St Barbara Mines Ltd v Dean
[2004] WASC 33
ST BARBARA MINES LTD -v- DEAN [2004] WASC 33
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 33 | |
| Case No: | CIV:2316/2003 | 25 FEBRUARY 2004 | |
| Coram: | SIMMONDS J | 5/03/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| 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
- 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 St Barbara and another. Mr Dean was St Barbara's Chief Executive Officer at certain material times and the third party in the underlying proceedings. The relief sought by Westgold was in respect of a purchase of shares that was made against the backdrop of certain alleged unlawful non-disclosures.
3 Westgold offered to indemnify Mr Dean in the third party action as consideration for his co-operation in the underlying proceedings. This arrangement prompted this action whereby St Barbara seeks to restrain Mr Dean from any such co-operation, in reliance on duties of confidence or their statutory analogues in the corporations legislation.
This application
4 Order 18 r 6(2) in its material part, par (b) of the Rules of the Supreme Court 1971 (WA), under which the principal relief in this application is sought, is expressed in very broad terms. The rule states:
"(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —
(a) …
(b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised."
- Understandably, Westgold, through Senior Counsel, in counsel's very helpful submissions, laid considerable emphasis on the broad terms of the language of the paragraph.
(Page 4)
5 However, as was pointed out by counsel for St Barbara, there exists a significant body of authority explaining how the paragraph ought to be approached by a Judge in my position. In that counsel's very helpful submission, the Court needs to be satisfied that its discretion has been enlivened and then it should weigh the relevant factors in the material before it.
6 In terms of whether the discretion is enlivened, it was agreed by both counsel that the basic modern approach had been set by the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52, at 55 - 56. That case recognises the "great variety of circumstances in which leave may be sought to join an additional party to an existing action". That case indicates that "one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard".
7 This language is reproduced in the decision of the Full Court in Homestyle Pty Ltd v City of Belmont [1999] WASCA 59, at [30], together with the test the Privy Council proffered as a "better way" of indicating the limits to the jurisdiction to join. Considerable emphasis was laid on that test, which has also been used in other Australian authority, including the most recent Full Court decision cited to me, WMC Resources Ltd v Southern Cross Pipelines Australia [2002] WASCA 308.
8 The test, enunciated in WMC (supra at [60]) which does not here refer to Pegang but appears to be taken from it, is "whether the appellant's rights against, or liabilities to, any party in the action, in respect of the subject matter of the litigation, will be directly affected by any order made in the proceedings".
9 In argument by counsel for St Barbara, particular emphasis was laid on the term "legal" which appears in the Pegang decision, but is not reproduced in the WMC decision as a qualifier in the phrase "the appellant's rights". Counsel for St Barbara laid considerable emphasis on the fact that the only "legal rights" that appeared to have been argued for by counsel for Westgold were a contract with Mr Dean, and an asserted legal right to communicate with a witness or potential witness in pending proceedings.
(Page 5)
10 As to the putative contract, there were significant issues to which counsel for St Barbara correctly drew my attention in respect of whether there had been the conclusion of a contract, and, if there had, whether it was or was not subject to a condition precedent or other condition that had been fulfilled.
11 As to the other legal right, counsel for St Barbara indicated, correctly in my view, that what had been relied upon by counsel for Westgold was the right to communicate with a witness. Counsel for St Barbara suggested this could not be appropriately characterised as a legal right, in view of difficulties with any enforcement, as well as the need to qualify any such right by reference to the very matters in issue in St Barbara's action against Mr Dean.
12 Counsel for St Barbara indicated that a legal right has to be identified before the discretion to join could be enlivened. Counsel for Westgold, by way of reply, rested on the broad general language of Pegang that preceded the reference to the test, as well as a suggested trend in the authorities of a greater liberality in permitting joinder. Any such trend, it was agreed, must, of course, recognise that limits have to be drawn to protect the integrity of the litigation process.
13 I have concluded, especially from the language in the WMC decision, that a broad approach needs to be adopted to the application of the Pegang test. To the extent that a "legal right" needs to be found, I would see it in the terms of counsel for Westgold's submissions as to communication with potential witnesses. This was particularly the case here, in view of the arrangements (whether contract or not, conditional or not) between Westgold and Mr Dean. Whether that right existed in this particular case, in view of the matters the subject of the injunction application, remains to be argued, in the further proceedings called for by that application.
14 Having considered my discretion to have been enlivened, I have considered, as well, the matters of:
1. the uncertainty that Mr Dean's information in the end is disclosable other than through the requirement to testify;
2. the necessity, perhaps, for the design of appropriate protective orders in the determination of whether such material short of testimony could be extracted by Westgold from Mr Dean in view of St Barbara's confidentiality concerns; and
(Page 6)
- 3. the fact that the arrangements between Westgold and Mr Dean may well not be a contract of any kind, let alone a conditional one.
15 Weighing all of these, against the suggested trend in the authorities, a trend which it appears to me has been made out, and taking account, as well, of the close connection between these proceedings and the underlying proceedings, I have determined that my discretion should be exercised in favour of joinder.
16 Westgold had indicated in the alternative that it would wish to be joined as intervener, but this position was not maintained at the hearing.
17 A further issue was raised with respect to O 59 r 9. This is a matter of some significance to this Court, as indicated in some previous decisions, including, most notably, that of Templeman J in Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216. I raised with counsel for both parties the matter of the apparent non-compliance with its requirements. The conferrals it calls for are of considerable significance to the efficient prosecution of judicial business. I noted, however, the reply by counsel for Westgold that there had been an exchange of correspondence between the parties preceding this application, some of which correspondence, regrettably, had not been included in the papers for the hearing. No suggestion was made that that correspondence represented compliance with the letter of the rule, but it was pressed upon me, and not objected to by counsel for the plaintiff, that the spirit of the rule had been respected. Although I cannot say I am completely satisfied on this point, I have concluded that it is appropriate to waive compliance with the rule and not to make any further order in respect of the matter.
18 It follows from my dispositions as indicated here that I make the following orders:
1. Westgold Resources NL be added as a second defendant to the action, CIV 2316 of 2003;
2. 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;
3. the requirements of O 59 r 9 of the Rules of the Supreme Court be waived; and
4. that costs be in the cause.
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