Rules of the Supreme Court 1971 (WA), O 18 r 6(2), O 21 r 1

Bainbridge v Lawton [2002] WASC 293

Elovalis v Elovalis [2008] WASCA 141 (S)

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Hunter Automotive Group Pty Ltd v Range Motors Pty Ltd [2021] WASC 122

Mighty River International v Bryan Hughes and Daniel Bredenkamp (as Deed Administrators of Mesa Minerals Ltd) [2017] WASC 203

News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410

North West Pilots Pty Ltd as Trustee for the Port Hedland Pilots Unit Trust t/as Port Hedland Pilots v Daniel [2023] WASCA 122

North West Pilots Pty Ltd as Trustee for the Port Hedland Pilots Unit Trust t/as Port Hedland Pilots v Daniel [No 2] [2023] WASC 98

Oswal v Yara Australia Pty Ltd [No 2] [2011] WASC 146

Resource Equities Limited v Western Ventures Pty Ltd [2004] WASCA 242

Rosebridge Nominees Pty Ltd v Commonwealth Bank Australia [No 6] [2014] WASC 203

Saffari v The State of Western Australia [2024] WASCA 77

Stewart v Hames [2019] WASCA 127

Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460

Wurth Australia Pty Ltd v Burgess [2012] WASC 504

1. The appellant plaintiff, Gabriel Hasib Harfouche brings proceedings against the first defendant, Antonius Tjipke Meinen (Mr Meinen) and the respondent second defendant, the State of Western Australia (State) for malicious prosecution and collateral abuse of legal process with the related alleged personal injury, loss and damage sustained by the plaintiff not being apparent before 30 November 2021.
2. By chamber summons filed 26 September 2024 (amended on 29 October 2024 and further amended on 10 December 2024), the plaintiff filed an application for leave to amend the writ to add a number of causes of action against and join a proposed second plaintiff, Mr James Harfouche,[1] and a proposed defendant, the Commissioner of Police (Commissioner) to the action. There are a number of iterations of the proposed amended writ and indorsement, with the latest version being filed on 10 December 2024 (Fifth Proposed Amended Writ). The existing writ in the proceedings is the writ of summons filed 28 December 2023 (Amended Writ).
3. The application proceeded to hearing on 29 August 2025. The State opposed the application and elected to participate in the hearing of the application.
4. By order of the learned registrar made on 22 September 2025, the application for joinder was refused.
5. By notice of appeal filed 30 September 2025 (amended 1 October 2025), the plaintiff appeals against the learned registrar's decision refusing the plaintiff leave to file and serve an amended writ of summons which added the Commissioner as a defendant.
6. For the reasons set out below, the appeal should be dismissed.

1. On 24 September 2023, the appellant plaintiff, Gabriel Hasib Harfouche filed a writ of summons in the District Court of Western Australia, commencing action CIV 4745 of 2023 against the first defendant, Mr Meinen and the second defendant, the State.

The material matters pleaded in the plaintiff's Amended Writ

1. On 28 December 2023, the writ of summons was amended. The Amended Writ is the existing writ in the proceedings. The plaintiff, in the indorsement to the Amended Writ alleges as follows as against Mr Meinen:
   1. The plaintiff's claim is for loss and damages arising from the prosecution of the plaintiff by Mr Meinen, a police officer, for an offence arising out of an alleged incident on 24 November 2015.
   2. On or about 22 May 2017, that charge was dismissed for want of prosecution.
   3. On or about 23 February 2019, Mr Meinen commenced a prosecution against the plaintiff for an offence against s 317(1) of the Criminal Code (WA), arising out of the same alleged incident on 24 November 2015.
   4. On or about 30 September 2020, the prosecution that had commenced on or about 23 February 2019 was terminated in favour of the plaintiff.
   5. Mr Meinen commenced and thereafter maintained the prosecution commenced on or about 23 February 2019 without reasonable and probable cause, motivated by malice and/or for a collateral purpose.
   6. The plaintiff has suffered injury, loss and damage by reason of the conduct of Mr Meinen.
2. The plaintiff, in the indorsement to the Amended Writ alleges as follows as against the State:
   • The State is vicariously and/or solidary liable for the conduct of Mr Meinen including malicious prosecution and collateral abuse of process.
3. The plaintiff, in the indorsement to the Amended Writ claims damages, interest and costs against both Mr Meinen and the State.
4. The Amended Writ was not served on either Mr Meinen or the State until sometime later.[2]
5. On 9 August 2024, a conditional appearance was entered on behalf of the State and on 19 September 2024 an appearance was entered on behalf of Mr Meinen.

