down for trial, there has been further clarification of the matters arising between plaintiff and defendant that give rise to the necessity to join a third party (in the defendant’s mind) as a party properly before the Court to be bound into the findings of fact made as between plaintiff and defendant.
At paragraph [33] of the judgment, Chief Justice French also raised the issue that the matters proposed to be raised by ANU (which could be raised in fresh proceedings) were claims that could have been raised against AON much earlier in the existing proceeding. It is true that the potential claim against Grimaud was raised by Griffin with solicitors and Counsel soon after the commencement of the proceedings. It is clear that Griffin was agitating for consideration to be given for the issue of the secondary party proceedings. The position reached was that advice was obtained from Counsel about the utility of the joinder of Grimaud. However, there was also a written confirmation received from the plaintiff’s solicitor that identified that the plaintiff, to the extent known, bound itself to the representations made by Grimaud. At that time, the second and third Japan representations had not been pleaded but a form of pleading existed which identified what became the first Japan representation.
The issue here is that there appears to have been some evolution of the parties’ cases throughout the last half of the calendar year 2012 and especially after the Master has set the matter for trial. The pertinent exchanges between solicitors concerning the actual and ostensible authority of Grimaud occurred prior to the matter being set for trial although the plaintiff had already succeeded in his application for an early trial date and the priority date was given in September 2012.
Be that as it may, when a comparison is made of the position in the pleadings as of that date and the position as it pertained on 14 November 2012, there are discernible differences of position that give rise to a need for further consideration of the relevant matters operating upon the rights, liabilities and obligations of the parties.

The High Court has plainly set down in the AON decision that having regard to the relevant Rules of Court and common law principles, a party does not have an entitlement to amend the pleading merely upon the payment of costs where there had been substantial delay, wasted costs and a significant effect on the parties and other litigants. That is not this case.
Mr Douglas relied upon the other decisions of the Master but, in that context, the same Master made the decision in relation to the application to issue the secondary party proceedings under the Rules. It follows that those reasons are of only minimal assistance.
The Master appears to have proceeded on the basis that the question of whether or not leave to issue the proposed second party proceedings should be granted was unaffected by the fact of the very late amendment of the party’s pleadings involving in particular the s7(2)(b) Misrepresentation Act plea of the plaintiff of 14 November 2012 in the context that, earlier on the 22 August 2012, the plaintiff had confirmed the authority of the same agent (from which it would now disassociate himself).
In my opinion, the decision about whether a proposed secondary party action may be issued with leave was required to be considered in the whole of the context of the amended pleadings as they then existed, the cases that each party then had to meet and the completely changed landscape of the proceedings arising therefrom.
Different from the position that pertained on 22 August 2012, the plaintiff now pleads that it disassociates itself from any representation alleged in the first, second and third Japan representations pleaded by the defendant as being without actual/implied or ostensible authority (my emphasis).
The defendant may well be left with a breach of warranty of authority claim against Grimaud, or alternatively a direct claim under the relevant Fair Trading Act and consumer legislation. Either way, this position developed well after the matter was set for trial, after the priority date for hearing was set and where the plaintiff did not object to the amendment of the defendant’s pleadings on 9 November 2012.
The Master appears to have focused only on the exigencies of maintaining the priority early trial date when the inconsistencies surrounding issues for determination between plaintiff and defendant had been dramatically changed by a “side wind” partly of the plaintiff’s making.
Allied to that issue and not separate from it, the Master also treated the result of a positive finding in favour of the defendant as automatically leading to an adjournment of the trial of the action set to be heard on 14 January 2013.
The substantive issue of the proposed secondary party proceedings is already an issue in the within proceedings. A trial Judge hearing this matter may decide to make Orders for the disposition of any proposed secondary party action separate from the trial of the within action but in circumstances where the parties are bound in to the factual findings as between plaintiff, defendant and third party in respect of each of the Japan representations.
In respect of the Master’s judgment at paragraph [71] of his judgment, there is no reasoning disclosed which explains the focus of the Master upon the exigencies of the priority trial date and the rejection of the possibility of split trials (by Order of a trial Judge) as being of no assistance. The Master may well have taken a practical view that he could not consider that matter further because that was the province of the trial Judge. However the Master has adverted to that matter and dismissed it without explaining his reasoning.
Errors made by the Master
In my view, the Master has failed to properly take into consideration the fact that the late disclaimer by the plaintiff of Grimaud’s authority affected both the Misrepresentation Act case as well as the misleading conduct case of the defendant and as a consequence, rendered Grimaud an essential participant in these proceedings.
In that context, the Master failed to give appropriate considerations to the sequelae of that late change of position by the plaintiff namely:-
1.   The significance of the fact that Grimaud will likely take a different view to the giving of evidence in the main proceedings in support of the plaintiff as a result of that late change;
2.   The need to bind Grimaud into the findings of fact in the principal proceedings;
3.   The real possibility of inconsistent findings in two trials;
4.   The fact that in light of the late disclaimer by the plaintiff in respect of Grimaud and the attitude of the defendant, Grimaud will in all likelihood take a different attitude to the plaintiff’s damages claim that is, in turn, complicated by the involvement of Grimaud’s business partner in Japan who was to be called as an expert witness on behalf of the plaintiff;
5.   The effect upon the plaintiff’s damages claim as a result.
In these particular circumstances, I am of the view that the Master failed to give proper weight to the necessity to hear and decide upon and issues arising as between the defendant and Grimaud consequent upon the plaintiff’s late disclaimer of the statements made and allegedly made to the defendant by Grimaud as the plaintiff’s agent.
