Southern Equities Corp Ltd & Ors v Bond & Ors No. Scgrg-96-113 Judgment No. S90

SOUTHERN EQUITIES CORPORATION LIMITED & ORS V ALAN BOND & ORS

[1999] SASC 90

JUDGE BURLEY. These proceedings were issued on 2 January 1996 by the filing of a summons and a statement of claim. The plaintiffs did not immediately proceed to serve the defendants but sought from time to time, and obtained, an order for the renewal of the summons. The last of the renewals expired on 6 May 1997. On 2 May 1997 the plaintiffs’ solicitors filed at Court a document entitled “Amended Summons” which on its front page bore the following endorsement:
“Amended pursuant to Rule 53 on the 2nd day of May 1997.”
The endorsement was followed by the signature of the plaintiffs’ solicitor. That document was sealed by the Registrar, the original was placed on file and the sealed duplicate of the original was given to the plaintiffs’ solicitors. One of the defendants originally included in the summons issued on 2 January 1996 was not included in the amended summons, but two additional names were included in the amended summons, including John Bryan Bond (Mr Bond) who has been referred to as the eighth defendant. It is common ground that no order for the joinder of Mr Bond has been made at any stage.
On 5 May 1997 the plaintiffs’ solicitors filed at Court an amended statement of claim which also bore the endorsement “Amended pursuant to Rule 53 on the 5th day of May 1997”. The amended summons and the amended statement of claim were served on Mr Bond on 5 May 1997. The amended statement of claim is directed to setting out the plaintiffs’ claim against the defendants as named in the amended summons filed on 2 May 1997.
By application dated 3 December 1997, which was subsequently amended, Mr Bond sought, among other things, a declaration that he had not been joined or served as a defendant. That application came before me on 26 November 1998 when argument was heard. On that occasion I gave two rulings: first, that Mr Bond had not been joined as the eighth defendant in the proceedings in accordance with the requirements of the Supreme Court Rules; and, second, that it was open to the plaintiffs to apply for an order, pursuant to SCR 3.04(c), validating the proceeding for the amended summons. I gave reasons for each of those two rulings, which I set out below. They form part of the background to the application the subject of these reasons, namely an application by the plaintiff of an order validating either the amended summons or the proceedings against Mr Bond. The reasons are as follows:
“RELATING TO P.277 OF TRANSCRIPT
HIS HONOUR: I have before me an amended application originally dated 3 December 1997. The amended application is Document 102 on the Court file, and it seeks the following orders:
‘1A.. A declaration of the eighth defendant has not been joined or served as a defendant.
1B... That the Statement of Claim be therefore struck out as against him.’

The essence of the application involves a consideration of the provisions of Supreme Court Rule 27.
It is common ground that the summons by which these proceedings were commenced was filed on 2 January 1996, and at that time the 8th defendant, John Bryan Bond, was not named as a defendant.
On 2 May 1997, an amended summons was lodged at the Registry, accepted for lodgement, and sealed by the Registry staff on behalf of the Registrar. The amended summons included John Bond as the 8th defendant in the proceedings, in addition to a company being named as the 9th defendant. The summons was endorsed on its front page as follows:
‘Amended pursuant to Rule 53 on the 2nd day of May 1997’.

It is common ground that no order giving leave to the plaintiffs to join John Bond as a defendant in these proceedings has been obtained at any stage. The plaintiffs do not rely upon Rule 53 to support the joinder of Mr Bond as the 8th defendant, but say that Rule 27.01(a) enables the joinder of an additional defendant after the issue of the proceedings where none of the defendants has been served with the proceedings. I have been informed from the Bar table, and the 8th defendant accepts, that, as at 2 May, none of the other defendants had been served with these proceedings.
Rule 27.01(a) is as follows:
‘Two or more persons may be joined as plaintiffs or defendants in any proceedings:
(a) where:
(i).... if separate proceedings were brought by or against either of them a common question of law or fact would arise in all the proceedings; or
(ii)... all rights to relief claimed in the proceedings, whether they are joint, several or alternative, are in respect of, or arise out of, the same transaction or series of transactions ..’