Application to join a second plaintiff and the Commissioner and leave to amend the writ

1. On 26 September 2024, the plaintiff filed a chamber summons seeking leave to amend the Amended Writ. On 29 October 2024, the plaintiff filed an amended chamber summons. By its application, the plaintiff sought leave to add a number of causes of action and to join Mr James Harfouche as a second plaintiff and the Commissioner as a defendant to the proceedings.
2. On 10 December 2024, the plaintiff filed a minute of further amended chamber summons for leave to amend the chamber summons filed on 26 September 2024 and the Fifth Proposed Amended Writ. The Fifth Proposed Amended Writ is the most recent version of the proposed writ in these proceedings.

The material matters proposed to be pleaded in the Fifth Proposed Amended Writ

1. The plaintiff, in the Fifth Proposed Amended Writ seeks to allege as follows as against Mr Meinen:

(a) that Mr Meinen was at all material times an Officer of the Western Australia Police Service;

(b) that Mr Meinen prosecuted the plaintiff and Mr James Harfouche, without reasonable and probable cause, on or about 23 February 2019 (Renewed Charge) after an earlier charge, based on similar facts, was dismissed for want of prosecution or otherwise terminated on or about 22 May 2017;

(c) in or about August 2019, the Renewed Charge and related prosecution was terminated in favour of Mr James Harfouche with the related personal injury, loss and damage sustained by Mr James Harfouche not being apparent before 30 November 2021;

(d) on or about 30 September 2020, the Renewed Charge and related prosecution was terminated in favour of the plaintiff with the related personal injury, loss and damage sustained by the plaintiff not being apparent before 30 November 2021;

(e) the respective termination of the Renewed Charge and related prosecution of the plaintiff and Mr James Harfouche gives rise to claims against Mr Meinen for malicious prosecution, misfeasance in public office and collateral abuse of legal process; and

(f) the plaintiff and Mr James Harfouche both sustained personal injuries, loss and damage flowing from the Renewed Charge and related prosecution by Mr Meinen.

(as a result of which) the plaintiff claims damages, interest and costs.

1. Further to the above matters, the plaintiff, in the Fifth Proposed Amended Writ seeks to allege as follows as against the Commissioner:

(a) under the Police Act 1892 (WA) the State vests management and control of officers of the Western Australia Police Service in the Commissioner;

(b) the Commissioner prosecuted the plaintiff after an earlier charge, based on similar facts, was dismissed for want of prosecution or otherwise terminated on or about 22 May 2017;

(c) the Renewed Charge and related prosecution give the plaintiff and Mr James Harfouche respective claims in negligence against the Commissioner (and/or the State), arising at common law and/or the Civil Liability Act 2002 (WA), owing to the acts of the Mr Meinen and/or the omissions of the Commissioner;

(d) the Commissioner, in connection with the Renewed Charge, was negligent in that the Commissioner directly and respectively owed the plaintiff and Mr James Harfouche a duty of care to avoid foreseeable risks of harm to the plaintiff and Mr James Harfouche, and breached that duty, in circumstances where the Commissioner knew or ought to have known that Mr Meinen's malicious prosecution, collateral abuse of legal process, and misfeasance in public office directed towards the plaintiff and Mr James Harfouche could result in the plaintiff and Mr James Harfouche suffering personal injury, loss and damage respectively; and

(e) the plaintiff and Mr James Harfouche both sustained personal injuries, loss and damage flowing from the Renewed Charge and related prosecution by the Commissioner,

(as a result of which) the plaintiff claims damages, interest and costs.