In my view, and in all of those circumstances, the Master erred by failing to give proper consideration to the possibility of the joinder of Grimaud under Rule 74 and the possibility of an Order by the trial Judge under Rule 210 for separate hearings of the claims between the defendant and Grimaud but with the entitlement of Grimaud to participate in the primary proceedings.
The Master also erred by giving consideration only to the view that an Order for joinder necessitated an adjournment of the primary proceedings and that joinder should be refused whereas, the possibility of separate inconsistent findings in two separate trials on issues that arise largely but not solely as a result of a late amendment and the prejudice suffered therefore well outweigh the prejudice that may be suffered by the plaintiff from an Order for joinder.
In my opinion, the Master also made errors of fact in and about the content and meaning of the defendant’s misrepresentation and misleading conduct claim and then concluded that such a case pleaded by the defendant was “weak”. It is inappropriate to enter into an assessment of the parties’ prospects based upon pleadings: the essential feature is that having stated his view about prospects (at the time that he was weighing issues in the balance) he did so based upon an erroneous view of the content of those pleadings and possibly as well, their effect. In the absence of any ability on my part to quantify the effect of such an error in a matter such as this, I am left in position that such an error, if corrected may have affected the view that the Master took to an essential question, namely the possibility if inconsistent verdicts in separate trials of issue.
I am satisfied that the Master has made a relevant error sufficient to satisfy the requirements in House v The King and the discretion of this Court to interfere with the judgment of the Master has been enlivened.
Having found that the decision of the Master is vitiated by error, it is necessary for me to exercise the discretion afresh. I am mindful of the decision of Doyle CJ in Imagecolour (SA) Pty Ltd (in liq.)andSheahan v Curtis and Ors.[35]At paragraph [27] his Honour opined that even if he was to exercise the discretion afresh, he would not allow the third party proceedings to be issued because: “there is every reason to think that the third party proceedings will delay the main action and there is a real possibility that the delay will be substantial.”
[35] [2000] SASC 316.
Notwithstanding those comments, his Honour went on to hold in paragraph 28 as follow:-
“[28] There is still the opportunity to have the third party proceedings heard at the same time as the main proceeding, but if they are to be protracted, that is the third party proceedings, I consider that weighing everything up, the interest of justice and the balance of convenience favours disposing of the main proceedings without further delay.”
My understanding of his Honour’s reasoning is that there was still sufficient time in that matter within which the defendant could issue a separate proceeding against the proposed third party and then seek an Order of the Court that the two proceedings be heard together. Those were all matters for a later exercise of discretion.
However, his Honour was satisfied that there was every reason to think that the third party proceedings would delay the main action but his Honour did not give consideration to a separation of the main action and the third party proceedings. But in any event, his Honour was satisfied about delay.
Substantial submissions have been put to me concerning the effect upon Grimaud of an exercise of discretion in favour of the defendant for the issue of secondary party proceedings. As I have said, those matters must be looked at in the context of the relevant tests which I am asked to address. They are summarised by Justice Besanko in Mulvaney[36] where his Honour held:-
[36] Mulvaney (as liquidator of the Hellenic Athletic and Soccer Club of SA Inc.) v The Commissioner of Taxation for the Commonwealth of Australia [2004] SASC 166 at [21].
“[21] In Imagecolour, the Chief Justice identified a number of the factors which he said are relevant to the decision whether to grant leave… those factors are:
1.   The explanation for the delay in issuing the third party proceedings
2.   The impact of the proposed third party proceedings on the orderly conduct of the proceedings between the plaintiff and the defendant
3.   The risk of inconsistent findings if the two sets of proceedings are tried together
4.   Overall efficiency including the question of whether there are common witnesses.”
I have previously set out the content of Rule 74 and Rule 210 of the District Court Civil Rules. However, for the purposes of the exercise of the discretion, I will continue to consider the four matters identified by Chief Justice Doyle in Imagecolour but in reverse order.
Overall efficiency
In my opinion, the overall efficiency of the plaintiff’s claim as against the defendant would not be sufficiently adversely affected by the joinder of the claim between the defendant and Grimaud to a hearing of the claim between the plaintiff and the defendant. This is because in the determination of both matters, one of the essential features (if not the essential feature) is the credibility of the version of events put forward by Griffin on the one hand and Grimaud on the other. If the Order is not made, then the same witnesses will be involved in the separate proceedings. The witnesses are common. The same applies to the factors relating to the disassociation of the plaintiff from the alleged representations made by Grimaud. From an efficiency point of view, it would greatly assist a Court to hear all of that evidence together so that it has the evidence of all three parties in respect of all matters. In my view therefore, overall efficiency is greatly assisted by the inclusion of the third party proceedings.
