Samad and the Barbara Street Clinic v The Council of the City of Fairfield, the D-g of the NSW Health Department and the District Court of New South Wales

[1999] NSWCA 349

CITATION:	Samad and the Barbara Street Clinic v The Council of the City of Fairfield, The D-G of the NSW Health Department and the District Court of New South Wales [1999] NSWCA 349 revised - 27/06/2000
FILE NUMBER(S):	CA 40567/99
HEARING DATE(S):	12 August 1999
JUDGMENT DATE:	2 September 1999
PARTIES :	Dr Abides SAMAD, Mary SAMAD and the BARBARA STREET CLINIC v THE COUNCIL OF THE CITY OF FAIRFILED, THE DIRECTOR GENERAL OF THE NSW HEALTH DEPARTMENT and the DISTRICT COURT OF NEW SOUTH WALES
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 7; Fitzgerald JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	453/99
LOWER COURT JUDICIAL OFFICER:	Bell DCJ

COUNSEL:	Claimant: M.L.D. Einfield QC/G.L. Turner First Opponent: A A J Thompson Second Opponent: J A Ayling
SOLICITORS:	Claimant: Tzovaras Yandell First Opponent: Kenalco & Ritchie Second Opponent: Phillips Fox
CATCHWORDS:	Joinder, necessity, Part 7 r.8 District Court Rules - Part 8 r.8 Supreme Court Rules.
DECISION:	On Samad's summons: appeal allowed, the orders of Bell DCJ of 20 July 1999 be set aside, in lieu thereof the summons of the Council of the City of Fairfield to be joined be dismissed with costs, the respondents pay the costs of the appellant; On the Council's cross summons: summons be dismissed with costs.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40567/99

PRIESTLEY JA
MEAGHER JA
FITZGERALD JA

Friday 24 September 1999

Dr Abides SAMAD, Mary SAMAD and the BARBARA STREET CLINIC v THE DIRECTOR GENERAL OF THE NSW HEALTH DEPARTMENT and the DISTRICT COURT OF NEW SOUTH WALES

JOINDER - NECESSITY-PART 7 RULE 8, DISTRICT COURT RULES - PART 8 RULE 8 SUPREME COURT RULES

Pursuant to Regulation 149(f) of the Poisons and Therapeutic Goods Regulations 1994 the Director General of the NSW Health Department cancelled the licence of a methadone dispensing clinic. The company which operated the clinic sought to appeal the cancellation but were late in making an application.
Nevertheless the matter was set down for hearing in the District Court on 4 August 1999. On 12 July 1999 the Council of the City of Fairfield filed a notice of motion seeking to be joined as a party to proceedings. The trial judge granted leave for the Council to be joined and dismissed the appellant’s motion to have the Council’s application declared invalid with costs.
The Samads appealed against this finding on the grounds that the only basis for their original appeal was against the revocation of licence by the Director General. They had no issue with Fairfield Council, apart from the fact they opposed the Council’s application to be joined in proceedings.
The Samads also challenged the Council’s application for joinder under paragraph (b) of Rule 8(1) of the Supreme Court Rules in that it was not necessary for the Council to be joined as a party in order for matters to be fairly determined.
The Council then filed a cross-summons seeking a declaration that the District Court had no power to hear the appeal because it was filed out of time.
Held: As no legal rights of the Council would be affected by the outcome of proceedings, it was not necessary for it to be joined as a party. The escalating costs of litigation meant it was imperative for the court to avoid joining unnecessary parties or raising unnecessary issues in proceedings.
The cross-summons was dismissed as it had not been raised by the other Respondent parties.
ORDERS
1. Appeal allowed;
2. Orders of the trial judge be set aside;
3. Order of the summons for the Council of the City of Fairfield to be joined be dismissed with costs;
4. Order that other Respondents in proceedings pay Appellant’s costs;
5.Order that the Council’s cross-summons be dismissed with costs.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40567/99

PRIESTLEY JA
MEAGHER JA
FITZGERALD JA

Friday, 24 September 1999

DR Abides SAMAD, Mary SAMAD & THE BARBARA STREET CLINIC v THE DIRECTOR GENERAL OF THE NSW HEALTH DEPARTMENT & THE DISTRICT COURT OF NEW SOUTH WALES