1. Further to the above matters, the plaintiff, in the Fifth Proposed Amended Writ seeks to allege as follows as against the State:

(a) under the Police Act the State vests management and control of officers of the Western Australia Police Service in the Commissioner;

(b) pursuant and subject to the Crown Suits Act 1947 (WA) the State may have court proceedings taken against it;

(c) the State prosecuted the plaintiff and Mr James Harfouche, without reasonable and probable cause, on or about 23 February 2019 (Renewed Charge) after an earlier charge, based on similar facts, was dismissed for want of prosecution or otherwise terminated on or about 22 May 2017;

(d) the Renewed Charge and related prosecution give the plaintiff and Mr James Harfouche respective claims in negligence against the State arising at common law and/or the Civil Liability Act, owing to the acts of the State; and

(e) the State, in connection with the Renewed Charge, is indirectly (vicariously) liable for the negligence of the Commissioner or, in the alternate, the State is directly liable for the malicious prosecution of the plaintiff and Mr James Harfouche respectively,

(as a result of which) the plaintiff claims damages, interest and costs.

1. On 29 August 2025, the application proceeded to hearing before Registrar Nunn. On 22 September 2025, the learned registrar delivered his reasons for decision. The learned registrar:

(a) refused to join the Commissioner and Mr James Harfouche to the existing proceedings;

(b) granted the addition of a cause of action against the first defendant, namely, misfeasance in public office;

(c) granted the addition of a cause of action in negligence against the second defendant based on the vicarious liability of the Commissioner; and

(d) refused the addition of a cause of action for direct liability from malicious prosecution against the second defendant,

and otherwise made orders requiring the plaintiff to file and serve a further minute of proposed amended writ of summons in the terms permitted by the reasons for decision delivered on 22 September 2025 by 24 October 2025.

1. No further minute of proposed amended writ of summons has been filed by the plaintiff subsequent to the orders made by the learned registrar on 22 September 2025 and the Fifth Proposed Amended Writ remains the existing writ on the court file.

1. By notice of appeal filed 30 September 2025 the plaintiff appeals against the registrar's decision. By an amended notice of appeal filed 1 October 2025, the plaintiff appeals against the decision in the following express terms:

The appellant was denied leave to file and serve an amended writ of summons which added the Commissioner of Police as a Defendant.

1. The orders sought by the plaintiff on appeal are as follows:
   1. That the appeal be allowed.
   2. That the order of the learned Registrar made on 22 September 2025 denying the appellant leave to join the Commissioner of Police as a defendant be set aside.
   3. That the appellant has leave to file and serve an amended writ of summons which includes the adding of the Commissioner of the Western Australian Police.
   4. That the respondents pay the appellant's costs of and incidental to the appeal.
2. By notice of intention filed 13 October 2025, the State intends to take part in this appeal and will argue the registrar's decision should be upheld. Mr Meinen did not take part in this appeal (or the application before the learned registrar).
3. By affidavit affirmed 30 October 2025, the plaintiff's solicitor, Sigi Hallis Cohen relevantly deposes to the following:

(a) he is the plaintiff's legal representative in these proceedings;

(b) in respect of Order 1 of Registrar Nunn dated 22 September 2025, namely that the plaintiff file and serve a further minute of proposed amended writ of summons in terms permitted by the reasons for decision, that he seeks an order that the time for filing and service of the further minute of proposed amended writ be extended (ie minute of consent orders drafted 24 October 2025);

(c) the reasons for requesting the extension of time was that there are three listing dates that should logically be consolidated, namely: addressing the order to submit an amended sixth writ of summons by 24 October 2025; consolidation of the proceedings, and appeal of the decision;

(d) if the plaintiff is to provide a further a (sixth) amended writ of summons it is highly likely a further (seventh) amended writ of summons will be necessary following the hearing regarding consolidation and the appeal for mention, and pending resolution of the appeal; and

(e) he had major difficulties complying with the deadline for compliance with Order 1 as he was overseas from 6 October 2025 returning to work only on 24 October 2025 and that he contracted COVID during the trip that incapacitated him between 16 October and 29 October 2025.