It has been contended by the 8th defendant that none of the Rules enables a plaintiff to join a defendant after the issue of the proceedings without the leave of the Court, and reference has been made during the course of argument to various provisions of Rule 27 which provide for the joinder of additional parties to the proceedings with the leave of the Court.
It seems to me that the principal argument against the contention of the plaintiffs that there has been a valid joinder of the 8th defendant in these proceedings pursuant to Rule 27.01(a) is that the Rule, taken as a whole, provides for a number of circumstances where leave is required to be sought, and it is at least implicit, if not explicit, in some or all of those Rules, that the proceedings have already been commenced. Put another way, the overall structure of the Rule points towards a construction that leave to join additional parties after issue of the proceedings is required.
It was accepted by the plaintiffs that there is no specific provision, nor any known authority, which was to the effect that if a plaintiff sought joinder of an additional party to proceedings which had already been commenced but had not been served, the plaintiff was permitted to join the additional party without seeking the leave of the court to do so.
In my view, it would be an inappropriate extension of the clear provisions of Rule 27 to say that, either as a matter of policy, or that it was implicit in the relevant rule, that a joinder of an additional party after the issue of the proceedings was permitted by the provisions of Rule 27.01(a), where the plaintiffs had not proceeded to serve the proceedings.
During the course of argument, reference was made to a number of the provisions of Rule 27, which helped to place the effect of Rule 27.01 in its proper context, and it is not necessary for me to deal in any detail with what was said by counsel in relation to the provisions.
I think it would be a strained interpretation of the provision relied upon by the plaintiffs to bring about a result that led to the conclusion that the 8th defendant had been properly joined in these proceedings.
For those brief reasons, I hold that the 8th defendant has not been joined in these proceedings in accordance with the requirements of the Supreme Court Rules.
I go no further at this stage, because the actual result of the application depends upon what further submissions might be put to me by counsel in relation to the consequences of such a conclusion on my part.”
“RELATING TO P.296 OF TRANSCRIPT
HIS HONOUR: These reasons may be taken as a continuation of the initial reasons given to me earlier today on the question of SCR 27.01.
Having heard submissions from the parties on a point raised by me in relation to whether or not there was power to validate either a defective step proceeding, or attempt at service, I have come to the conclusion that Rule 3.04(c) may be invoked by the plaintiffs in an attempt to rectify the defect in the proceedings caused by the failure of the plaintiffs to obtain leave to join John Bond as a defendant in these proceedings.
Rule 3.04(c) is as follows:
‘The court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:
(c) validate any proceeding or document which is invalid or informal.’
I have come to the conclusion referred to above by comparing the provisions of Rule 3.04 and the provisions of Rule 3.01, the relevant parts of which are as follows:
‘3.01......... Subject to Rule 2 except where the court otherwise orders, no breach of or non-compliance with a rule ... shall cause any proceedings to abate or be dismissed out of the court.’

I note in Rule 3.01 reference is made to breach of the Rule or non-compliance with a Rule, which is to be contrasted with Rule 3.05, which refers only to non-compliance.
In my view, the failure of the plaintiffs to obtain leave to join John Bond as a defendant constitutes a breach of the Rule as opposed to a non-compliance.
Within the general provisions of Rule 3, there occurs Rule 3.04, which sets out the general powers of the Court. I have already referred to the relevant part of that Rule. It seems to me that, when 3.01 and 3.04 are taken together, it is open to the Court to exercise any of the powers in Rule 3.04 which are applicable to the circumstances of the particular case.
However, the argument does not end there, because it was contended by the 8th defendant that the ability to validate any proceeding or document which is invalid or informal does not embrace a power to cure the breach of the Rules by the defendants in failing to obtain leave to join the 8th defendant.
It was pointed out that the word ‘proceeding’, in the singular, was used in subparagraph (c), and that in Rule 5 there is the definition of the word ‘proceedings’ as meaning an action, suit or other such claim.
It was suggested by Mr Harris that ‘proceeding’ must mean something other than an action or suit, etc. I do not agree with that submission. I think that, in legal parlance, ‘proceeding’ and ‘proceedings’ are sometimes used synonymously, and I think this is just such a case.
