ST BARBARA MINES LTD -v- DEAN [2004] WASC 33

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 33
Case No:	CIV:2316/2003	Heard:	25 FEBRUARY 2004
Coram:	SIMMONDS J	Delivered:	5/03/04
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	ST BARBARA MINES LTD (ACN 009 165 066) ROBIN DEAN WESTGOLD RESOURCES NL
Catchwords:	Practice and procedure Joinder of parties Whether non-party should be joined as defendant Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 18 r 6(2), O 59 r 9
Case References:	Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216 Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52 WMC Resources Ltd v Southern Cross Pipelines Australia [2002] WASCA 308 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Morrell v Mercantile Mutual Insurance (Aust) Ltd (1999) 21 WAR 451 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Re IG Farbenindustrie AG Agreement [1944] 1 Ch 41 Rushby v Roberts [1983] 1 NSWLR 350 Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ST BARBARA MINES LTD -v- DEAN [2004] WASC 33 CORAM : SIMMONDS J HEARD : 25 FEBRUARY 2004 DELIVERED : 5 MARCH 2004 FILE NO/S : CIV 2316 of 2003 BETWEEN : ST BARBARA MINES LTD (ACN 009 165 066)

Plaintiff

AND

ROBIN DEAN

Defendant

Catchwords:

Practice and procedure - Joinder of parties - Whether non-party should be joined as defendant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 18 r 6(2), O 59 r 9

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr M D Howard

Defendant : No appearance

Applicant : Mr K J Martin QC & Mr C Ryder

Solicitors:

Plaintiff : Tottle Partners

Defendant : No appearance

Applicant : Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52
WMC Resources Ltd v Southern Cross Pipelines Australia [2002] WASCA 308

Case(s) also cited:

Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Morrell v Mercantile Mutual Insurance (Aust) Ltd (1999) 21 WAR 451
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Re IG Farbenindustrie AG Agreement [1944] 1 Ch 41
Rushby v Roberts [1983] 1 NSWLR 350
Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317

(Page 3)

1 SIMMONDS J: This application is primarily one for joinder as a defendant in proceedings that arise out of other proceedings that I will call for convenience, the underlying proceedings.

Background

2 The background to this application may be briefly stated. Westgold, the applicant, is the plaintiff in the underlying proceedings against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading St Barbara Mines Ltd v Dean

Details

AGLC: St Barbara Mines Ltd v Dean [2004] WASC 33
Case: [2004] WASC 33
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, St Barbara Mines Ltd applied for leave to join Westgold Resources NL as a defendant in proceedings against Robin Dean. The application arose out of the underlying proceedings, where Westgold was the plaintiff and St Barbara Mines Ltd and Robin Dean were defendants. Westgold sought to join as a defendant in the proceedings against Dean to enforce an indemnity agreement it had with Dean. St Barbara opposed the application, arguing that the court should not exercise its discretion to join Westgold as it would cause injustice and interfere with the ongoing proceedings. The court considered whether the discretion to join a party had been enlivened and, if so, whether the factors in favour of joinder outweighed those against it. The court found that the discretion had been enlivened and that the factors in favour of joinder outweighed those against it, particularly given the close connection between the proceedings and the underlying proceedings. The court also waived compliance with the requirement to confer with other parties before making the application. The court ordered that Westgold be joined as a second defendant in the proceedings against Dean, that the hearing of the plaintiff's summons for an interlocutory injunction be adjourned, and that the requirements of O 59 r 9 of the Rules of the Supreme Court be waived.
The final orders of the court were that Westgold Resources NL be added as a second defendant to the action, CIV 2316 of 2003; that the hearing of the plaintiff's chamber summons for an interlocutory injunction be adjourned to a special appointment before the trial Judge currently assigned to case manage action CIV 2427 of 2000 in the long causes list on a date to be fixed; that the requirements of O 59 r 9 of the Rules of the Supreme Court be waived; and that costs be in the cause.

Orders