1. The appeal proceeded to hearing on 4 December 2025. The plaintiff and the State were both represented by counsel at the hearing. The State Solicitor's Office appeared on instructions from the State only.
2. At the hearing of the appeal, both the plaintiff and the State relied on their respective written submissions dated 1 December 2025 in addition to counsel's submissions made on the day.

1. An amendment of the writ requires leave pursuant to O 21 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). The court's power to allow a plaintiff to amend its writ and to allow any party to amend its pleadings is conferred by O 21 r 5 (which is subject to O 18 r 6, O 18 r 7 and O 18 r 8).
2. It is clear that RSC O 18 r 4 does not confer power on the court to grant leave for additional parties to be joined to existing proceedings.[3]

Relevant principles relating to O 18 r 6(2)(b) of the Rules of the Supreme Court 1971 (WA)

1. The plaintiff's application is made under RSC O 18 r 6, which relevantly provides as follows:
   1. Misjoinder and nonjoinder of parties

...

(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(a) order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3) An application by any person for an order under subrule (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.

1. The legal principles regarding joinder are well established. They were considered by the Court of Appeal in Elovalis v Elovalis[4] and summarised by Corboy J in Wurth Australia Pty Ltd v Burgess.[5] Relevantly, Corboy J held:[6]

(e) The rule requires the court to consider whether the proposed parties' rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action: Pegang Mining Co Ltd v Choong Sam [1969] UKPC 16; [1969] 2 MLJ 52, 55 - 56; News Ltd v Australian Rugby Football League Ltd [1996] FCAFC 870; (1996) 64 FCR 410, 524 and Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 (Templeman J, with whom Malcolm CJ and Owen J agreed). In a passage that was cited with approval in Homestyle and more recently by the Court of Appeal in Cheng Chih Tiao v Sheng Chin Lai [No 2] [2010] WASCA 189, the Full Court of the Federal Court in News Ltd v Australian Rugby Football League observed, in relation to the test identified by the Privy Council in Pegang Mining, that (525):

The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

(f) The focus in considering an application to join a defendant is on the rights and liabilities of the proposed defendant and not on 'some looser concept of "interests"': Alinta Asset Management Pty Ltd v Essential Services Commission [2007] VSC 32 (Hollingworth J) (and see Amon at 379 and the comments of Edelman J in Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483 [13] - [14]). An order that directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party: News Ltd (524). Consequently:

Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. (News Ltd at 525).

1. The power is to be interpreted beneficially, but the test remains whether the presence of the party is necessary. That is, a party cannot be joined merely because it is thought to be just or convenient. The court must consider whether the proposed party's rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action.[7]
2. In Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2],[8] the plaintiff said the additional defendant should be joined because: (a) there is a common question of law; (b) the facts were mixed; (c) there were joint tortfeasors; and (d) RSC O 18 r 6 is wide enough to include modern case management, reduce time and costs and increase efficiency.
3. In determining that the test for necessity was not met, her Honour, Smith J observed:[9]

The plaintiff's reasons for joining the proposed additional defendant to the proceedings, are matters which simply go to convenience. This convenience does not provide the court power to join the proposed additional defendant as a party to either proposed causes of action.

The plaintiff has provided no evidence establishing that joining the proposed additional defendant as a party to the current proceedings is necessary for the 'effectual and complete determination and adjudication upon all matters' that are currently pleaded against the defendant.

(footnotes omitted)

1. As the Full Court of the Federal Court said in News Ltd v Australian Rugby Football League Ltd:[10]

It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties ...

1. The Court of Appeal in Saffari distilled the test imposed by RSC O 18 r 6(2):[11]
   1. ... The test imposed by O 18 r 6(2) of the RSC is one of necessity, the question being whether the proposed party's rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action. The rule is designed to avoid unnecessary technicality so that the parties may litigate the real issues between them, in an expeditious, efficient and cost effective way. The purpose of the rule is to ensure that all matters in dispute can be effectually and completely determined and adjudicated upon. The power contained in O 18 r 6(2) of the RSC is discretionary.
   2. The question of whether a person should remain a party is not only to be answered by reference to whether any relief is sought against that person. As observed by this court in Elovalis v Elovalis:
      1. ... the question of whether the second respondent should remain a party to the proceedings cannot necessarily be answered exclusively by reference to the observation that no relief is sought against him. If the second respondent is a person whose presence before the court is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, it is appropriate that ... he remain a party.
      2. The phrase 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined' should be given a beneficial interpretation; affording to it the widest interpretation its language will permit (Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221 [25]; also see APT Finance Pty Ltd v Bajada [2008] WASCA 73 [34]) ...
      3. Further, the expression 'all matters in dispute' has been held to have an elastic application. In Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34, 38 it was held that the phrase 'all matters in dispute in the proceedings' in a similar provision in the Rules of the Supreme Court 1970 (NSW), should not be construed as limited to matters arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the proceedings.

