Wilson Pastoral International Pty Ltd v George Street Steel Pty Ltd (No 2) - [2020] SASCFC 126

Supreme Court of South Australia
(Full Court: Application)
WILSON PASTORAL INTERNATIONAL PTY LTD v GEORGE STREET STEEL PTY LTD (No 2)
[2020] SASCFC 126
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Auxiliary Justice Tilmouth)
22 December 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES
This is an application brought by the appellant seeking orders to set aside certain orders made by the Full Court on 19 June 2020 to:
1. Allow the cross appeal by the respondent to the extent of giving judgment in its favour in District Court Action No. 349 of 2016 in the sum of $105,801.68 together with pre-judgment interest of $35,344.87 against Wilson Pastoral Australia Pty Ltd (WPA) and the appellant jointly and severally; and
2. Vary the costs order made by the trial Judge on 28 March 2019 by ordering that WPA and the appellant be jointly and severally responsible for the payment of the respondent’s costs on a party/party basis up to 30 May 2018 and thereafter on an indemnity basis and by making no order as to costs in respect of Mr and Mrs Wilson.
The appellant contends that as a consequence of WPA not being named on the Notice of Cross Appeal there was procedural and substantial irregularity, in both instances serving to vitiate the orders of the Full Court outlined above.
Held per Tilmouth AJ (Kourakis CJ and Parker J agreeing), dismissing the application:
1. Recalling or setting aside the judgment against WPA would infringe the fundamental principles of finality and consequently, the due administration of justice. To do so in the circumstances would perpetuate a triumph of form over substance.
2. The parties remain bound by their conduct in the appeal proceedings as this was a case where because of its conduct, WPA acted as if it was a party, having stood by and allowed the appeals to proceed as they did. There was no misapprehension of the status of WPA as a party to the cross appeal.
3. An order pursuant to r 22.4(b) of the Uniform Civil Rules 2020 (SA) is to be made joining WPA as a respondent party to the cross appeal. To the extent necessary, an extension of time to 2 March 2020 is granted to join WPA as a respondent party to the cross appeal.
Acts Interpretation Act 1915 (SA) s 16(1)(c); Supreme Court Civil Rules 2006 (SA) 242, r 283; Supreme Court Rules 1987 (SA) r 84.12; Uniform Civil Rules 2020 (SA) r 1.4, r 22.4, r 218.18, referred to.
Bailey v Marinoff (1971) 125 CLR 529; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (No 2) (2013) 87 ALJR 1159; Gamser v Nominal Defendant (1977) 136 CLR 145; University of Wollongong (No 2) v Metwally (1985) 59 ALJR 481, applied.
Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20, distinguished.
Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 526 (Doyle CJ); George Street Steel Pty Ltd (ACN 008 179 708) v Wilson Pastoral International Pty Ltd (ACN 167 284 399) [2019] SADC 11; Wilson Pastoral International Pty Ltd (ACN 008 179 708) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54, discussed.
Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; Glenmont Investments Pty Ltd v O'Loughlin (No 6) [2001] SASC 287; Patel v The Queen (2012) 247 CLR 531; Spencer v GMG Legal Services Pty Ltd (ACN 074 972 231) [2013] SASC 19; Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, considered.

WILSON PASTORAL INTERNATIONAL PTY LTD v GEORGE STREET STEEL PTY LTD (No 2)
[2020] SASCFC 126
Full Court: Kourakis CJ, Parker J and Tilmouth AJ

KOURAKIS CJ: I agree with the reasons of Tilmouth AJ and the orders he proposes.
PARKER J: I agree with the reasons of Tilmouth AJ and the orders he proposes.
TILMOUTH AJ:
The present application
The original proceedings bringing this matter before the Full Court were an appeal by Wilson Pastoral International Pty Ltd and a cross appeal by George Street Steel Pty Ltd, against a judgment affecting both, which was entered in the District Court.[1]
[1] George Street Steel Pty Ltd (ACN 008 179 708) v Wilson Pastoral International Pty Ltd (ACN 167 284 399) [2019] SADC 11.
