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Joinder Permissive Joinder of Parties  All parties may join in a proceeding, whether as P or D, who are necessary and proper for the final resolution of the dispute.  Joinder arises before proceedings commence.  O9.R2(a) SCR – P’s can join together where bound by same right arising out of a transaction/ series of transactions and if separate trials were held would be a common question of law or fact.  O9.R2(b) SCR – P‘s can join together where the court gives leave 

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Payne and Ors v Young and Ors (1980 HCA) o 7 Ps, each owned an abattoir o Regulations in place that every animal slaughtered needed to be inspected and inspection fees paid. o Inspection fees paid varied for each P and each P paid different inspectors o One of Ps realised the inspection fees were invalid o Ps joined together to sue Ds together, relying on O9R2a o D’s argued elements of O9R2a not met as not the same series of transactions, but different transactions o Ds succeeded in this argument Bishop v Bridgeland Securities (FCA 1990) o P sue D for negligent misrepresentation (bad advice) o Concerned a letter from D to 2014 people including Pall those who received the letter did not satisfy the O9R2a requirement. BUT court has general discretion under O9R2b. o Principle of courts general discretion O9R2b) – take a course of action most conducive to a just result. o Leave should not e granted if it would result in any unfairness. o In determining any unfairness:  Any differences in the evidence any parties will rely upon  The sheer number of claims would pose an unfair burden on the D  It would be advantageous to determine all matters simultaneously Joint Ps must join in class (e.g. BOC and joint purchasers)  gives rise to one COA. Both must join for it to be proper If one doesn’t want to join then they become a D. S 29 CPA and O1R14SCR – get all issues resolved in one proceedings.

Addition/ Substitution of Parties O9.R2: Permissive joinder of parties. Two or more persons may be joined as plaintiffs or defendants in any proceeding— (a) where— (i) some common question of law or fact; and (ii) all rights to relief claimed arise out of the same transaction or series of transactions; or (b) where the Court, before or after the joinder, gives leave to do so. O9.R6 Addition, removal, substitution of party At any stage of a proceeding the Court may order that—

(a) remove anyone who is not proper or necessary party (b) add any party (i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or (ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; (c) substitution: a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies. O9.R11: proceeding against new D commences from date of amendment, all previous actions taken to have affect on new D. Therefre if statute barred can’t do it. O36.R1: gives the court the power amend or give leave for amendment of any document to (a) Determine the issues between the parties (b) Correct any defect or error in proceedings (c) Avoid multiplicity of proceedings O36.R4+5: – an order correcting the name of a party can have the effect of substituting, and the substitution takes effect from the commencement of proceedings (thus overcoming statute barring). 2. Aon Risk Services v ANU (HCA) remarked that O36 does not provide unfettered discretion of court to allow for amendments. Interests of justice must consider the efficient operation of the court system and what effect it will have on other litigants/ cases. If amendment would result in prejudice then a sufficient explanation as to why there is a need for amendment that could not have been overcome earlier may be required. The merits of the intended amendment not sufficient to allow for leave.

Mandatory Joinder: O9.R3: where other P entitled o relief or has a claim and refuses to join as P, will be joined as D.

Joinder of Claims O9.R1: P can join claims together against same D regardless of the capacity. O9.R4: This can be rebutted if joinder would delay proceedings or cause prejudice. Court can order separate trials, excused for part of a proceeding, awarded costs for having to attend a part of a proceeding. Counter claims: O10.R1+3: counterclaim joins the issues together. O13.R14: D can use debt owed to them as a defence/ counter claim, whether or not the D uses it as a counterclaim

Consolidation of Trial O9.R12: where two or more proceedings awaiting trial court can order them be heard together where (a) some common question of law or fact; (b) arise out of same transaction or series of transactions; (c) for any other reason the court deems desirable to make the order. Class Actions S 33C SCA: one person may sue on behalf of a class if: 1. 7 or more P’s sueing same D 2. The class of Ps all arise out of the same, similar or elated circumstnces 3. Claims give rise to a common question of law or fact Wong v Silkfield HCA: test for same class is that a substantial issue (s 33C) is “real” and “one of substance”

Representative proceedings (a) Introduction and Historical View of Representative Proceedings: In this part, we look at the situation where one person is suing on behalf of himself/herself/itself and a number of others. The plaintiff is said to be “representing” them. It is different to the topic of ‘joinder’ of plaintiffs which we examined earlier. With a joinder, plaintiffs A, B and C ‘join’ together in the originating process. Each is named as plaintiff. By contrast, in a truly representative action, there is the one or two plaintiffs suing on behalf of themselves and an identified or identifiable class of others who have the “same interest” in the proceeding. Representative proceedings have however, in the past, applied in very narrow circumstances. In Duke of Bedford v Ellis [1901] AC 1 at 8 Lord MacNaghten stated the 3 conditions that had to be satisfied for a representative proceeding: 1. There must be a common interest; 2. There must be grievance; and 3. The relief sought must be beneficial to all parties who are represented by the representing party. As Markt & Co v Knight Steamship Co Ltd [1910] 2 KB 1021 shows, the courts interpreted strictly the requirement that the representing plaintiff and the “class” have the same interest. It was held in that case that there needed to be an “identical interest” between them with respect to each element of the cause of action pleaded and the relief or remedy sought. Accordingly, a representative action could not be brought where the individual claims of the representing plaintiff and the class arose out of contracts entered into by each separately with the defendant(s), or where the remedy sought was damages and the amount to be recovered by each member of the class had to be ascertained separately. English courts have taken a more flexible approach in recent times with respect to the above matters. (see Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229 and Irish Shipping Ltd v Commercial Union Assurance Co Pty Ltd [1990] 2 WLR 117)

(b) Representative Proceedings Today As a result of Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, r 18.02 has been interpreted much more broadly with respect to the term “same interest”. The High Court stated that the rule has to be interpreted in light of its obvious purpose, namely, to facilitate the administration of justice by enabling parties having the “same interest” to secure a determination in one action rather than separate actions....