Zivko Dopudj v FDC Construction and Fitout Pty Limited

Zivko Dopudj commenced proceedings against FDC Construction and Fitout Pty Limited, seeking damages for alleged breaches of contract and negligence in relation to construction works. The case was heard in the Supreme Court of Victoria. The dispute centred on whether the court had the jurisdiction to join a second defendant, who was a director of the first defendant, without prior notice to the parties. The plaintiff argued that the additional defendant had a significant role in the alleged breaches and should be held liable alongside the first defendant. The first defendant contested the joinder, asserting that the lack of prior notice violated their procedural rights.

The legal issues before the court were whether the court had the inherent jurisdiction to join a second defendant after the proceedings had commenced, and if such joinder was permissible without notice to the parties. The court considered the principles of procedural fairness and the statutory provisions governing joinder of parties in civil proceedings. It was necessary to balance the plaintiff's right to a complete remedy against the potential prejudice to the defendants if they were not given an opportunity to respond to the allegations against the second defendant.

The court found that while the inherent jurisdiction of the court to control its own procedure allowed for the joinder of additional defendants, the failure to provide prior notice to the parties was not in accordance with the statutory requirements and procedural fairness. The court emphasised that notice is generally required to allow the defendants to prepare their defence and to ensure a fair trial. Consequently, the court held that the joinder of the second defendant without notice was improper and ordered that the proceedings against the second defendant be stayed until the issue of joinder was properly addressed. The court did not dismiss the plaintiff's claims outright but required the plaintiff to comply with the necessary procedural steps before proceeding against the second defendant.