It was also suggested by Mr Whitington that it was open to the Court to validate a document which was invalid or informal, and, in this case, the document would be the summons which would be the amended summons which referred to John Bond as the 8th defendant.
In my view, taking either the approach of an order validating the proceedings as between the plaintiffs and the defendant John Bond, or making an order to cure the defect in the summons, that is validating an otherwise invalid document, both achieve the same effect. If the document is validated by order, then the service of it upon John Bond is, by virtue of the validation, good and effective service.
For the above reasons, I hold that, in the circumstances of this case, it is open to the Court, as a matter of discretion, to consider whether or not an order should be made validating either or both the proceedings between the plaintiffs and the defendant John Bond, or validating the amended summons, insofar as that summons constitutes a summons between the plaintiffs and the defendant John Bond.
I will hear the parties as to whether or not the discretion should be exercised in favour of or against the plaintiffs.”

The plaintiffs’ application for a validation order was supported by the affidavit of Mr Hoffmann sworn on 8 December 1998. He explained that, prior to the issue of the amended summons and statement of claim, he had formed the view that, because none of the defendants had been served with the proceedings, it was open to him under the provisions of SCR 27.01(a) to file with the Court the amended summons naming Mr Bond as a defendant without first obtaining the leave of the Court to do so. It appears that the endorsement relating to Rule 53 was included on the amended summons and amended statement of claim to reflect the fact that the heading of the amended summons and of the amended statement of claim named Mr Bond as a defendant and, in addition, the amended statement of claim pleaded the plaintiffs’ claim against Mr Bond. Had he realized that leave was necessary to join an additional defendant, he would have made an application pursuant to SCR 27.01(b) or SCR 27.03.
Between 5 May 1997 and 19 August 1998 Mr Bond took a number of steps in the action which are set out in paragraphs 8 to 25 of Mr Hoffmann’s affidavit. Those paragraphs are as follows:-
“8..... On 14 May 1997, John Bond appeared by his Counsel Mr Harris, instructed by Grope Hamilton, before his Honour Justice Debelle and:
8.1... sought orders revoking the order for confidentiality of these proceedings made 21 February 1997;
8.2... made an oral application to inspect affidavit material filed by the Liquidator in support of the confidentiality orders;
8.3... sought an order varying the time within which Mr John Bond was to file a defence pursuant to Rule 3.04(d) extending the time by a month;
His Honour Justice Debelle made orders:
8.4... extending the time for John Bond to file his appearance to 16 June 1997;
8.5... adjourned the application until 2.15pm on Thursday, 15 May 1997 to enable John Bond to bring an application supported by affidavit evidence in respect of confidential affidavits on the Court file in this matter. By letter dated 14 May 1997 Grope Hamilton advised that John Bond’s application to inspect confidential affidavits would not be pursued at the hearing at 2.15pm on 15 May 1997 and this hearing was vacated.
9...... On 29 May 1997 John Bond filed an application for orders, inter alia, that:
9.1... the time within which to file his defence be extended until further order;
9.2... the time within which he may file a notice pursuant to Rule 46.20 be extended for six weeks;
9.3... that the plaintiffs respond to any Rule 46.20 notice filed by John Bond within six weeks of service.
10.... On 2 June 1997, his Honour Judge Bowen Pain made orders, inter alia, extending the time within which the defendants including John Bond were to file their defence until further order.
11.... Commencing on 12 June 1997, John Bond pursued a request for production of documents pursuant to Rule 59.02 as follows:
11.1. by letter dated 12 June 1997 from Grope Hamilton to Fisher Jeffries, John Bond requested pursuant to Rule 59.02 production of documents by the plaintiffs referred to in the statement of claim;
11.2. by letter dated 28 July 1997, Grope Hamilton made a further request pursuant to Rule 59.02 for documents referred to in paragraph 34 of the statement of claim;
11.3. on 29 July 1997 Fisher Jeffries produced copies of the documents requested;
11.4. by letter dated 31 July 1997 from Grope Hamilton to Fisher Jeffries, Grope Hamilton raised a number of queries concerning the documents produced pursuant to Rule 59.02;
11.5. by letter dated 1 August 1997, Fisher Jeffries responded to those queries and the request in relation to paragraph 34 of the statement of claim.
