ABB Service Pty Ltd v Hetherington & Anor [2001] WASCA 417

Silkline Investments Pty Ltd & Ors v Challenge Ltd, unreported; SCt of WA (Master Sanderson); Library No 980610; 22 October 1998

Southern Cross Pipelines Australia Pty Ltd v Michael [2002] WASC 171

Vandervell Trustees Ltd v White & Ors [1971] AC 912

1 WHEELER J: By a chamber summons dated 25 October the plaintiffs seek orders that certain plaintiffs underlined red in the minute of amended writ of summons dated 25 October be added as plaintiffs in the action. Although it is not clear from the face of the chamber summons, the plaintiffs specified in argument before me that the addition was sought pursuant to O 18 r 6 of the Rules of the Supreme Court ("RSC"). Further orders are sought to the effect that certain actions be consolidated with this action and that the minute of statement of claim dated 25 October 2002 stand as the statement of claim. As I understand it, those other orders are not controversial. The defendants, however, oppose the addition of any of the proposed plaintiffs.

2 The basis of the defendants' opposition is as I understand it twofold. First, it is submitted that it would simply be more convenient for the persons named to issue a fresh writ, which writ could itself be consolidated with this action. It is submitted that because those persons could issue fresh proceedings, their addition in the present proceedings in the manner proposed is not "necessary" to ensure that all matters in dispute are effectively and completely determined, so that the jurisdiction to make an order pursuant to O 18 r 6 does not arise (relying upon WMC Resources Ltd v Southern Cross Pipelines [2002] WASCA 308).

3 More importantly perhaps, the defendants submit that while there is authority to suggest that where a defendant is added pursuant to O 18 r 6 the joinder does not "relate back" to the date of the writ, there is no clear authority to the effect that the position is the same when a plaintiff is joined. It is submitted therefore that there is a risk that the addition of certain of the proposed plaintiffs would have the effect of permitting those plaintiffs to avoid relevant periods of limitation which may be applicable to their claims. The defendants referred briefly to the proposed pleading in relation to those plaintiffs in order to demonstrate that there was at least an arguable case, in relation to certain of them, that relevant periods of limitation had long since expired. I accept that there is an arguable limitation issue in relation to at least certain of those plaintiffs.

4 As to the limitation argument, I am unable to accept that it is arguable that, pursuant to the RSC, the addition of a plaintiff whose cause of action is statute barred to an existing action can have the effect of permitting that plaintiff to overcome a limitation provision relating to his or her cause of action. In my view, there is no reason for distinguishing between plaintiffs and defendants in that way.

5 The laws relating to limitation of damages are rules of substantive law: Pfeiffer v Rogerson [2000] HCA 36; 203 CLR 503. As I observed in Morgan v Banning (1999) 20 WAR 474 at 483, the court has no power to override a limitation period for which a statute provides, whether by a procedural rule of "relation back" or otherwise. That is the position in my view whether the party sought to be added is a plaintiff or a defendant.

6 Consistently with that view, O 18 r 6 does not distinguish between the addition of a plaintiff or a defendant, and O 18 r 8(4) expressly provides that where a person is to be added as a party a person shall not become a party until "(a) Where the order is made under r 6, the writ has been amended in relation to him under this rule ... ". It is true, as counsel for the defendants points out, that O 18 r 8(4) goes on to provide that where a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they have in relation to the old. However, different considerations may arise in respect of a substitution, which may be sought for a number of reasons. The present is a case of addition of plaintiffs, not a substitution of them.

7 In my view, the law is correctly stated in Brandsma and Crockett v Heindal [2002] WASCA 96. At [5], Murray J observed of O 18 r 6 that, so far as the addition of parties was concerned:

""Clearly the intention is that in a case where that is the proper characterisation of what is sought, that is the power which should be used, the deletion and joinder of a party taking effect from that date, thereby preserving any limitation defence. Generally under those circumstances the joinder would be refused as serving no useful purpose: Ketteman v Hansel Properties Ltd [1987] AC 189."

McLure J noted that, following joinder pursuant to O 18 r 6:

"The joinder of a party under this Order takes effect from the date of service of the originating process upon the newly joined party [citing inter alia Morgan v Banning, Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 221, and Ketteman v Hansel Properties Ltd [1987] AC 189]."

Of course, service is required only in relation to defendants; so far as plaintiffs are concerned the addition of a plaintiff takes effect from the date of amendment of the writ.

8 The defendants urge that notwithstanding the authorities to which I have referred, and what appears to me to be the clear underlying principle upon which those authorities rest, the question is nevertheless an open one. The defendants refer to Mabro v Eagle Star and British Dominions Insurance Co Ltd [1932] 1 KB 485, in which the Court of Appeal held, as the headnote reveals, that the court will not allow a person to be added as a plaintiff to an action if thereby the defence of the statute of limitations would be "defeated". The defendants point out that that case has been cited, apparently with approval, in this Court in McLeod v WA Trustee Executor and Agency Company [1951] WALR 4 and more recently in decisions in Victoria and the Northern Territory in Patterson v Richards [1963] VicRp 29; [1963] VR 179 and Timor Transport Pty Ltd v Murlroam Pty Ltd [1992] NTSC 61; (1992) 110 FLR 53.