1   PRIESTLEY and FITZGERALD JJA: The nature of these proceedings and the circumstances giving rise to the parties’ disputes are set out in the reasons for judgment of Meagher JA. The Court has already made the orders proposed by Meagher JA. 2   We agree with his Honour that the Council is not a necessary party to the District Court appeal and ought not to have been joined. We also agree with the legal steps in his Honour’s reasoning. 3   In our opinion, it would be unjust to permit the Council to be a party to that appeal. Courts must do their best to see that disputes are litigated as quickly and cheaply as possible. Unnecessary parties and/or issues add to the already high cost of litigation, and effectively make it uneconomic for many ordinary citizens to resort to the courts. 4   We are of opinion that the Council’s cross-summons should be dismissed because of the stage which had been reached in the District Court appeal and the nature of that proceeding and its subject matter. 5   At the time when the Council instituted its cross-summons, the District Court appeal had already been set down for hearing. The time needed by this Court to decide issues with respect to the District Court’s jurisdiction in that appeal which were raised by the Council but not relied on by any party to that appeal would have caused that date to be lost. We consider that unacceptable. 6   If the District Court considers the merits of the appeal and decides that the Director-General of the NSW Health Department should not have cancelled the licence, then we would expect that the cancellation would be withdrawn, if within the Director-General’s power to do so, even if the District Court decides that it is required to dismiss the appeal for a reason relating to its jurisdiction.
7   MEAGHER JA: A company called Barbara Street Clinic Pty Limited, apparently owned by the appellants, Dr Abdus Samad and Mary Samad, his wife, who are the present claimants, conducted a methadone-dispensing clinic at 34 Barbara Street, Fairfield, pursuant to a licence granted to the company by the Director-General of the New South Wales Health Department on 22 October 1996. The licence was cancelled by the Director General on 22 December 1998 pursuant to Regulation 149(f) of the Poisons and Therapeutic Goods Regulations 1994. The appellants sought to exercise a statutory right to appeal to the District Court conferred on them by clause 152(2) of the Regulations. Unfortunately for them, they were a little late in so doing. The Regulations prescribe that an appeal must be instituted within 14 days; in this case there was no appeal within 14 days. 8   On 11 July 1999 Sinclair ADCJ stayed the cancellation of the license up until 6 August 1999. On 11 June 1999 Sidis J fixed the matter for hearing on 4 August 1999. On 12 July 1999 the respondent Council filed a notice of motion seeking an order to be joined as a respondent to the appeal. It should be emphazised that it was not the respondent Director-General who sought the joinder of the Council. It was the Council which sought its own joinder. 9   To one’s surprise, Bell DCJ made the following orders:

1. That leave be granted to the Council to be added as a respondent to the appeal;
2. That the motion of Dr and Mrs Samad to declare the Council’s application invalid should be dismissed with costs.

10 I must say at once that his Honour’s decision seems to me extraordinary. The Samads now appeal against it, pursuant to leave granted. 11 The rule of court on which the Council relied was Part 7 rule 8 of the District Court Rules. (It is the equivalent of Part 8 rule 8 of the Supreme Court Rules, and has equivalents in almost all English countries). It says:

“Addition of Parties
8.(1) Where a person who is not a party to an action -
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that the matters in dispute in the action may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the action.
(2) A person shall not be added as a plaintiff unless he has consented in writing to be so added.”

