Joinder of causes of action and parties

[2-3400] Causes of action

A plaintiff may join more than one cause of action when:

  • he or she sues in the same capacity and claims the defendant to be liable in the same capacity in respect of each cause of action: UCPR r 6.18(1)(a),

  • he or she sues as an executor or administrator in respect of one or more causes of action and in his or her own capacity with reference to the estate of the same deceased person in respect of the remaining causes of action: r 6.18(1)(b),

  • he or she claims the defendant to be liable as executor or administrator in respect of one or more causes of action and in his or her own personal capacity in relation to the estate of the same deceased person in respect of the remaining causes of action: r 6.18(1)(c), or

  • the court grants leave for all the causes of action to be dealt with in the same proceedings: r 6.18(1)(d). Leave may be granted before or after the originating process is filed: r 6.18(2).

[2-3410] Common question

Two or more persons may be joined as plaintiffs or defendants if separate proceedings by or against each of them would give rise to a common question of fact or law (r 6.19(1)(a)), and all rights of relief claimed are in respect of, or arise out of, the same transaction or series of transactions: r 6.19(1)(b). They may also be joined if the court gives leave for them to be joined: r 6.19(1). That leave may be granted before or after the originating process is filed: r 6.19(2). The power to grant leave is not limited by the conditions stated in r 6.19(1)(a) or (b): CGU Insurance v Bazem Pty Ltd [2011] NSWCA 81.

Rule 6.19 applies only to joinder by the plaintiff and, when some relief is sought by the plaintiff, against the proposed new defendant: Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 at 503.

[2-3420] Joint entitlement

Unless a court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for relief that is made by any one or more of them: r 6.20(1).

Unless a court orders otherwise, such a person is to be joined as a plaintiff if he or she consents to be a plaintiff, otherwise as a defendant: r 6.20(2).

A person may not be joined as a party to proceedings in contravention of any other Act or law: r 6.20(3).

A person is not to be joined as a plaintiff except with his or her consent: r 6.25.

[2-3430] Joint or several liability

A person who is jointly or severally liable with some other person need not be a defendant merely because the other person is the defendant in the proceedings: r 6.21(1).

In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort or under an Act or statutory instrument, the court may order that the other persons may be joined as defendants and that the proceedings are stayed until the other persons have been so joined: r 6.21(2).

[2-3440] Separate trials

If the court considers that the joinder of parties or causes of action may embarrass, inconvenience or delay the conduct of the proceedings, it may order separate trials (r 6.22(a)) or make such other order as it thinks fit: r 6.22(b).

[2-3450] Generally

Proceedings are not defeated merely because of misjoinder or non-joinder of parties: r 6.23.

The court may order that a person be joined as a party if it considers that the person ought to have been joined or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings: r 6.24(1). In proceedings for the possession of land, the court may order that a person in possession of any part of the land, whether in person or by a tenant, be added as a defendant: r 6.24(2).

A relevant occupier of land, whose occupation the plaintiff seeks to disturb, must be served with the originating process: rr 6.8(1)(b), 36.8. With the originating process must be served a notice that the occupier may apply to the court for an order that the occupier be added as a defendant and that, if the occupier does not so apply within ten days after service, the occupier may be evicted under a judgment entered in the occupier’s absence: r 6.8(1)(b)(i)–(ii), Form 5.

Except to the extent to which the rules expressly provide, a party may not join another person as a party for the purpose of making an application for costs against that person: r 6.26(1). The rule does not apply if the other person would otherwise be a proper party or if the party joins that person by means of cross-claim in respect for a claim for costs against the party.

A person who is not a party may apply to the court to be joined as a party either as a plaintiff or defendant: r 6.27.

If the court orders that a person be joined as a party, the date of commencement of the proceedings in relation to that person is the date on which the order is made or such later date as the court may specify in the order: r 6.28.

[2-3460] Removal of parties

The court may order that a person be removed as a party if that person has been improperly or unnecessarily joined or has ceased to be a proper or necessary party: r 6.29.

Proceedings do not abate as a result of a person’s death or bankruptcy if a cause of action in the proceedings survives: r 6.30(1). If a cause of action survives, and the interest or liability of a party passes to some other person, the court may make orders as it thinks fit for the joinder, removal or rearrangement of the parties: r 6.30(2).