The Civil Liability Act 2002 (WA)

1. Under s 5AN(1) of the Civil Liability Act:

The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.

1. An apportionable claim is defined by s 5AI as meaning:

(a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care ...; or

(b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 2010 based on misleading or deceptive conduct; ...

1. The principles that apply to appeals from the decision of a registrar of the court are well established.
2. A party who is dissatisfied with a decision of a registrar may appeal to a judge.[12] The appeal is to be by way of a new hearing of the matter that was before the registrar.[13] The appeal is a hearing de novo: Hazart Pty Ltd v Rademaker.[14] The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal.[15] The appellant is not required to demonstrate error to succeed on the appeal.[16]
3. I am therefore to treat the application which led to the making of the orders the subject of the appeal as though it had not been previously determined. It is not necessary for the plaintiff to establish an appealable error on the part of the registrar.

1. The sole issue for determination in this appeal is whether the Commissioner is a person who ought to have been joined as a party or whose presence before the court is necessary.

1. At the hearing of the appeal, counsel for the plaintiff raised the proposed joinder of Mr James Harfouche as a second plaintiff to these proceedings as a part of the appeal.
2. Mr James Harfouche is the plaintiff in separate proceedings against Mr Meinen and the State, being CIV 4852 of 2023 and is presently the subject of a yet to be determined application before the court for consolidation of Mr James Harfouche's action with this action with the solicitors on record in respect of both matters being one and the same.
3. The plaintiff did not seek leave to amend the notice of appeal to include the question of joinder of Mr James Harfouche. In any event, RSC O 18 r 6(2)(b) makes it clear that 'no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised' and there is no evidence of this before the court (nor was an application made by the plaintiff for leave to adduce any additional evidence on appeal).
4. The question of whether Mr James Harfouche should be added as a second plaintiff to these proceedings therefore did not form part of the issues for determination by this court.

Whether the Commissioner is a person who ought to have been joined as a party or whose presence before the court is necessary

1. The plaintiff submits that when applying the RSC O 18 r 6 'necessity test' to the present appeal, an important consideration for this court is the statutory construction of s 137(3) and s 137(5) of the Police Act. The plaintiff submits that this is because the negligence cause of action leads to further judicial inquiry concerning direct and indirect liability and the apportionment of tortious liability as between the State and/or the Commissioner.
2. The plaintiff's position is that it is not possible to divorce the RSC O 18 r 6 'necessity test' from the statutory construction of s 137(3) and s 137(5) of the Police Act because it goes to the question of whether a party is tortiously liable and, if so, the allocation of that tortious liability. The plaintiff relies on the Court of Appeal decision of Saffari.
3. The plaintiff submits that granting leave to the plaintiff to add the Commissioner will allow the parties to litigate the real issues between them in an expeditious, efficient and cost effective way and 'ensure that all matter in dispute can be effectually and completely determined and adjudicated upon'.