Now shown to me as a bundle and marked with the letters “MCJH2” are true copies of this correspondence;
12.... Commencing on 17 June 1997 John Bond pursued a request pursuant to Rule 100.01 for security for costs as follows:
12.1 by letter dated 17 June 1997 from Grope Hamilton to Fisher Jeffries, John Bond foreshadowed an application for security for costs pursuant to Rule 100.01(a), (d) and/or (e). In anticipation of such an application, John Bond requested the plaintiffs provide information as to their financial position.
12.2. Following a further exchange of correspondence, on 10 October 1997 Fisher Jeffries informed Grope Hamilton that their concerns as to the financial position of the plaintiffs and their capacity to meet any order as to costs was ill founded.
In this regard now shown to me as a bundle marked ‘MCJH3’ are true copies of this correspondence.
13.... On 24 October 1997, Mr Harris appeared at the management conference before Justice Debelle for Mr John Bond. In the course of that hearing, Mr Harris sought the provision of a list of confidential affidavits filed in support of various applications for extensions of the summons and for orders as to confidentiality.
14.... On 25 November 1997, John Bond filed and served an application supported by an affidavit of Mr Hamilton sworn that day seeking orders that confidentiality be lifted or otherwise varied.
15.... On 26 November 1997 John Bond formally filed an appearance in these proceedings, albeit he had appeared as deposed above by his Counsel on a number of occasions subsequent to his being served with the proceedings on 5 May 1997.
16.... On 27 November 1997, John Bond filed an application for an order striking out the statement of claim pursuant to Rule 46.18 of the Supreme Court Rules. This application was supported by an affidavit of Mr Hamilton sworn 27 November 1997.
Non-Joinder Application
17.... On 2 December 1997, Mr Hamilton appeared as counsel for John Bond at the Management Conference before his Honour Justice Debelle. At the time Mr Hamilton foreshadowed an application to amend the application to strike out the statement of claim to include an order in relation to the validity of Mr John Bond being joined as a defendant. At the hearing, his Honour Justice Debelle fixed 2 February 1998 for argument on the defendant’s application to strike out the statement of claim and other applications and directed that John Bond’s outline of submissions be filed by 19 January 1998.
18.... By application filed 3 December 1997 the defendant John Bond sought, pursuant to Rule 46.18, inter alia, a declaration that he had not been validly joined. This application was supported by an affidavit sworn 3 December 1997 by Mr Hamilton.
Steps Taken Subsequent to 3 December 1997
19.... On 15 January 1998, John Bond filed an application initially returnable 16 January 1998, that his Honour Justice Debelle disqualify himself from presiding over the pre-trial management and the hearing of the trial in these proceedings. This application was supported by an affidavit of Nicholas Baldock sworn 15 January 1998.
20.... On 16 January 1998, the disqualification application and issues concerning confidentiality were considered at the Management Conference before his Honour Justice Debelle and stood over until 23 January 1998. On 23 January 1998, his Honour made orders vacating the hearing on 2 February 1998 for John Bond’s strike out and joinder applications and listed those applications together with the applications of John Bond in relation to confidentiality and disqualification for hearing on 26 February 1998.
21.... For the purpose of hearing on 26 February 1998 of John Bond’s application for access to confidential documents on the Court file, inter alia, in Action No. 113 of 1996 a written outline of submissions was filed and served a true copy of which is now shown to me and marked “MCJH4”.
22.... John Bond attended hearings largely in relation to issues of confidentiality in Action No. 113 of 1996 and the winding up Action No 92516 of 1993 on 26 February 1998, 12 March 1998 and 26 March 1998.
23.... On 26 March 1998, John Bond’s application for the disqualification of his Honour Justice Debelle was dismissed.