The risk of inconsistent findings if the two sets of proceedings are tried separately
I have already addressed this matter in some significant detail. In my view, there can be no contest that there is a significant risk of inconsistent findings if the two set of proceedings are tried separately. That risk will abate completely if the trial of the action between the plaintiff and the defendant is separated from the trial of the action between the defendant and the third party but with liberty for the third party to be represented at the trial of the action between the plaintiff and the defendant.[37] In my view, there can be no realistic contest that there would be no sufficient risk of inconsistent findings.
[37] Rule 210 District Court Civil Rule.
The impact of the proposed third party proceedings on the orderly conduct of the proceedings between the plaintiff and the defendant
I accept there will be an impact however, every third party proceeding has an impact upon the proceedings upon the plaintiff and the defendant. The issue is the impact of the proposed third party proceedings on the orderly conduct of the proceedings between the plaintiff and the defendant (my emphasis). The plaintiff has already announced its position in paragraph 22 of its further amended Reply and Defence to Counter Claim. The plaintiff has disassociated himself from the alleged representations made by its agent Grimaud. In those circumstances, Grimaud faces real issues for decision about how it will participate in the action between the plaintiff and the defendant. On one view, it is quite understandable that Grimaud may no longer agree to assist the plaintiff in giving evidence on behalf of the plaintiff in the proceedings. On another view, Grimaud may give every assistance to the plaintiff to defeat what it may perceive to be an unsustainable attack upon it by Griffin and the defendant in relation to the first, second and third Japan representations. But that circumstance is not to be laid at the feet of the defendant. That circumstance is as a result of a combination of events namely the exchanges between solicitors prior to the matter being set for trial in September 2012, the amended pleadings of the defendant of 9 November 2012 and the amended pleadings of the plaintiff on 14 November 2012.
It follows in my opinion that it was always likely that there would be significant and difficult issues arising between the plaintiff and Grimaud in the proceedings between the plaintiff and the defendant. In those circumstances, it is a matter for the judgment of both the plaintiff and Grimaud how the matter proceeds but the important issue here is that those are matters that would arise in any event once the third party proceedings are issued. They are live issues now and they would be live issues if the third party proceedings were heard together with the principal proceedings.
The explanation for the delay in issuing the third party proceeding
Significant criticism is made of the defendant and its advisers for failing to issue the secondary party proceedings earlier. There are explanations for that delay but none which answer those criticisms. In my view, there is real force in the criticisms to be made of the defendant’s advisers. However, the issue of the delay in issuing the third party proceedings must be seen in the context of the factual history of the matter which I have already set out in detail in these reasons. On one view, it may be said that the pleading of the plaintiff of 14 November 2012 was a further basis upon which a party may have sought the issue of the third party proceedings. That submission would have real weight bearing in mind the content of the letter from Minter Ellison to Griffins Lawyers of 22 August 2012 concerning the authority of Grimaud. In my view, although a real criticisms can be made of the defendant’s advisers, those criticisms must be seen in the context of the peculiar factual circumstances of this case as I have already explained them.
In my view, notwithstanding that there is no proper explanation for the delay, it is not so significant as to outweigh the other factors which I have discussed above.
In my view, in the exercise of my discretion, I would grant leave to the defendant to issue a secondary party proceeding against Mr John Grimaud and Proactive Sports Management Australia Pty Ltd (ACN 097323 638) as third parties in this action pursuant to Rule 74(1) of the District Court Rules 2006.
Earlier in my reasons, I have identified the need to make appropriate Orders and Directions consistent with the philosophy of the Court that preserves both the entitlement of the plaintiff to have his early priority trial but which also bind the plaintiff, the defendant and Grimaud to the result of the action between the plaintiff and the defendant. I therefore make the following Orders and Direction:-
1.   I allow the appeal against the decision of Master Rice of 23 November 2012;
2.   I find that special circumstances exist for Rule 131 of the Rules and that the defendant be granted leave to issue an application to join secondary parties to this proceedings pursuant to Rule 74 of the District Court Civil Rules;
3.   That the defendant be granted leave to join Mr John Grimaud and Proactive Sports Management Australia Pty Ltd (ACN 097323 638) as third parties to this action pursuant to Rule 74(1) of the District Court Rules 2006;
4.   That the time for filing and service of a third party notice and third party Statement of Claim in the form of the third party notice and third party Statement of Claim exhibited to the affidavit of Jason Phillip Duldig dated 6 November 2012against the proposed third parties Mr John Grimaud and Proactive Management Australia Pty Ltd (ACN 097323 638) be extended pursuant to Rule 117(2) of the District Court Rules to midday on 13 December 2012;
5.   That the time for the filing and service of the Defence of the third parties Mr John Grimaud and Proactive Management Australia Pty Ltd (ACN 097323 638) be abridged to 4:00pm on Friday 4 January 2013;
6.   That the time within which the defendant shall file any Reply or other pleading in response to the Defence filed by the third party be abridged to 4:00pm on Tuesday 8 January 2013;
7.   Liberty to all parties to apply on short notice;
8.   That the defendant have the costs of the appeal.