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Lecture 3

WEEK 3 - Joinder and Parties

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JOINDER OF CLAIMS AND PARTIES RES JUDICATA AND ISSUE ESTOPPEL IF SAME CAUSE OF ACTION, PARTIES, SUBJECT MATTER (CAUSE OF ACTION ESTOPPEL) Res judicata – relitigation of matters Res judicata precludes the relitigation of claims made in earlier proceedings between the same parties in respect of the same subject matter (or their privy’s or persons closely connected with the parties). Party is not permitted to reopen matters the subject of the earlier proceeding or which might reasonably have been litigated in the earlier proceeding. That is, if the parties had been exercising reasonable diligence the matter would have been included as part of the earlier litigation: Port Melbourne Authority v Anshun Port of Melbourne Authority v Anshun Pty Ltd (No 2) Facts: Worker had been injured by a load of girders handled by a crane hired by Anshun from the Port of Melbourne Authority. Earlier action brought by the injured worker against Anshun and the Authority, the defendants sought contribution from each other pursuant to the Wrongs Act. It was ordered in the contribution proceedings that Anshun should recover 90% of the damages awarded to the Plaintiff from the Authority and that the Authority should recover 10% of the damages from Anshun. Authority then brought proceedings against Anshun claiming an entitlement to an indemnity from Anshun pursuant to the crane hire agreement. HELD: The claim for indemnity ought to have been pursued in the original proceeding. Gibbs CJ, Mason and Aickin JJ - There will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant (so closely connected) to the subject matter of the first action that it would be unreasonable not to rely on it. - A party will be estopped from bringing an action which, if it succeeds, will result in a judgement which conflicts with an earlier judgement. Noted in this case that a claim to an indemnity may be litigated as between a defendant and a third party (or between defendants) even though the right to indemnity arises only on payment of the liability to which it relates i.e. payment to the plaintiff who seeks damages. The fact that liability to the plaintiff has not been established (or discharged) is no bar to the third party claim. IF DIFFERENT SUBJECT MATTER Issue Estoppel A particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings involving a different cause of action one party seeks to reopen that same issue. Issue Estoppel occurs where there is an essential element common to two or more sets of proceedings involving the parties. Aimed at preventing mutually inconsistent decisions from being reached. In Arnold v National Westminster Bank Plc it was held that issue estoppel also extends to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings but also includes where in subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier. EXCEPTION – new material Where further material relevant to the correct determination of a point involved in earlier proceedings 1 which has become available to a party, whether or not the point was specifically raised and decided, material which could not by reasonable diligence have been adduced in those proceedings: Arnold per Lord Keith of Kinkel at [109]. Arnold v National Westminster Bank Plc Facts: A judgment adverse to tenants of premises in a rent review case had been given by a HC judge. The judgment was shown to be erroneous by two Court of Appeal decision in later cases. The tenant brought proceedings seeking, in effect, the re-opening of the findings made in the earlier High Court action. HELD: There were special circumstances, namely, the fact that the law had changed since the original decision in the HC. The action was not barred by issue estoppel. Public Policy: (reflected in UCPR) Proper Process: Intended to ensure finality in litigation, and ensure that all relevant parties brought to court (r62), and ensure that all issues and causes of action that should be raised are raised in the one proceeding. JOINDER OF PARTIES Should a party be joined to the proceedings? Joinder is permitted where it is just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding: r 69(1)(b)(ii). All parties who are necessary and proper for the resolution of a dispute must be brought before the court (so can adjudicate completely and effectively all matters in dispute): r 62. NB. McGill DCJ in Strudwick v Selby at 4: “If there is a proceeding where A claims against B certain relief, and it is sought to join C, the qn. is not whether all matters in dispute between A, B and C can be effectually and completely adjudicated in the absence of C, but whether all matters in dispute between A and B can be effectually and completely adjudicated in the absence of C” IF merely commercial/social interest: To be necessary a party must have a legal interest in the subject matter not a mere commercial or social interest: NAB v Bond Brewing. IF limitation period expired: New parties cannot be added or substituted under the rules after a limitation period has expired unless in the cases set out on r69(2) (see 2-512 practice guide): However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies - (a) the new party is a necessary party to the proceeding