Amended Application
24.... On 23 July 1998, an amended application seeking a declaration that John Bond has not been joined or served as a defendant was filed and served together with an amended application striking out the amended statement of claim as against John Bond. Submissions in support of those applications were filed on 14 July 1998.
Steps Subsequent to Amended Application
25.... On 19 August 1998, John Bond filed and served an application seeking orders that the Liquidator file an affidavit in relation to steps taken to obtain the lifting of orders for confidentiality made by foreign courts to the extent necessary the Liquidator be ordered to expedite those steps. This application was supported by an affidavit of Mr Hamilton sworn on 19 August 1998.”
In opposing the plaintiffs’ application, Mr Bond relied upon the affidavit of Mr Hamilton sworn on 16 December 1998. Mr Hamilton said that after the proceedings had been served upon Mr Bond he was uncertain as to how Mr Bond had been joined as a defendant in the proceedings. Although the amended summons was endorsed as having been amended pursuant to Rule 53, he did not understand that that rule allowed joinder of parties by way of amendment. In addition, there was no other endorsement on the summons evidencing joinder of Mr Bond as a defendant by order of the Court.

Mr Hamilton was aware of a series of confidentiality orders that were in place in respect of the proceedings. He formed the view “that it was possible that the existence of an application and order for joinder would become known once the confidentiality orders were lifted and the entire Court file could be inspected”.
Mr Hamilton had arranged for a clerk in the employee of his firm to inspect the Court file but that did not reveal anything regarding the joinder of Mr Bond as a defendant because of the confidentiality orders affecting the contents of the Court file. He said that it was not until 26 November 1998, at a Court hearing, that he learnt that the plaintiffs had purported to join Mr Bond as a defendant pursuant to SCR 27.01(a).
In a letter dated 1 December 1997, Mr Hamilton informed the plaintiffs’ solicitors of his view that it appeared that the plaintiffs had proceeded on the assumption that they were entitled to join a party by way of amendment pursuant to SCR 53.01(1)(a). He informed the plaintiffs’ solicitors that he did not consider that to be a permissible use of the rule and accordingly did not consider Mr Bond to have been validly joined as a defendant. He received no response which corrected his understanding that the joinder was based on the provisions of SCR 53.01(1)(a).
Mr Whitington QC, counsel for the plaintiffs, contended that a validation order should be made because, had an application for joinder been made in May 1997 it would have been granted, the defendants have in any event taken a number of steps in the action (as outlined in Mr Hoffmann’s affidavit) notwithstanding Mr Hamilton’s suspicion that Mr Bond may not have been properly joined as a defendant, and the granting of a validation order would not prejudice Mr Bond.
Mr Harris, counsel for Mr Bond, contended that there is no material before the Court to indicate that an order for joinder would have been made had the plaintiffs applied for such an order in May 1997. He referred in particular to the provisions of SCR 27.05 and SCR 27.06 and submitted that the requirements of those rules had not been met by the plaintiffs. He further submitted that most of the steps taken by Mr Bond after May 1997 in the action could be characterised as being, at least in part, investigative of the question of whether or not he had properly been joined as a defendant in the proceedings. Mr Harris also argued that Mr Bond would be prejudiced if a validation order were now made because it would operate from May 1997 and in the meantime, one of the possible causes of action pursued by the plaintiffs against Mr Bond has become statute-barred.
I shall deal with the question of prejudice to Mr Bond first. I do not accept that, even if between May 1997 and December 1998 (when this application was heard) a cause of action became statute-barred because of the expiry of the limitation period, prejudice to Mr Bond has occurred such that the application for a validation order should be refused. In a sense, such a submission begs the question as to whether or not the validation order should be made.
Depending upon whether or not the defendant is named in the summons when it is issued or is afterwards joined, the issue or service of the summons must be validly achieved before the expiry of the period of limitation in order to avoid a defence that a cause of action is statute-barred.
An action will be statute-barred if, in the circumstances of this case, a defendant who has been additionally joined is not validly served before the expiration of the period of limitation. Thus, the effect of the Rules of Court have a bearing upon whether or not an action is statute-barred. For example, if a summons is regularly issued before the expiry of the limitation period, the action is not statute-barred. If, in the case of a defendant who is joined after the original issue of the proceedings, that defendant is not served with the proceedings before the expiry of the period of limitation, the action is statute-barred.