Where a party dies but the cause of action survives and an order for the joinder of a party to replace the deceased person is not made within three months after the death, the court may order that the proceedings be dismissed unless an application to join a party to replace the deceased party is made within a specified time: r 6.31(1) and (4).

Application may be made by any person to whom the deceased party’s liability in relation to the cause of action concerned has passed: r 6.31(3).

[2-3470] Future conduct of proceedings

Where a court has made an order for the joinder of causes of action or parties or for the removal of parties, it may make such orders as it thinks fit for the future conduct of the proceedings: r 6.32.

If the court orders the substitution of one party for another, all things previously done in the proceedings have the same effect in relation to the new party as they had in relation to the old, subject to any order of the court: r 6.32(2).

[2-3480] General principles

As to the many issues that may arise in individual cases on the question of joinder, see the discussion and the cases cited in Ritchie’s [6.18.5]–[6.32.10] and Thomson Reuters [r 6.18.20]–[r 6.32.1000]. What follows is a consideration of some selected problems.

[2-3490] Leave

Where a discretion to grant leave is available, the court “should take whatever course is most conducive to a just resolution of the dispute between the parties, but having regard to the desirability of limiting so far as practicable, the costs and delay of the litigation”: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ASC ¶56-033 per Rogers CJ in Comm Div.

[2-3500] Joint entitlement

A person, jointly entitled, who has declined to consent to being joined as a co-plaintiff and has been joined as a defendant, is entitled to indemnity from costs and may be entitled to security for costs: Rajski v Computer Manufacture and Design Pty Ltd [1981] 2 NSWLR 798.

[2-3510] Inconvenient joinder

The court has a wide discretion to make a suitable order, including one for separate trials. Although the applications may be made as late as at the trial (Thomas v Moore [1918] 1 KB 555 at 569), delay in making the application can be a relevant factor, especially under the present procedures. The ultimate onus is on the plaintiff to justify the joinder: Saccharin Corp Ltd v Wild [1903] 1 Ch 410 at 424. The interests of all parties are to be considered in the exercise of the discretion.

[2-3520] Misjoinder

While misjoinder or non-joinder do not defeat proceedings the court may, in appropriate circumstances, determine issues in proceedings notwithstanding the non-joinder or misjoinder of parties: Finance Corp of Australia v Bentley (1991) 5 BPR 11,883. However a person who has not been joined as a party and is affected by orders made in the proceedings will generally be entitled to have them set aside: Taylor v Taylor (1979) 143 CLR 1 at 4.

[2-3530] Misnomer

An amendment will usually be granted to rectify an error in the name of a party as opposed to the situation where what is proposed is the substitution of one defendant for another. Limitation issues do not arise in the case of mere misnomer: J Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441.

[2-3540] Parties that ought to be joined or are “necessary for the determination of all matters in dispute”

“All matters in dispute” includes ancillary or preliminary questions: Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34 at 38. Matters are not “effectually and completely ‘adjudicated upon’ unless … all those who would be liable to satisfy the judgment are given an opportunity to be heard”: Gurtner v Circuit [1968] 2 QB 587 per Diplock LJ at 602–603.

The test of what is a sufficient ground to entitle a person to be added as a party was expressed by the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 56 as follows:

Will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?

The breadth of the discretion under the rule is demonstrated by the cases cited in Ritchie’s at [6.24.25] and Thomson Reuters [r 6.24.40]. These cases make it clear that the test in Pegang Mining, above, is not exhaustive.

Where no order is sought against a defendant, it will generally be held that the joinder is not necessary and should not be made: Vandervell Trustees Ltd v White [1971] AC 912 at 944. However, for an unusual case and a discussion of the phrase “matters in dispute”, see Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278.

Unless a proposed defendant is a person who ought to have been joined according to the rules, a plaintiff will generally succeed in opposing an application that that person be added as a defendant, however, see Ritchie’s at [6.24.35].

[2-3550] Sample orders

Note:

Depending upon the circumstances a range of directions may also need to be given.

Rules

  • UCPR rr 6.8–6.32, r 36.8