because— (i) property is vested in the party at law or in equity and the plaintiff's or applicant's claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or (ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or (iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court's intention to make the order; or (iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court's intention to make the order; 2 (b) the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally; (c) the new party is the Attorney-General and the proceeding should have been brought as a relator proceeding in the Attorney-General's name; (d) the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company; (e) the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable; (f) for any other reason - (i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or (ii) relief sought in the proceeding before the end of the limitation period can not be granted; unless the new party is included or substituted as a party. NB. Rule 69(2) is concerned to deny the joinder of a party whose relevant cause of action is adversely affected by a limitation period, save in those cases specifically identified in r 69(2)(a) to (f). The rule is not, however, concerned to deny the joinder of a party whose relevant cause of action is not adversely affected by the end of the limitation period applicable to that case of action: Althaus v Australian Meat Holdings Pty Ltd I (QCA) Can PLAINTIFF be joined? All parties entitled must be parties to the proceedings: r63(1). Therefore (plaintiff), _____. IF plaintiff refuses joinder: Here, (plaintiff) is jointly entitled to seek relief and has refused joinder and therefore must be added as a defendant: r63(2). IF MULTIPLE PLAINTIFFS OR DEFENDANTS: Rule 65(1) provides that several plaintiffs/defendants may be joined in the one proceeding where: (a) a common question of law or fact arises; OR (b) the rights of relief claimed arises out of the same transaction or series of transactions/events. (A)Common Q of law or fact? The courts apply a liberal interpretation to the joinder machinery. Here, ______. IF parties want different relief: It does not matter that every party is not interested in all the relief sought or every cause of action included in the proceedings: r66. Example(s): • In Bendir v Anson a “common question of law or fact” was found not to exist in an action brought by 2 owners of adjoining buildings against a new neighbour for interference with light. Lord Wright MR discussed the fact that the position of each building ay be quite different from the other in terms of access to light and on that basis no ‘common’ question of fact could be said to exist. • No common question of fact or law where defendant slandered firm and in a separate publication slandered the plaintiff (action sought damages for slander on pff and damages for firm for slander on it) – it was a misjoinder: Smith v Foley. • IF vicarious liability: The action against X will be in respect of his negligence and the action against Y will be based on vicarious liability for X’s negligence providing X was acting in the course of his employment at the time. As with any joinder of defendants on the 3 basis that one is vicariously liable for the negligence of the other almost all the questions of law and fact that will arise in each proceeding will be the same. The only additional question that will arise in respect of the proceeding against Y which would not necessarily arise in the proceeding against X would be whether X was at the time of the accident acting in the course of employment. (B) Claim arise from the same transaction? ‘Series’ is limited by the word ‘same’: Payne v Young. Therefore, ____. However, ‘event’ in r65 gives a wider scope than ‘transaction’ in Payne v Young: Bendir v Anson; Birtles v Cth, or alternatively could argue the r5 philosophical aims of the UCPR. IF Q whether transaction: Meaning of ‘transaction’ is unsettled, however requires some causal act or breach on the part of the defendant which damaged the plaintiff: Cameron v NMLA (Ryan J). The situation must be viewed as a whole and if when viewed as such there a common question is arising out of the transaction or series of transactions/events then they should be joined in the same action: Birtles v Cth. Examples: • Erection of building blocking light of two others was transaction: Bendir v Anson • Transaction encompassed the accident and injury sustained by the plaintiff as well as action for solicitor’s failure to issue a notice of intention to sue (part of the personal injury transaction) allowing the solicitor to be joined as a defendant: Birtles v Cth. • ‘Same transaction or series of transactions’ re: libel or slander must mean the ‘same publication or series of publications’, one publication slandered the firm and another the plaintiff – publications separate: Smith v Foley. • IF vicarious liability: Clearly on the facts at hand (as will always be the case when one defendant is sued on the basis of vicarious liability for the negligence of the other) all the rights to relief sought in the proceeding arise out of the same transaction or event (namely the same eg. crash). Payne v Young Facts: A number of plaintiffs each operated a different abattoir and all were seeking a declaration that particular excise regulations were