Amongst other orders made by this Court on 19 June 2020 in the cross appeal, were the following:[2]
2.1Giving judgment in its favour in action DCCIV-16-349 in the sum of $105,801.68 together with prejudgment interest of $35,344.87, against Wilson Pastoral Australia Pty Ltd and Wilson Pastoral International Pty Ltd, jointly and severally;
2.2By varying the costs order made on 28 March 2019, by ordering that Wilson Pastoral Australia Pty Ltd and Wilson Pastoral International Pty Ltd be jointly and severally responsible for the payment of George Street Steel Pty Ltd’s costs on a party and party basis up to 30 May 2018 and thereafter on an indemnity basis and by making no order as to costs in respect of Mr and Mrs Wilson.
[2] Wilson Pastoral International Pty Ltd (ACN 008 179 708) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [127]. George Street Steel Pty Ltd is hereafter referred to as ‘George Street Steel’.
These proceedings return to the Full Court by way of an interlocutory application brought by the Wilson Pastoral International Pty Ltd on 22 July 2020, seeking orders setting aside the above aspects of the judgment against Wilson Pastoral Australia Pty Ltd (ACN 008 030 297).[3] This Application proceeds on the basis that the Notice of Cross Appeal did not name or join WPA as a respondent party. As a consequence, it is contended there was procedural and substantial irregularity, in both instances serving to vitiate the above quoted orders insofar as they relate to WPA.
[3] These related Wilson Corporate entities are hereafter referred to as ‘WPI’ and ‘WPA’ respectively.
In order to examine the merits of this contention, it is first necessary to sketch the course taken by the parties in the appeal and cross appeal processes.
The Notice of Cross Appeal
The assertion that the Notice of Cross Appeal only named WPI as sole respondent is perfectly correct.[4] All the same, it was served on WPA through the solicitors who acted for both WPI and WPA.
[4] Appellant’s Case Book, vol 2, tab 40 pp 941-942.
The orders sought in the Notice of Cross Appeal included the following:
2.2.The Lien registered by the Plaintiff on the Second Defendant’s land be enforced by writ or warrant of sale of the land and/or any fixtures upon the land.
2.3.Costs of the trial and of the appeal and cross-appeal against the Defendants.
The ‘defendants’ referred to in this Notice were WPI (first defendant), WPA (second defendant) as well is their directors Mr and Mrs Wilson (third and fourth defendants). This notice contained the following grounds of cross appeal:
3.2The learned Judge erred in finding that the contracting parties did not include all of the Appellant, WPA, Mr Wilson and Mrs Wilson, by failing to give sufficient weight to the objective evidence of the correspondence between the parties and the invoices that were sent by the Respondent to the Appellant, WPA, Mr Wilson and Mrs Wilson;
3.3The learned Judge erred in failing to find that as WPA was the owner of the land it was therefore the beneficiary of the plant and equipment;
3.4The learned Judge erred in failing to find that the WPA derived a benefit from the services provided by the Respondent;
…
3.7The learned Judge erred in her finding about the contract for the provision of services … with the consequence that the learned Judge erred in finding that the Respondent’s workers’ lien was void and unenforceable (at [375]); and
3.8The learned Judge erred in ordering that only the Appellant pay the Plaintiff’s costs, including by failing to give sufficient weight to:
3.8.1 The fact that the Appellant, WPA, Mr Wilson and Mrs Wilson were Counterclaimants until 16 November 2017; and
3.8.2 The unilateral removal by the Appellant, WPA, Mr Wilson and Mrs Wilson as Counterclaimants.
Written submissions
The written submissions filed on behalf of George Street Steel were relatively brief on the question of costs. They began with a repetition of the above issues raised by the Notice of Cross Appeal, before maintaining that ‘the ordinary rule ought to follow that costs be against all defendants jointly and severally’. A footnote to those submissions contended ‘for reasons identified below … all defendants at first instance are liable to the Respondent’. The submission pressed the point that an unsuccessful party ought to compensate a successful party for its costs in pursuing or defending the claim and that it was appropriate to exercise the Court’s unfettered discretion to award costs against WPA, as well as Mr and Mrs Wilson.