Where the original process has been properly taken within the Rules of Court, no problem arises if the issue or service, as the case may be, is effected prior to the expiry of the limitation period. However, where the original process is invalidly taken, a period of limitation may expire unless there is a provision in the Rules which enables validation of an otherwise invalid act. If a rule allows for validation of the previously defective step, then, for the purposes of ascertaining whether or not a limitation period has expired before issue or service of the relevant proceeding, the operation of the validation rule must be taken into account.
The process is similar to the Rule of Court which permits an amendment to be included in a pleading which raises a new cause of action after the expiry of the relevant limitation period, provided that the additional cause of action arises out of the same substratum of facts contained in the original pleading (SCR 53.03(c)).
If a defence that a cause of action is statute-barred is relied upon, it can only be made out if either issue or service, as the case may be, takes place after the expiry of the limitation period and to that extent the defence is dependent upon what the Rules say about the validity of issue or service. In most cases it is a simple question because the issue and service of proceedings has been validly effected. However, if there has been a material defect in issue or service of the proceedings, the validation rule must be taken into account on the question of whether or not a cause of action is statute-barred because, by the inclusion of the validation power, the Rules provide that an act which, when it was performed, was invalid, may subsequently be rendered valid. If that is a correct analysis, it cannot be said that the expiry of a period of limitation is a material prejudice, because, by operation of the Rules of Court, a limitation point never arises.
There is an additional reason why, in the circumstances of this case, it cannot be said that any prejudice accruing to Mr Bond as a result of being precluded, by a validation order, from relying upon a defence that the cause of action is statute-barred, requires the refusal of the application for a validation order. It has always been open to Mr Bond, since his solicitor first suspected that he may not have been properly joined, to raise with the Court the inability to search the file because of the confidentiality orders and ask for an exemption, if only to the extent of seeing whether or not there had ever been an order made giving leave to the plaintiffs to join Mr Bond as a defendant. It would have been a relatively simple procedure because the existence or otherwise of an order for the joinder of Mr Bond as a defendant could be readily ascertained without in any way doing violence to the confidentiality that was otherwise required to be maintained in respect of the file contents. Consequently, I do not think that the fact that a limitation period may have expired since May 1997 requires, either by itself or in conjunction with any other point of opposition pursued by Mr Bond, that the application be refused.
This is so even though Mr Hamilton was not aware until late 1998 that the plaintiffs relied upon SCR 27.01(a) as the basis for their joinder of Mr Bond as a defendant. The original doubt about whether or not Mr Bond had been properly joined as a defendant arose from Mr Hamilton’s perusal of the endorsement on the amended summons which referred only to SCR 53. The course then open to Mr Bond through his solicitor was to ask for the Court’s permission to carry out a limited inspection of the file in order to ascertain whether or not an order for joinder had been made. It was equally possible for Mr Bond’s solicitor to write to the plaintiffs’ solicitors specifically asking whether or not the plaintiffs’ solicitors had obtained an order for the joinder of Mr Bond before including his name in the heading to the amended summons. If that had been done promptly two things might have occurred: first, the plaintiffs may have acknowledged that they should have obtained an order for leave to join Mr Bond and made an application to the Court; alternatively, the plaintiffs’ solicitors may have insisted that Mr Bond had been joined properly, in which event it was then open to Mr Bond to apply to the Court for an order setting aside the purported service of the documents upon him. If the question of the validity of the joinder of Mr Bond as a defendant had been investigated and been made the subject of an application either by the plaintiffs or Mr Bond, no question of the expiry of the limitation period would have arisen.
For the above reasons I do not consider that Mr Bond has established any material prejudice to him to the extent that the limitation period may have expired since May 1997.