invalid and there separate claims for recovery of inspection fees paid under it. Held: Requirement that be same transaction or series of not satisfied. Though they were all the same time and involved one excise regulation they all said was invalid, Court said “series” is limited by “same”. No common participation in inspection services subject of the impugned regulations. Similar transactions but as each transaction was peculiar to that particular plaintiff, they were not the same. Dissent: Murphy J – regulation was remedial and should be construed liberally. Today: Would satisfy as only need to satisfy one limb (ie. declaration of validity of regulation = common question law) therefore in Queensland, enough for joinder under UCPR (Qld). Birtles v Commonwealth Facts: Plaintiff brought proceedings for damages arising out of an industrial accident. Defendant maintained that action was statute barred. One defendant was state electricity commission and it alleged plaintiff failed to serve notice on it within 6 months of accident. Plaintiff sought to add original solicitors as defendants in the action alleging negligence in failing to serve the notice. 4 Held: (SC of Vic) did fall within one transaction (comprehends in addition to accident and injury, other factors of relevance in action against original defendants including commencement of action more than two years after the accident. Re: that transaction – viewed as a whole that plaintiff was not entitled to relief against original defendants and with respect to transaction, question of law or fact common to the causes of action against the original defendants and solicitors arose. In relation to adding the claim against the solicitors, Adam J said by litigating the claim against the solicitors in a separate action, the pff might possibly ‘fall between two stools’ (if action proceeded against defendants and defendant pleads limitation as defence and succeed. What would plaintiff do? If joinder not permitter, bring action against solicitors in separate proceedings for professional negligence. Pff in that proceeding may fail to satisfy the tribunal that defences were soundly based (obvious barrier to success in later action)  solicitor argue that limitation defence was not a good one. No issue estoppel because different parties). Can DEFENDANT be joined? (Extra circumstances) Here, (defendant) can be joined because, _______. • Doubt as to the person from whom plaintiff is entitled to relief or respective amounts for which each may be liable: r65(2)(a) E.g. In a building dispute – whether it is the builders, architects, engineer, soil tester fault. OR • Damage or loss caused to plaintiff by more than one person (regardless of factual connection between claim apart from the involvement of the applicant): r65(2)(b) E.g. Examples: • Crash NB. If there is doubt as to respective amounts for which defendants may be liable. It is imperative to effect the joinder if any such doubt because plaintiff risks what is sometimes referred to as ‘falling between two stools’ as would be possible that different views could be taken in each proceeding as to the extent of the damage done in each eg. accident, so that plaintiff could in fact recover only a small part of her total loss (as different parties are involved no estoppel would arise as a result of whichever matters proceeded to trial first). JOINT AND SEVERAL LIABILITY A promise made by two or more persons is construed as a promise made jointly and severally: s54 PLA. Persons liable jointly and severally need not be all joined: r64(1) Therefore on judgment being obtained against one jointer contractor, the other remains liable until a discharge of the judgment has occurred. HOWEVER: Persons liable jointly but no severally under a contract – court may stay proceedings until both are joined: r64(2). CAN PARTIES OBJECT TO JOINDER A party can object to the joinder by applying for an order under r69(1)(a).Must demonstrate that joinder was improperly or unnecessary or ahs ceased to be appropriate: r69(1)(a). It will be decided in the form of an interlocutory application: Cameron v Hogan. JOINER OF ACTIONS Plaintiff/Applicant may include in the same proceedings as many causes of action as the Plaintiff has against the defendant/respondent: r60(1). 5 However only if one of the following is satisfied: r60(2).  a common question of law or fact may arise in all the proceedings; or (SAME AS ABOVE in Joinder of Parties)  the same transaction or even or series of transactions or events; or (SAME AS ABOVE in Joinder of Parties)  the court gives leave either before or after the start of the proceeding. (IF there is a reason why the court considers that joinder is appropriate – common sense part, give reason  satisfy). ADDITION, SUBSTITUTION AND REMOVAL OF PARTIES Court may add, subtract, and remove parties at any stage: r69(1). • Where incorrect parties before the court can determine proceedings in any case: r67 • Stay of proceedings or separate trials where combination inconvenient: r68 Eg. Started appropriately, new body of evidence going to be waste to some parties then separate trials to avoid delay/inconvenience. PARTICULAR PARTIES IF GOVERNMENT DEPARTMENT: s8 Crown Proceedings Act A claim by or against the crown, may be made and enforced by a proceedings against the crown under the title ‘State of Queensland’: s8(1) Crown Proceedings Act. IF UNDER LEGAL INCAPACITY (e.g. minor): r93 A person under a legal incapacity (young person (Sch 4 Pt 1) or disabled (not capable of making decision required of a litigant for the conducting of proceedings) may commence proceedings thorough a litigation guardian: r93. Litigation guardian not be under a legal incapacity and have no interest in the proceedings adverse to the interest of the person under the legal incapacity: r94. Need written consent of the person with the legal incapacity must be filled in the registry: r95(1). Miscellaneous Rules about responsibilities and application of rules to them: r96, r97, r98, r99. IF PARTNERSHIP: r83, 85 Proceedings against partners may be taken against the partnership name at the date the course of action accrued: r82. The words (a firm) should appear after the partnership name to make it obvious that the plaintiff is suing the partners in the name of the partnership: J M Glassell & Co 83 Proceeding in partnership name (1) Two or more partners may start a proceeding in the partnership name. (2) A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name. (3) The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose. (4) For a partnership registered under the Partnership (Limited Liability) Act 1988,18 the name of the partnership when the cause of action arose is the name in which the partnership was registered when the cause of action arose. (5) Unless the court orders otherwise, a partnership proceeding must continue in the partnership name and not in the name of the individual partners. Notice of intention to defend may only be filed in the partner’s individual name: r 85(2) (despite an originating process against partnership, NOITD must not be filed in partnership name: r 85(1)). And all that is needed to prevent default judgment is a notice from one partner: Lysaght v Clark. Defence must be given in a partnership name: r87. 6 IF BUSINESS NAME: r89, 90, 91, 92 IF bringing in business name [Business name] is not a separate legal entity whether or not the name is registered under the Business Names Act 1962 (Qld). Legal proceedings can only be brought in that name if there is a statutory authorisation of some kind to permit it to do so. Rules 89 & 90 do not apply to the bringing of a proceeding by a person in a business name. IF sole trader The rule which permits partners to start a proceeding in the partnership name only applies where there are ‘2 or more partners’. It does not apply to permit a sole trader to sue in a firm name: MAM Mortgages Ltd (in liq) v Cameron Bros (QCA) per McPherson JA. IF bringing against business name IF name registered Proceedings may be commenced against a name registered under the Business Names Act 1962: r 89. IF name unregistered Proceedings may be brought against a person in relation to a business carried on by the person under a name or style other than the person’s own name where the name is not registered under the Business Names Act 1962: r 90. 90 Proceeding in business name if unregistered If a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person’s own name and the name is not registered under the Business Names Act 1962— (a) the proceeding may be started against the person in the name or style under which the person carries on business; and (b) the name or style under which the business is carried on is sufficient designation of the person in a document filed in the proceeding; and (c) an order in the proceeding may be enforced against the person. 92 Amendment as to parties (1) This rule applies if: (a) a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person’s own name and (b) the name is not registered under the Business Names Act 1962. (2) The pff or applicant must as soon as practicable take all reasonable steps to find out the name of the persons carrying on the business under the name or style in question. (3) The plaintiff or applicant must also, as far as practicable, make amendments so the proceeding is continued against a named defendant or respondent and not in the name or style under which the business was carried on. (4) Other than for service of the originating process and for complying with this rule, until the amendments are made, the plaintiff may only take a step in the proceeding with the court’s leave. (5) An amendment for this rule must be effected under rr 382 & 384. (6) This rule applies in addition to ch 10, part 3. Notice of intention to defend must be in the name of he individual and not in the business name: r91(2). And must be accompanied by a statement as to the names and residential addresses of all those who carry on business in the business name or style: r91(3). 7 Court can set aside a notice of intention to defend of anyone who fails to comply with r91(3): r91(4). NB. • IF ‘trading as (business name)’: This is a proceeding against the individual rather than whoever happens to be carrying on the business, and addition of trading name in this way may be regarded as a ‘confusing and irrelevant addition’: Srbecky v Bess per McGill DCJ. IF EXECUTORS, ADMINISTRATORS, OR TRUSTEES: r71, 72, 73 Death at start: If defendant/respondent dies during proceedings, then originating proceeding is to name the defendant/respondent as ‘Estate of
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