12   The appeal of the appellants under the regulations is an appeal against the person who revoked the licence, viz., the Director General. It cannot be anything else. Dr and Mrs Samad have no complaint against anyone except the Director General. Dr and Mrs Samad seek no relief against the Council, the Director General seeks no relief against the Council. The Council has no proprietary right in the licence. The Council has no legal or equitable estate in the property involved. There is no lis between Samads and the Council. The order sought by the Samads, viz. that the cancellation of the licence be revoked, could have been decided in litigation restricted to the Samads and the Director General. 13   Certain further matters ought be noted. They include the following: (1) Dr and Mrs Samad did not consent to the Council’s application, but opposed it. (2) The addition of an extra opponent must obviously impose a heavy burden on an appellant in terms of time and money, and should be acceded to only with great reluctance. (3) The order made was to join the Council as a full party, not as amicus curiae. (4) If no joinder were made, there was nothing to stop the Council assisting the Director General in any way it wished to. (5) If Parliament had intended that the Council should have had power to close down premises such as the appellants’, no doubt it would have said so; if it did not, it must be assumed Parliament had intended Councils have no such power. 14 It is a matter of regret that all these, apparently elementary factors, avoided his Honour’s attention. 15 The Council sought to bring itself within paragraphs (b) of Rule 8(1). The onus, therefore, was on it to demonstrate that it was a “necessary” party so that all matters between the parties might be effectively and completely determined. One must therefore ask if the joinder of the Council was “necessary”. Counsel for the Council relied on the following seven points: · “The interests of the Director-General and the Council were in the main co-extensive; · The Director-General did not intend to call an officer of its own Department as a witness in the appeal; · The Director-General did not oppose the joinder; · The Council wished to pursue the concerns of its constituency on matters which might not be reasonably envisaged to be within the ambit of the interests of the Director-General; · It was significant that the Council had made the application because it represented the constituency of the municipality and the location, locale and environment (ie amenity) were all relevant factors for the Court to consider. · The Council’s interest was sufficiently clear-cut and strong to entitle it to become a respondent in the proceedings; · The Court’s decision operates as the decision of the Director-General (see Regulation 152(5)) and the Court wished to have the benefit of a witness to be called by the Council which the Director-General did not intend calling.

In deciding to exercise his discretion to join the Council as a party, his Honour was also mindful that it would be on terms inasmuch as the Council gave an undertaking that it would not seek any order for costs in the appeal.”

16   It can only be said, being charitable, that none of these points, nor the aggregate of them, demonstrate any “necessity” to join the Council.
17   There has long been a controversy whether a person who seeks to be joined in these circumstances must demonstrate that his legal rights will be affected by the result of the proceedings or only his commercial and business rights. The cases are referred to by Dawson J in Australian Tape Manufacturers Association Limited v Commonwealth of Australia [1990] ALR 641 at 644. Clearly, as that case demonstrates, the former view is prevalent. 18 In England in Byrne v Brown (1889) 22 QBD 657 Denman J said: “one defendant cannot bring another purely for his own convenience.” In Vandervill Trustees Limited v White [1971] AC 912 Viscount Dilhorne said at 935-6:

“I cannot construe the language of the rule as meaning that a party can be added whenever it is just or convenient to do so. That could have been simply stated if the rule were intended to mean that. However wide an interpretation is given, it must be an interpretation of the language used.”

19   In New South Wales, this Court came to a similar conclusion in Tweed Shire Council v Minister (1996) 92 LGERA 80. 20 His Honour, in reaching his own conclusion, seemed to rely on cases like Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Limited (1981) 149 CLR 27. These are, of course, entirely irrelevant. They are concerned with the question of the status of a plaintiff in an action to vindicate a public right; they say nothing about when a party may be joined as a defendant against a plaintiff’s wishes. 21   Finally, I might add that if the Council be a “necessary” party so are the neighbours of the premises, the clients of the clinic and the creditors of the Council. 22   For those reasons I am of the view that the appeal should be upheld. 23   However, there remains a cross-summons filed by the Council (not, be it noted, by the Director-General). It seeks a declaration that the District Court has no power to hear the Samads’ appeal and an order that it should be prohibited from doing so. I do not think we should entertain this application. If the basis of the cross-summons (i.e that the fact that the appeal is out of time renders it a nullity) be correct, it can be asserted as an argument for the respondent in the appeal. I might add that a multiplicity of factors would have to be considered before embracing the proposition that the appeal is a nullity, but that, as I say, is not our business. 24   I am of the view that the following orders should be made: 25   On the Samads’ Summons -

1. Order that the appeal be allowed;
2. Order that the orders of Bell DCJ of 20 July 1999 be set aside;
3. Order that in lieu thereof the summons of the Council of the City of Fairfield to be joined be dismissed with costs;
4. Order that the respondents (the Council and the Director-General) pay the costs of the appellant.

26   On the Council’s cross-summons -

1. Order that the summons be dismissed with costs