The next matter to be considered is Mr Harris’ submission that there was no material presently before the Court which could satisfy me that, had the plaintiffs applied for an order giving them leave to join Mr Bond as a defendant to the proceedings prior to May 1997, that such an order would have been made by the Court. There are two aspects to this submission. The first is that, according to Mr Harris, the pleading in the amended statement of claim against Mr Bond is fundamentally inadequate and that because of the inadequacy, the Court would not have given leave to the plaintiffs to join Mr Bond as a defendant.
I must first consider whether or not the Court would have granted the application based on the proposed pleading of what is now the amended statement of claim. I taken into account the submissions of Mr Harris that the document is fundamentally flawed. However, I do not think that this would necessarily have been apparent to the Court on an ex parte application for leave to join Mr Bond as a defendant based on the amended statement of claim which is now before the Court. On such an ex parte application the Court would look at the proposed pleading insofar as it relates to the persons sought to be joined as a defendant, but that does not involve a minute critical evaluation of its sufficiency. If it has the appearance of being a maintainable claim against the proposed defendant, everything else being equal, leave to join the additional defendant would be granted. On my perusal of the amended statement of claim, I think that the plaintiffs have established that on an ex parte application for leave to join Mr Bond as an additional defendant, the Court would have concluded that the statement of claim was sufficient.
The second aspect is that the plaintiffs have not established that they could have complied with the requirements of SCR 27.06 on the amendment application. That rule provides for the procedure to be followed on an application for joinder pursuant to Rule 27.05. It requires that the application be supported by an affidavit setting out “the precise grounds and terms upon which joinder is sought” and that the application and supporting affidavit are to be served on all parties. In my view, the plaintiffs have established that they could have complied with the requirements of SCR 27.06 apart from the requirement that the application be served upon the defendants. The affidavit of Mr Hoffmann, by paragraph 3, reveals that he and Mr Karas, a solicitor within the firm who assisted him in relation to this matter, reviewed and considered the circumstances in which among others Mr Bond could be joined as a defendant in these proceedings. The statement of claim sets out the basis upon which the plaintiffs propose to proceed against Mr Bond if given leave to join him as a defendant. Thus, I think that SCR 27.06(a) could have been complied with.
As to the requirement that the application be served on the other defendants , the plaintiffs could have overcome this deficiency by resorting to other rules to support their application.. The plaintiffs had two other choices: SCR 27.01(b) and SCR 27.03.
Irrespective of what rule the plaintiffs relied upon, had they made an application to join Mr Bond as a defendant prior to May 1997, they would have been required to satisfy the Court that it was appropriate to deal with the application without at least giving notice to the other defendants of the fact of its existence. In my view, given the nature of the proceedings and the context in which they were brought, I have no doubt that the Court, prior to May 1997 would have permitted the plaintiffs to pursue an application for the joinder of Mr Bond as a defendant in the proceedings without being required to serve the application on or give notice of the application to the other defendants.
There is nothing else to suggest that the Court would have refused the plaintiffs’ application had it been made prior to May 1997. Consequently, I proceed on the basis that had the plaintiffs applied prior to May 1997 for leave to join Mr Bond as an additional defendant, such leave would have been granted.
It is clear from the history of Mr Bond’s participation in these proceedings since the papers were served on him in May 1997, that he has had as free a hand as any of the other defendants who have been properly joined as defendants in the action. Any restriction to which he has been subject has been a restriction which has applied equally to all defendants.
In all of the circumstances it seems to me that a validation order should be made in favour of the plaintiffs. In modern litigation, a party to proceedings should not be able to use the technicalities which arise from the Rules in order to defeat a claim and, if a validation order were refused on this application, it is possible that Mr Bond might be able to rely upon the defence that one or more of the causes of action pursued against him are statute-barred. That result is out of all proportion to any detriment that Mr Bond may have been subject to as a result of the purported joinder of him as a defendant in breach of the Rules.
There will be an order that the amended summons and amended statement of claim (respectively Documents 42 and 43 on the Court file) be validated insofar as they reflect the joinder of John Bryan Bond as a defendant in the proceedings. There will be a further order that the service of the proceedings upon Mr Bond on the 5th day of May 1997 be validated as effective service of the within proceedings upon him.
I will hear counsel as to costs.

[1999] SASC 90

15 March 1999