WPI’s written response was to the general effect that it was well-established that an appeal court will not, except for strong reasons, interfere with a trial judge’s discretionary costs ruling and no error was demonstrated in the exercise of that discretion, thus providing ‘no cause for appellate intervention’. It proceeded to make the other points detailed and essentially accepted by this court in the judgment of 19 June 2020, largely based on grounds 3.8.1 and 3.8.2 quoted above.[5] The written submissions also gave not inconsiderable attention to the workers’ lien registered over the land owned by WPA, principally by reference to various expert reports.
[5] Wilson Pastoral International Pty Ltd (ACN 008 179 708) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [95].
The oral submissions
This discrete issue relating to costs was dealt with briefly by counsel for George Street Steel in the context of the larger question as to which Wilson Corporate entity was the contracting party:[6]
… [O]ur primary submission it's Wilson Pastoral Australia … either one party or two ... your Honours might construe it as being both parties; after all, Wilson Pastoral Australia was the owner of the land. It had to be allowing us onto the land, it had an interest … and so it can be both.
Counsel for WPI was merely content to ‘leave’ the issue with ‘the written submissions’.[7]
[6] Transcript of Proceedings at 150.6-16.
[7] Transcript of Proceedings at 66.12-13.
With respect to the workers’ lien issue, counsel for the only named respondent on the cross appeal, WPI, spent most of his time putting the argument, in WPA’s interest, that the pellet plant was not a ‘fixture’ on WPA’s land, as required by s 5 of the Worker’s Liens Act 1893 (SA). He referred to various expert reports. Counsel for the respondent likewise focussed his oral submissions largely on the same topic. In the result George Street Steel was unsuccessful on this aspect of the cross appeal which had sought orders against WPA.[8]
[8] Wilson Pastoral International Pty Ltd (ACN 008 179 708) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [109]-[120].
Following the delivery of judgment on 19 June 2020, sealed orders were entered without objection on 29 June 2020, including orders to the effect that WPI was to pay George Street Steel’s costs of and incidental to the appeal brought by WPI on a party/party basis and to pay 50 per cent of George Street Steel’s costs of and incidental to the cross appeal on a party/party basis. This order benefited WPA in as much as it was relieved of any liability for costs of the appeals. The combined sealed judgments of the Full Court were thereafter forwarded to the parties on 17 July 2020.
Summary of the appeal process
It is quite apparent from the above review of the course of the appeal and cross appeal, that no one drew the Court’s attention to the fact that WPA was neither named nor joined as a respondent party to the cross appeal.
Consistently with his obligation of candour with the court, the principal solicitor who instructed on the appeal and cross appeal for WPI frankly acknowledges in an affidavit, having viewed a ‘marking up’ of the Notice of Cross Appeal in May 2019 which noted ‘should GSS be joining WPA’, made by another solicitor in the same legal firm. The solicitor further acknowledges that he discussed the “deficiency” with junior counsel and the ‘need’ for ‘GSS … to pursue a joinder application’. He also deposed that he assumed that r 283 of the 2006 Rules would have operated to deem WPA to be a party to the cross appeal’.
In his own affidavit, the junior counsel involved in this discussion, confirms that the topic was raised in the conference with both solicitors. He advised that it was a ‘problem’ for George Street Steel. He considered ‘it to be a matter of unimportance’ and regarded ‘it as a matter of form over substance’. That was a legitimate forensic view to take. It was a pragmatic common sense position. However, it would have been better to raise the matter with the Court before putting the submissions in defence of WPA’s interest so that the record might be regularised.