1. The State submits that the necessity test is to be applied to the proceedings as they stand, not as the plaintiff wishes them to stand. Having regard to the most recent version of the Amended Writ therefore, there is no order which might be made in the proceedings which would directly affect the Commissioner's rights against or liabilities to a party to the action. That is, the plaintiff is not seeking an order for the payment of damages by the Commissioner.
2. The State's position is essentially that unlike Saffari, in this matter, the court does not need to construe the operation of s 137(3) and s 137(5) of the Police Act because there is no presently pleaded cause of action or relief sought against the Commissioner directly. Nor does the court need to join the Commissioner to the existing proceedings for the purposes of the cause of action in negligence against the State based on the vicarious liability for the Commissioner. This is because the liable party pursuant to the Amended Writ said to be the State and not the Commissioner.
3. The State further submits that the court does not need to join the Commissioner to the existing proceedings for the purposes of the cause of action in malicious prosecution or misfeasance in public office against Mr Meinen because the liable party pursuant to the proposed amended writ is said to be Mr Meinen and not the Commissioner.
4. The State's position is that any effect on the reputation and the standing and confidence in the police force is not sufficient to satisfy the test of necessity imposed by RSC O 18 r 6(2).
5. Finally, the State submits that the court cannot give leave under s 5AN of the Civil Liability Act for the Commissioner to be joined as a defendant as the existing proceedings do not involve an apportionable claim within the meaning of the Act.

1. The primary question in terms of the joinder of the Commissioner is whether, using the language of RSC O 18 r 6(2)(b), the Commissioner is a,

person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon.

1. Having considered the matter, I am of the view that the Commissioner should not be joined as a defendant to the action.
2. First, the plaintiff's claim from the existing action, as much as can be discerned from the Amended Writ and indorsement, seeks relief against Mr Meinen and the State under several causes of action including: as against Mr Meinen, malicious prosecution, misfeasance in public office and collateral abuse of legal process; and as against the State, negligence against the State arising at common law and/or the Civil Liability Act; and indirect or direct liability for the alleged negligence of the Commissioner.
3. The joinder of the Commissioner is not necessary for the purposes of the plaintiff's causes of action against either Mr Meinen or the State as they appear in the Amended Writ.
4. Secondly, there is no order which might be made in the proceedings which would directly affect the Commissioner's rights against, or liabilities to, a party to the action. Applying the approach of the Full Court of the Federal Court in News Ltd v Australian Rugby, it is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties.
5. In this case, the plaintiff failed to address the impact of the orders sought in the action, nor did they explain whether the joinder is necessary in the relevant context. Specifically, the plaintiff did not address how any order made in the action could directly affect the Commissioner's rights or liabilities toward any existing party in relation to the subject matter of the action.
6. Similarly, the plaintiff did not address how, despite a cause of action and specific relief not being directly asserted against the Commissioner, any order made in the action could nonetheless directly affect the Commissioner's rights or liabilities toward any existing party in relation to the subject matter of the action.
7. Thirdly, and following on from the above, the authorities are clear that in the context of RSC O 18 r 6, a party cannot be joined merely because it is thought to be just or convenient. The court must consider whether the proposed party's rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action.[17]
8. Where the plaintiff asserts the test is met because there is a proposed claim in negligence by the plaintiff against the Commissioner which requires the court to consider the statutory construction of s 137(3) and s 137(5) of the Police Act, the plaintiff's position is misconstrued in the context of the RSC O 18 r 6 necessity test. Unlike the position in Saffari, for the reasons noted above, the orders currently against the current defendants are for damages and there is no order that could be made against the current defendants which would affect the rights or liabilities of the proposed defendant, the Commissioner.
9. Fourthly, the court must consider the orders sought in the proceedings and the effect of those orders upon the proposed defendant on the basis of the existing writ.[18]
10. The plaintiff relies on the Fifth Proposed Amended Writ for the purposes of the joinder of the proposed defendant, the Commissioner. The plaintiff alleges as against the Commissioner, generalised assertions that the Commissioner is somehow involved with or has in some way facilitated the Renewed Charge owing to the alleged acts or omissions of Mr Meinen and/or the Commissioner such that the Commissioner was negligent and breached a duty of care said to be owed to the plaintiff.
11. The Fifth Proposed Amended Writ is not the existing writ. In circumstances where the Fifth Proposed Amended Writ is not the existing writ, the statutory test imposed by RSC O 18 r 6(2)(b) is not established and the court's discretion is not enlivened.
12. Fifthly, whilst not advanced substantively, there is the suggestion by the plaintiff that there are statute of limitation issues and cost issues that sit in the background. This does not bypass the necessity test.
13. In any event, joinder does not deprive a party of an accrued limitation defence.[19] It is important to observe that nothing in this should be taken to suggest any particular answer to the question of an accrued limitation defence.
14. Finally, for completeness, I observe that the existing claims by the plaintiff against Mr Meinen and the State, and the proposed claim against the Commissioner is a claim for personal injury and as such does not involve an apportionable claim within the meaning s 5AN of the Civil Liability Act. A joinder under s 5AN(1) of the Civil Liability Act is therefore not enlivened.

