Russell v Aitken Partners (A Firm) (Ruling No. 4)
[2017] VCC 1865
•12 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-05222
| Christopher Andrew Russell |
| v |
| Aitken Partners (A firm) |
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JUDGE: | JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 12 December 2017 | |
CASE MAY BE CITED AS: | Russell v Aitken Partners (A Firm) (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1865 | |
Ruling
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Subject:Application pursuant to rule 9.02 to join a further defendant to the current proceeding
Ruling: Application refused
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HIS HONOUR:
1 The Plaintiff makes application to amend his statement of claim so as to join as a second defendant to this proceeding, the legal firm of Grindal Patrick.
2 The application is made under order 9.02 of the rules of the court which allows two or more defendants to be joined in a proceeding:
(i) if a common question of law or fact arises in the proceeding; and
(ii) all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions; or
(iii) where the court gives leave to do so.
3 As to the approach which should be taken in deciding the issue as to whether leave should be given to allow such a joinder it is trite that the authorities establish a number of factors which should be considered namely:
(i) are the proceedings broadly of a similar nature;
(ii) are there issues of fact and law common to each proceeding;
(iii) will there be a substantial saving of time if the proceedings tried at the same time, compared with each proceeding being tried separately;
(iv) will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence;
(v) is one proceeding further advanced in terms of preparation for trial than the other;
(vi) are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
4 In this instance there is some connection between the facts relevant to the current proceeding and the proceeding the subject of a joinder application in that historically the claim brought by the plaintiff against each of the defendants arises out of a transaction involving the entry by the plaintiff into the contract for the purchase of a farming property.
5 In reality, however, the two proceedings involve only a historical connection; the primary basis of the claim being made by the plaintiff against Grindal Patrick is that it engaged in unconscionable conduct by commencing a proceeding on behalf of the plaintiff contrary to specific instructions from the plaintiff that no such proceeding should be commenced.
6 Further there is no issue that the conduct about which the plaintiff makes complaint in relation to the proceeding proposed against Grindal Patrick occurred after the termination of the retainer between the plaintiff and the present defendant.
7 In the circumstances I am satisfied that it is only with the leave of the court that the joinder of Grindal Patrick to the current proceeding should be allowed.
8 In considering the relevant factors which apply to this application as referred to above, I am not satisfied that any of the factors speak in favour of the joinder of the proposed defendant to the current proceeding.
9 I am equally satisfied that a number of factors speak against that joinder namely:
(i) that the proceeding to be commenced against the proposed defendant:
a. could not be described as being broadly of a similar nature; and
b. whilst it does involve some similar issues of historical fact it involves no true identity of issues of fact or law ;
(ii) that the joinder of the proposed defendant will not result in a substantial saving of time if the proceedings are tried at the same time compared with each proceeding being tried separately but rather the opposite, namely that the joinder of the proposed defendant will be likely to extend not only the pre-trial work but also the eventual trial beyond that which would likely be the case should separate proceedings be commenced; and
(iii) that the current defendant and the proposed defendant would be likely to suffer inconvenience and/or prejudice by reason of their being involved a proceeding the legal costs associated with which are likely to be substantially increased when compared with the pre-trial and trial costs in separate proceedings with separate proceedings
10 For the reasons set out above I am not satisfied that the plaintiff should be given leave to join the legal firm of Grindal Patrick as a party to the current proceeding and I will make the following order.
11 I am satisfied that this matter clearly falls into the category of cases in which costs should follow the event. I make that finding taking full account of the fact that the plaintiff is self-represented and that he has a limited understanding of the operation of the law. Against that must be balanced the costs to the defendant in preparing their submission in opposition to a misconceived application which has ultimately been unsuccessful.
12 I reserve to myself the fixing of the costs and direct that the defendant provide particulars of the costs sought, both to the plaintiff and the court, within seven days.
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