Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason
[2011] NSWSC 1457
•23 September 2011
Supreme Court
New South Wales
Medium Neutral Citation: Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason & Ors [2011] NSWSC 1457 Hearing dates: 23 September 2011 Decision date: 23 September 2011 Jurisdiction: Equity Division Before: Black J Decision: Grant leave to join second plaintiff in proceedings. Decline to grant leave to reopen case to call additional witness not present in Court or under subpoena
Catchwords: PRACTICE & PROCEDURE - joinder of necessary or proper party to facilitate just, quick and cheap resolution of the proceedings - reopening of case to call additional witness which would necessitate adjournment Legislation Cited: Civil Procedure Act ss 56-58 Category: Interlocutory applications Parties: Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt and Elizabeth Occelshaw (Plaintiffs)
Lindsey Jane Dyason (First Defendant)
Arthur Linden Dyason (Second Defendant)Representation: Counsel:
B Skinner (Plaintiffs)
No appearance (First Defendant)
The Second Defendant appeared in person
Solicitors:
Goldrick Farrell Mullan (Plaintiffs)
No appearance (First Defendant)
The Second Defendant appeared in person
File Number(s): 10/324887
Judgment
Application for joinder of additional plaintiff
The plaintiff Mr Pascoe applies to join Ms Elizabeth Russell, formerly Elizabeth Occleshaw, as an additional plaintiff in these proceedings. The basis of that joinder is that currently Ms Russell remains on the register as joint holder with Mr Pascoe in respect of an interest in the property in issue in these proceedings. Mr Pascoe is currently the trustee for the bankrupt estate of Mr Arthur Dyson and Ms Occleshaw is a former trustee for that bankrupt estate. I have been advised from the bar table that Ms Russell consents to her joinder as an additional plaintiff.
I am satisfied that Ms Russell is a proper or necessary party to the proceedings for the purposes of rule 6.24 of the Uniform Civil Procedure Rules and that it is in the interests of all parties and in the interests of the administration of justice that she be joined as a party. In particular, I consider that it would be wholly inconsistent with the objectives identified in sections 56-58 of the Civil Procedure Act if difficulties were to arise in achieving a just, cheap and quick resolution of the matters in issue because of the absence of a proper party to the proceedings, which might in a worse case require a further hearing in the proceedings or the commencement of new proceedings after the parties have already invested significant resources in this hearing and these proceedings.
Accordingly, I grant leave to the plaintiff to join Ms Russell as second plaintiff in the proceedings and I order that leave take effect nunc pro tunc from the date of commencement of these proceedings.
I should add that Mr Arthur Dyason indicates that if Ms Russell is joined as party to the proceedings, he would seek to have her give evidence in the proceedings. I will hear Mr Dyason in respect of any application to reopen his case to lead evidence from Ms Occleshaw.
Application to reopen Mr Dyason's case to call Ms Russell to give evidence
Application is made by Mr Dyason to reopen his case to call Ms Russell to give evidence in the proceedings. Ms Russell is not under subpoena to give evidence in the proceedings and is not present in Court, so this application would necessarily require an adjournment of the proceedings. The application is consequential upon an order that I have made joining Ms Russell as the second plaintiff in the proceedings on the basis that she is a proper or necessary party to the proceedings for the purposes of rule 6.24 of the Uniform Civil Procedure Rules. That order was made in order to regularise an issue which might otherwise have given rise to unnecessary legal difficulty by reason of the absence of a proper party and having regard to the objectives identified in sections 56-58 of the Civil Procedure Act.
Mr Dyason identifies the matters as to which Ms Russell could give evidence as including the circumstances in which his original Statement of Affairs was executed and he contends that he dealt with Ms Russell in that regard rather than with Mr Pascoe.
I do not consider that the joinder of Ms Russell as party to the proceedings, given the basis in which she has been joined, has any impact on the content of the evidence in the proceedings. Mr Pascoe has led evidence by affidavit annexing Mr Dyason's Statement of Affairs. It was clear before these proceedings were listed for hearing that Ms Russell was not being called by Mr Pascoe as a witness in the proceedings. That position has not changed. To the extent that Mr Dyason wished to contest the content of that Statement of Affairs or lead evidence from Ms Russell in respect of it, that evidence was equally necessary before Ms Russell's joinder as after it. If Mr Dyason sought to lead such evidence, it was open to him to do so either by obtaining that evidence voluntarily from Ms Russell or, alternatively, if necessary, by issuing a subpoena for her attendance.
I am conscious that Mr Dyason is representing himself and labours under disadvantages and difficulties which face any person in that position. Having said that, I am also conscious of the objectives of sections 56-58 of the Civil Procedure Act and for the need for the Court to give effect to the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings. In particular, the Court is obliged by the Civil Procedure Act to have regard to not only the just determination of the proceedings but also the efficient disposal of the Court's business, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings in the court at an affordable cost.
I do not in these circumstances consider that the joinder of Ms Russell as second plaintiff in the proceedings has made any substantive difference to the desirability or otherwise of her being called as a witness in the proceedings. I do not consider that it would be in the interests of the just, quick and cheap resolution of the real issues in the proceedings or consistent with sections 56-58 of the Civil Procedure Act to grant leave to Mr Dyason to reopen his case and to adjourn the proceedings for potentially a significant period in order to allow him to seek to negotiate with Ms Russell the terms on which she would give evidence or otherwise to issue a subpoena. I note that that would have adverse impacts by way of costs, not only on the parties to these proceedings, but also on the community to the extent that time which would otherwise have been available to other litigants for the determination of their matters would be lost.
Accordingly, I decline to grant leave to Mr Dyason to reopen his case to call Ms Russell as a witness in the proceedings.
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Decision last updated: 05 December 2011
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