9 There are I think only two observations which it is necessary to make about those cases. The first is that it is correct to say that it is a rule of practice not to permit a person to be joined as plaintiff if the limitation period has clearly expired in relation to that person. To do so would be unnecessarily to complicate proceedings by adding a party whose claim could not succeed. As the House of Lords held in relation to the addition of defendants, the addition of a party against whom an action is clearly statute barred, would serve "no useful purpose": Ketteman v Hansel. To the extent that references in those cases suggest that it is open to the court somehow to "defeat" a limitation period by permitting the addition of a party, it is my view that those observations reveal the same confusion about the relationship between the rules of court and statutes of limitation which I discussed in Morgan v Banning, and that they are inconsistent with current authority in this Court.

10 More persuasively, the defendants refer to the observations of Owen J in Woodings v Stevenson at 227. His Honour said at [25]:

"While it is not necessary for the decision in this case, I should also say that I have grave doubts whether the rule [O 18 r 6] would apply where the relevant limitation period had expired."

That is an observation which has given me some difficulty. However, it is to be noted that in Woodings v Stevenson, Owen J was concerned not with the addition of a party but with the substitution of a party. It may be that his Honour's observation arose out of the apparent effect of O 18 r 8 in relation to a substituted party, to the effect that "all things" in the proceedings before the making of the order "have effect" in relation to the new party. If one understood this portion of the rule as encompassing the proposition that the original issue of the writ, on whatever date it issued, "had effect" in relation to the substituted party, then one can see the cause for concern. Any order of the court purporting to have that effect would in my view simply be beyond power. Otherwise, it is not clear to me why his Honour might have taken the view that the rule is inapplicable where the relevant limitation period has expired. As explained in Ketteman v Hansel in relation to defendants, where the limitation period clearly has expired there would be no utility in adding a plaintiff pursuant to the rule, but that is not to deny the existence of the power.

11 In my view, a consideration of both principle and of recent authority in this Court, and of the terms of O 18 r 6(2)(b) in conjunction with r 8(4)(a) leads to the conclusion that it is open to the Court to add a party notwithstanding that it is arguable that the limitation period has expired in respect of that party. The addition of the party takes effect from the date of amendment of the writ or, if the person is a defendant, from the date of service of the amended writ on the defendant. Any limitation defence in respect of the person or persons added is thereby preserved.

12 It was accepted on behalf of the defendants that only in the clearest cases will limitation defences be determined on an interlocutory basis: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514. It seems therefore to have been common ground in relation to this application that I should not attempt to determine in relation to any particular plaintiff whether the limitation period had so clearly expired that it would be futile to join that proposed plaintiff.

13 However, the anterior question still exists as to whether, given that the proposed plaintiffs could institute fresh proceedings, it is "necessary" to add to them so as to enliven the jurisdiction pursuant to O 18 r 6. The defendants point to WMC Resources v Southern Cross Pipelines as authority for the proposition that the question to be asked is whether the rights of the proposed parties against, or the liabilities of the proposed party to, any party to the action, in respect of the subject matter of the litigation, will be directly affected by any order made in the proceedings (Wallwork J at [60] and Parker and Templeman JJ at [71]). It is true that that is the test which was applied in WMC Resources. However, it was the only test which it was necessary to apply, since the court reached the conclusion that the appellant's rights in that case could be directly affected by any order made in the relevant proceedings.

14 It is to be noted that all members of the Court in WMC Resources relied upon Homestyle Pty Ltd v City of Belmont [1999] WASCA 59. In that case, Templeman J [at 30] expressed the view that the test to be applied in considering the joinder of a party is that stated by Lord Diplock in Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52, 55 - 56. In that case his Lordship's opinion read, relevantly:

"The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships' view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for flexibility of approach which makes it undesirable ... to attempt to lay down any general proposition which could be applicable to all cases."

15 That is a much broader understanding of the rule, and it appears to me to be consistent with the views of Owen J in Woodings v Stevenson, who considered that it was appropriate to give O 18 r 6(2) a beneficial interpretation and afford to it the widest interpretation which its language would permit. In that case, Owen J accepted that the party that it was sought to substitute could commence a fresh action but did not consider that that meant that it was not "necessary" to substitute that party. His Honour observed that the phrase "necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon" was wide enough to encompass "modern notions of case management and the desire of the justice system to minimise time and costs in litigation" (at [24]). In my view, those observations are applicable in this case.

16 This case is pleaded in a somewhat unusual way. There is a detailed pleading setting out in chronological order a very large number of events and circumstances. It is said that at the earliest time in that chronology the defendants had, or should have had, certain knowledge. However, it is also pleaded that additional facts and circumstances which occurred later in time added to or reinforced the knowledge of the defendants. The identity of the particular plaintiffs is found in a large number of schedules which identifies them and sets out the times of relevant transactions in relation to them. It is obviously desirable for additional plaintiffs to be encompassed within this scheme. Separate actions in respect of them would be difficult to manage, while requiring them to issue fresh writs and then to consolidate would in my view only add unnecessary time and cost to the action. It is therefore, in my view, "necessary" as Owen J explained it, to add those plaintiffs.

17 I would therefore make orders in terms of pars 1, 2 and 3 of the plaintiffs' chamber summons for orders adding plaintiffs, leave to amend writ and to consolidate actions dated 25 October 2002. So far as the question of a defence is concerned, I would hear from the defendants in relation to an appropriate time for filing and serving of a defence. I otherwise adjourn the directions hearing to a date to be fixed and order that the costs of this application be costs in the cause.