Neither senior counsel made mention of the omission during the course of the appeal, and it follows no objection was mounted on behalf of WPI or WPA that the Court could not make the orders it did against WPA on that account. Both WPI and WPA had in common the one solicitor, as well as the same junior counsel throughout the trial and the appeal processes. Both Mr and Mrs Wilson were present during the entire course of the appeals.
The solicitors and counsel appearing for WPI, and who advanced arguments in support of WPA’s interest, have never disputed that they had instructions from WPA to put those submissions in respect of WPA’s interest.
Clearly the appeals were conducted on both sides as if WPA was a party. In any case, WPA was deemed to be a party to the cross appeal by force of SCR 283 of the now repealed Supreme Court Civil Rules 2006 (SA).[9] Rule 283 thereof provided:
283 Parties to appeal
(1) A party to the proceedings in which the judgment under appeal was given is a party to the appeal unless the party has no interest in the subject matter of the appeal.
(2) The Court may order the addition or removal of a person as a party to an appeal.
(3) A person cannot be added as an appellant without the person’s consent.
[9] Hereafter referred to as the ‘2006 Rules’.
The power to reopen or set aside
The present application is principally brought under r 218.18 of the Uniform Civil Rules 2020 (SA).[10] Before the introduction of these Rules, the situation was that an application for an order reopening or setting aside a judgment or orders of the Full Court was ‘exercised only in exceptional circumstances’: Copping v ANZ McCaughan Ltd,[11] or on the assumption that it exists, ‘with great caution after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation’: University of Wollongong (No 2) v Metwally,[12] Wentworth v Woollahra Municipal Council (No 2).[13]
[10] Hereafter referred to as the ‘2020 Rules’.
[11] (1997) 67 SASR 525 at 526 (Doyle CJ), a decision left open to question in Glenmont Investments Pty Ltd v O'Loughlin (No 6) [2001] SASC 287 at [17].
[12] (1985) 59 ALJR 481 at 482.
[13] (1982) 149 CLR 672 at 684.
Mason CJ expressed the guiding principle in these terms in Autodesk Inc v Dyason (No 2):[14]
What must emerge … is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.
This statement of principle was unanimously applied by five judges of the High Court in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2).[15]
[14] (1993) 176 CLR 300 at 303.
[15] (2013) 87 ALJR 1159 at [26].
In Bailey v Marinoff,[16] Barwick CJ considered the inherent power of courts does not extend to orders disposing of a proceeding once perfected and drawn up as the record of a court, as ‘beyond recall by that court’, a decision followed in Gamser v Nominal Defendant.[17]
[16] (1971) 125 CLR 529 at 530.
[17] (1977) 136 CLR 145 at 147, 154.
This line of authority is driven by the fundamental underlying principles that the power to reinstate a proceeding finally disposed of, does not promote the due administration of the law or justice: Bailey v Marinoff,[18] or the finality of litigation: Gamser v Nominal Defendant:[19]
[18] (1971) 125 CLR 529 at 530.
[19] (1977) 136 CLR 145 at 147, 154.
At the time Copping v ANZ McCaughan Ltd was decided, r 84.12 of the Supreme Court Rules 1987 (SA) provided:[20]
The Court may vary or set aside a judgment or order at any time if the justice of the case so requires.
At all relevant times to the within appeals, r 242 of the 2006 Rules was expressed in identical terms.
[20] Hereafter referred to as the ‘1987 Rules’.
Turning attention next to the 2020 Rules,[21] it appears clear enough that they apply to the present application to reopen. The transitional provisions of r 1.4(1) apply the 2020 Rules to ‘a step in a proceeding taken. Rule 2.1 defines a ‘proceeding’ to include ‘where the context requires—an appellate proceeding’. A civil appeal is not defined as an ‘excluded proceeding’ therein. Rule 12.1(h) allows the court to ‘set aside a step taken in a proceeding in breach of these Rules or an order, or for other cause’. Next, r 186.1 empowers the Court to vary, set aside a judgment and reopen a proceeding ‘if satisfied that the interests of justice so require’ and r 218.18(1)(a) further permits the Full Court to ‘set aside or amend a judgment or order the subject of the appeal’.