1. Having had regard to RSC O 18 r 6(2)(b), for the above reasons, I am of the view that that the Commissioner should not be joined as a defendant to the action.
2. Consequently, the appeal should be dismissed.
3. As to the question of costs, I am mindful that an application for joinder pursuant to RSC O 18 r 6 is ordinarily ex parte and made by motion.[20] It may also be brought on notice to the party to be joined by chamber summons.[21]
4. Where a defendant contends that he or she has been improperly joined, it is open to the defendant so joined to take steps to either oppose the joinder (ie following an ex parte application) or to apply to be struck from the proceedings.
5. Here, the application was brought by chamber summons and there is nothing before me to suggest that notice was given to the Commissioner, as the party proposed to be joined.
6. The State is a respondent to the appeal and is a party to the action. The submissions put by the State in opposing the joinder of the Commissioner to the action were advanced by the State in its own right. There is no suggestion that the solicitors for the State appeared on instructions from anyone other than the State.
7. I will hear further from the parties in relation to costs.

1. The appeal is dismissed.
2. I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Mr James Harfouche is the plaintiff in separate proceedings against Mr Meinen and the State, being CIV 4852 of 2023.

[2] By chamber summons dated 6 August 2024, the plaintiff applied to the court for an order for substituted service of the Amended Writ on Mr Meinen. An amended application was filed on 3 September 2024 and again on 20 September 2024. On 20 September 2024, upon hearing from counsel for the plaintiff in chambers, the application was withdrawn.

[3] Hunter Automotive Group Pty Ltd v Range Motors Pty Ltd [2021] WASC 122 [5] (Hunter Automotive Group) and the cases cited therein.

[4] Elovalis v Elovalis [2008] WASCA 141 (S) [4] - [7].

[5] Wurth Australia Pty Ltd v Burgess [2012] WASC 504 [57] (Wurth Australia), followed in North West Pilots Pty Ltd as Trustee for the Port Hedland Pilots Unit Trust t/as Port Hedland Pilots v Daniel [No 2] [2023] WASC 98 [15] (Hill J) (North West Pilots [No 2]) (affirmed in North West Pilots Pty Ltd as Trustee for the Port Hedland Pilots Unit Trust t/as Port Hedland Pilots v Daniel [2023] WASCA 122 [23] - [24] (Buss P, Beech & Vaughan JJA) (North West Pilots v Daniel) and cited with approval in Saffari v The State of Western Australia [2024] WASCA 77 [21] (Mitchell JA, Tottle & Seaward JJ) (Saffari).

[7] Hunter Automative Group [9].

[8] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460 [116] (Smith J) (Trans Petroleum v United Petroleum). See also Wurth Australia [57(d)], [57(e)] and the authorities referred to.

[9] Trans Petroleum v United Petroleum [118] - [119].

[10] News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, 425 (News Ltd v Australian Rugby).

[12] District Court Rules 2005 (WA) (DCR) r 15(1).

[14] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ) (Hazart).

[15] Stewart v Hames [2019] WASCA 127 [8].

[17] Hunter Automotive Group [9].

[19] Bainbridge v Lawton [2002] WASC 293 [4], [9].

[20] Resource Equities Limited v Western Ventures Pty Ltd [2004] WASCA 242.

[21] RSC O 59 r 3(1)(b)(ii); Oswal v Yara Australia Pty Ltd [No 2] [2011] WASC 146; Mighty River International v Bryan Hughes and Daniel Bredenkamp (as Deed Administrators of Mesa Minerals Ltd) [2017] WASC 203; Rosebridge Nominees Pty Ltd v Commonwealth Bank Australia [No 6] [2014] WASC 203.