[21] These came into operation on 18 May 2020.
Taken in combination, these various Rules effectively operate in the same way as provided for in r 242 of the 2006 Rules and r 84.12 of the 1987 Rules,[22] and thus continue to require exceptional circumstances involving some misapprehension of the facts or of law resulting in otherwise irremediable injustice.
[22] See Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 567-568 (Lander J).
The orders made on 19 June 2020
The above orders made by the Court against WPA spring entirely from the issue as to which Wilson Corporate entity contracted with George Street Steel. The trial Judge concluded that WPI was the sole contracting party on the premise that there was ‘no evidence of the involvement of WPA other than as the owner of the land’.[23] This conclusion was contentious during the course of the appeal. It was dealt with in 16 of 59 paragraphs in the written submissions for George Street Steel,[24] and it occupied 19 of 131 paragraphs in WPI’s response.[25] The issue was canvassed during the oral submissions by both counsel, albeit relatively briefly.[26] WPI also filed supplementary written submissions on the issue on 1 May 2020.[27]
[23] Wilson Pastoral International Pty Ltd (ACN 167 284 399) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [86].
[24] Paragraphs 20-31 and 54-59.
[25] Paragraphs 32-47 and 126-130.
[26] Transcript of Proceedings 72-73, 154 (George Street Steel); Transcript of Proceedings 181-188 (WPI).
[27] Paragraphs 3-8.
The workers’ lien issue was covered in some 13 paragraphs of the cross appellant’s written submissions and 29 paragraphs in the cross respondent’s written submissions. Here again that topic was also covered by both senior counsel during the course of oral submissions as well.[28]
[28] Transcript of Proceedings 85.13-93.26 (WPI), Transcript of Proceedings 159.20-168.22 (George Street Steel).

The grounds of cross appeal relating to the workers’ lien issue pertained exclusively to WPA, as it was on its land that the pellet plant and boiler constructed by George Street Steel, which formed the subject matter of the underlying contractual dispute coming before the lower court. The trial Judge held that the lien entered over WPA’s land was invalid on account of the failure to establish the ‘contract price’ within the meaning of s 5 of the Worker’s Liens Act 1893 (SA).[29] Although this Court disagreed with this aspect of the trial judgment, it never the less upheld the conclusion that the workers’ lien registered on the land owned by WPA was invalid, on the alternative ground that George Streel Steel failed to demonstrate that the pellet plant was affixed to the land and therefore was a ‘fixture thereon’ as required by s 5 of the Worker’s Liens Act.[30]
[29] George Street Steel Pty Ltd (ACN 008 179 708) v Wilson Pastoral International Pty Ltd (ACN 167 284 399) [2019] SADC 11 at [375].
[30] Wilson Pastoral International Pty Ltd (ACN 167 284 399) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [120].
Analysis
It can be accepted that there is inherent jurisdiction to set aside a determination upon the failure to observe the fundamental principle of natural justice that a party must be given a reasonable opportunity of appearing and presenting its case: Cameron v Cole.[31] That was a case in which a sequestration order was made against a non-attendant party who was not given notice of the proceeding, rendering the order a nullity. In that situation as Rich J noted, the ‘setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial’.[32]
[31] (1944) 68 CLR 571 at 589.
[32] Ibid.
By the same token, the inescapable fact of the matter is that WPA was a mandatory party in this jurisdiction to both the appeal and cross appeal by operation of r 283(3) of the 2006 Rules. Both processes were fully argued in writing and orally as if WPA was a participating party before the Full Court. The parties were at liberty to put any argument they considered appropriate.
In the affidavit referred to earlier, junior counsel for WPI deposed to considering at all times that he was ‘briefed for WPI, WPA and Mr and Mrs Wilson at the hearing’ of the appeal and cross appeal, on the basis that the Notice of Cross Appeal ‘plainly sought relief against WPA’. For his part, senior counsel for WPI in the appeal acknowledges in his own affidavit an awareness of the fact that WPA ‘was not formally named as a party’, but as it ‘had a direct interest in the subject matter of the cross appeal’, the omission was ‘likely to be an oversight or slip’. He deposes that he shared the view of junior counsel that the issue was ‘one of form over substance’ and that if raised was likely to have resulted in a simple amendment. He further deposes that he understood that he was ‘instructed to appear for, and argue, on behalf of WPA, and also Mr and Mrs Wilson and Wilson Pastoral International’ and of prosecuting ‘the cross‑appeal on this basis’.
This was not therefore a case in which WPA was ‘not given an opportunity to be heard on an issue held to be determinative’ by any measure: Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2).[33]Still further, as the workers’ lien issue had nothing to do with WPI, it was solely WPA that was effected by it and entitled to respond to it.
[33] (2013) 87 ALJR 1159 at [15].
The applicant submits that now having engaged different counsel, it wishes to advance additional arguments not made by counsel on the appeal. That submission is not sourced in a denial of procedural fairness. On the contrary, it seeks a second opportunity to defend the action by putting different arguments. To adapt the language of the High Court to this proposal in University of Wollongong (No 2) v Metwally:[34]
The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard … [WPA] … was represented – and competently represented – in the argument before this Court.
As further pointed out in this unanimous decision of the Court:[35]
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[34] (1985) 59 ALJR 481 at 483.
[35] Ibid.
The situation is simply then to again adopt the words of five judges of the High Court in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2):[36]
All that is shown is that [the applicant] disagrees with the conclusions reached by this Court and that it seeks a second opportunity to persuade the Court that the view of the [Court] articulated by the [applicant] is preferable to the view formed by the Court. That should not be permitted.
[36] (2013) 87 ALJR 1159 at [26].
Further than that, the situation is akin that encountered in Bailey v Marinoff, a case in which the Court held there was no jurisdiction to make orders in litigation brought regularly to an end:[37]
[H]owever hard the case might seem for the would be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. The finality of the order dismissing the appeal does not seem to me to partake of injustice in the circumstances or to call for any departure from well settled principles, themselves essential in my opinion to the due administration of our system of law.
[37] (1971) 125 CLR 529 at 531
Putting these insurmountable considerations aside, the fresh point sought to be made in its written outline in support of the current application, is that George Street Steel wrongly purported to rely on post-contractual conduct in support of the submission that WPA was a contracting party to the agreement with it. Particular reference was made to two invoices rendered by George Street Steel on 10 August 2015 and 1 September 2015, described during the course of the trial as ‘deferral agreements’, by which George Street Steel agreed to defer payments of those invoices. The trial Judge found these were contractually binding ‘standalone agreements’.[38] These were also referred to in the written material submitted by WPI.
[38] George Street Steel Pty Ltd (ACN 008 179 708) v Wilson Pastoral International Pty Ltd (ACN 167 284 399) [2019] SADC 11 at [36], [297]-[298].
Both invoices were simply addressed by George Street Steel to ‘Wilson Pastoral’, both gave the description ‘Your ABN 50 008 030 297’, which was in point of fact the ACN of WPA, and both contained admissions to ‘the full amount outstanding’, executed by Mr and Mrs Wilson in their capacities as Directors of both Wilson corporate entities.[39]
[39] Wilson Pastoral International Pty Ltd (ACN 167 284 399) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54, [46]-[50].
When considering this question, this Court analysed the issue in the manner referred to by Allsop P and Handley AJA in Air Tahiti Nui Pty Ltd v McKenzie:[40]
The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract.
...
Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances.
(Citations omitted)
[40] (2009) 77 NSWLR 299 at [28].
In concluding that both WPA and WPI were parties to the contracts, this Court considered the deferral agreements in particular as amounting to admissions by conduct that WPA was a party to the contract with George Street Steel.[41] The remaining supplementary material relied upon to reach that conclusion in fact pre-dated the deferral agreements.[42]
[41] Wilson Pastoral International Pty Ltd (ACN 167 284 399) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [87].
[42] Ibid at [88]-[89].
It is further complained on behalf of the applicant that WPA’s application for Special Leave to Appeal to the High Court of Australia was rejected by the High Court Registry on the basis that it was never a party to the appeal or cross appeal. The inescapable fact of the matter is, as seen above, that it was party to the appeal proceedings by dint of r 283(1) of the 2006 Rules. WPA chose not to have the appeal proceedings regularised so that the record of the Court reflected the effect of that rule. Whatever the position under the practices and procedures of the High Court, the fact remains that WPA was in substance a party to the appeal and cross appeal for the purposes of the Full Court hearing.
It was next contended by counsel for the applicant that r 283 of the 2006 Rules was ‘not a self-executing joinder of all the parties in the Court below’, by reference to Spencer v GMG Legal Services Pty Ltd (ACN 074 972 231).[43]In that case Stanley J held r 283(1) of the 2006 Rules was ‘not self-fulfilling’, in as much as it did not require a person to be added as an appellant party without that party’s consent given under r 283(3), when that party did not appeal the decision of the lower court.[44]
[43] [2013] SASC 19.
[44] Ibid at [33].
The present case is quite different. Rule 283(3) of the 2006 Rules is not engaged in this case, whereas r 283(1) is, since WPA was a successful party in the court below and it plainly holds ‘an interest in the subject matter of the appeal’ and cross appeal.
The present application similarly presents a completely different situation to that confronted in Tedeschi v Legal Services Commissioner.[45] Although somewhat complicated, the facts of that case can be summarised for present purposes, as follows. Complaints to the Bar Council of New South Wales against Mr Tedeschi relating to his conduct in prosecuting three charges of murder arising out of the Hilton bombing in Sydney in 1978 against a Mr Anderson were dismissed. Mr Anderson brought proceedings against the Bar Council to have the dismissals quashed. Mr Tedeschi was not joined as a party to those proceedings, stating he did not propose to participate in them and that he did not consent to making the orders sought. Nevertheless, the Bar Council consented to orders setting aside the dismissals ab initio.
[45] (1997) 43 NSWLR 20.
The Legal Services Commissioner of New South Wales subsequently became responsible for subsequent complaints and took the view that the orders setting aside the dismissals meant that there were no final decisions, so that the complaints remained extant and which he resolved to pursue. Mr Tedeschi objected on the basis that the judgment as between Mr Anderson and the Bar Council was not binding on him as he was not a party to the proceedings. He brought proceedings seeking a declaration that the Commissioner had no jurisdiction to entertain the complaints and that he was not bound by the subsequent dismissal.
It was held that Mr Tedeschi was not bound by the orders for dismissal as he was not a party. Unlike Mr Tedeschi, WPA was privy to WPI which was a party to the appeal proceedings. Unlike Mr Tedeschi, WPA was obliged to be joined to those proceedings and unlike Mr Tedeschi, WPA ‘was prepared to stand by, allow the matter to pass to judgment and abide the result’.[46]
[46] Ibid 30F-31B, 31F-G, 36B-C, 37G-38A, 40A-B.
An additional consideration is that r 283 of the 2006 Rules survives the commencement of the 2020 Rules by dint of s 16(1)(c) of the Acts Interpretation Act 1915 (SA), which provides that:[47]
Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not— affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry;
[47] Section 3A thereof provides that ‘this Act applies to, or in relation to, an Act or statutory instrument whenever passed or made’.
The terms of r 283 of the 2006 Rules are clear and unambiguous. There is nothing in the 2020 Rules evincing a contrary intention. Indeed, those Rules provide for precisely the situation at hand here by the following Rule:
Chapter 3—Parties and representation
Part 1—Parties
…
22.4—Errors
(1) A proceeding or appellate proceeding is not invalid merely due to an error in the joinder or name of a party, including (without limitation)—
(a) an error in the name, description or capacity of a party;
(b) the non-joinder of a necessary or proper party; or
(c) the joinder of a party who should not have been joined.
(2) The Court may make such orders on such conditions as it thinks fit in respect of an error of joinder or name of a party.
This Rule provides the extensive and flexible discretionary ameliorative power to remedy errors relating to the joinder of parties to appeals when it is in the interests of justice to do so. In the above described circumstances, as WPA was clearly ‘a necessary or proper party’, it is entirely appropriate to make an order now for then, permitting the joinder of WPA as cross-respondent in the cross appeal. Even though the exercise of the ameliorative power conferred by r 22.4 of the 2020 Rules is not conditioned on an extension of time, to the extent necessary (if at all) it is otherwise appropriate to grant an extension of time to join WPA as a respondent to the cross appeal to the first day of the appeal hearing, held on 2 March 2020. If the present objection was raised at that time, there can be no doubt that such an order would be made then, because it was a matter of mere formal omission with no consequence of substance.
The notion of finality takes on particular significance in the circumstances of this case. The underlying action relates to events taking place in 2015. The trial was listed for eight days owing to a significant underestimation of length, commenced on 13 March 2018, ultimately occupied 29 sitting days and concluded on 29 October 2018.[48] The order for costs referred to earlier came about because of what her Honour described as the Wilson’s ‘exaggerated claim and attitude toward negotiations rendered settlement impossible despite the plaintiff’s efforts’ and the ‘imprudent and unreasonable failure to accept offers to settle…’ on their part.[49]
[48] George Street Steel Pty Ltd (ACN 008 179 708) v Wilson Pastoral International Pty Ltd (ACN 167 284 399) [2019] SADC 11 at [9].
[49] George Street Steel Pty Ltd (ACN 008 179 708) v Wilson Pastoral International Pty Ltd (ACN 167 284 399) [2019] SADC 39 at [37]; Wilson Pastoral International Pty Ltd (ACN 167 284 399) v George Street Steel Pty Ltd (ACN 008 179 708) [2020] SASCFC 54 at [40].
Conclusion and orders
To recall or set aside the judgment against WPA would infringe the fundamental principles of finality and consequently, the due administration of justice. To do so in the circumstances under which the appeals were comprehensively conducted as detailed above, on account of the mere inconsequential omission to name a party in the cross appeal, would indeed perpetuate a triumph of form over substance. WPA was in any event necessarily the sole respondent on the workers’ lien issue. The parties remain bound by their conduct in the appeal proceedings, as this was a case where because of its conduct, WPA acted as if it was a party having stood by and allowed the appeals to proceed as they did: Administration of Papua and New Guinea v Daera Guba and Patel v The Queen.[50] There was in the circumstances deposed to by the solicitor and appeals counsel, no misapprehension of the status of WPA as a party to the cross appeal. Furthermore, the underlying actions are now far too protracted to permit that course in the combined circumstances.
[50] (1973) 130 CLR 353 at 403; (2012) 247 CLR 531 at [114].
However, the preceding should now be regularised to give effect to r 283(1) and to reflect the fact that WPA appeared as a respondent on the cross appeal without protest, and made submissions against the order sought by George Street Steel. There should be an order pursuant to r 22.4(b) of the 2020 Rules joining WPA as a respondent party to the cross appeal by George Street Steel and to the extent necessary granting an extension of time for that purpose to 2 March 2020. Otherwise the application to set aside the perfected orders of the Full Court in so far as they relate to WPA, must be refused.