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[2001] QSC 83
procedural. Defendants' application of 19 February 2001 dismissed with costs; proceedings by sixth plaintiff (Western Skins Pty Ltd) discontinued; proceedings by fourth plaintiff (Vacik Investments Pty Ltd)...
Chesterman J held that an amended statement of claim filed without the required leave was an irregularity under the UCPR and therefore not a nullity; because the defendants did not apply to have the irregular pleading set aside, its delivery was a valid 'step' in the proceedings and the defendants' application to dismiss for want of prosecution failed. However, the court refused to allow the plaintiffs to substitute Vacik Distributors as a plaintiff after the limitation period under UCPR r 69(2)(g), because the plaintiffs failed to explain why Distributors had not been joined earlier and joinder would unfairly deprive defendants of their statutory limitation protection. Orders were made dismissing the defendants' application, discontinuing proceedings for the non-existent named plaintiffs, and refusing joinder of Distributors, with costs as recorded [24].
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This was a procedural dispute arising in a defamation action brought after a 10 July 1993 Courier-Mail article alleged serious criminal conduct by a number of named persons and corporate trading names, including various Vacik entities. The plaintiffs commenced proceedings on 2 September 1993 and obtained an apology published on 11 September 1993, but their litigation progressed slowly. Pleadings closed in November 1994, and there was document exchange through early 1998. After a lengthy hiatus the plaintiffs filed an amended statement of claim on 29 June 2000 which (a) deleted references to Western Skins Pty Ltd (the sixth plaintiff) because it did not exist, and (b) sought, by correspondence, to substitute Vacik Distributors Pty Ltd for the fourth plaintiff, Vacik Investments Pty Ltd (itself not a registered company) [2]–[4], [13]–[16].
The defendants applied on 19 February 2001 to dismiss the action for want of prosecution, arguing that there had been no step in the action within the time allowed under the UCPR because the amended statement of claim of 29 June 2000 was a nullity: the removal of a plaintiff without leave was impermissible (relying on UCPR rr 304(2) & (3) and r 378) and any amendment of that kind required leave. The plaintiffs cross-applied for declaratory relief that the filing on 29 June 2000 was a step in the proceedings or, alternatively, for leave to proceed; they also sought orders to substitute Distributors for Investments and to remove the non-existent sixth plaintiff [5]–[6].
Chesterman J resolved two primary issues: (1) whether the amended pleading of 29 June 2000 was a nullity or merely an irregularity and thus whether its delivery constituted a step for the purposes of the UCPR (affecting the defendants' dismissal application), and (2) whether it was just to allow joinder/substitution of Vacik Distributors after the limitation period under UCPR r 69(2)(g) [6], [17]–[18]. His Honour held that the amendment was irregular but not a nullity under UCPR r 371, therefore it was a valid step in the proceeding and dismissal for want of prosecution was refused [7], [10]–[11]. Separately, the court refused to allow the substitution of Vacik Distributors after the limitation period because the plaintiffs failed to show any reason that made it just to deprive the defendants of limitation protection; the omission was unexplained despite Distributors having litigated on related publications and recovered damages elsewhere [17]–[23]. The judgment concluded with orders dismissing the defendants' application, discontinuing proceedings brought in the names of the non-existent entities, and refusing the substitution application (with costs allocated) [24].
Two statutory/textual pillars of the decision were pivotal.
First, UCPR r 371. The rule declares that non-compliance with the Uniform Civil Procedure Rules is an irregularity and does not render documents, steps or proceedings nullities. It empowers the court to set aside, declare ineffectual, or declare effectual steps, but it places irregularities in a remedial and discretionary frame rather than an automatic voiding frame [7]. Chesterman J applied the rule directly to the amended statement of claim filed on 29 June 2000: although removal of the sixth plaintiff without leave breached the rules, that breach rendered the amendment irregular rather than void. Because the defendants did not apply to have the irregular amendment set aside (and indeed their correspondence suggested a preference to address matters closer to trial) the amended pleading remained effective until set aside [8]–[11]. Consequently the filing constituted a step in the action, taken within the timetable deadlines the UCPR required, and so the defendants' dismissal application for want of prosecution could not succeed [11].
Second, UCPR r 69(2)(g). That rule regulates inclusion or substitution of parties after the limitation period. It permits such joinder only where it is 'just' to do so, and chesterman J emphasised that this is a discretionary enquiry rooted in the rule's text: the court must identify reasons that make it just to deprive a defendant of the statutory limitation protection [17]–[20]. The plaintiffs sought to substitute Vacik Distributors for Vacik Investments; Distributors was a real company, was named in the publication, had litigated other publishers and recovered damages, and therefore presented a distinct, time-barred cause of action against the defendants. The plaintiffs' explanation for omitting Distributors until 2000 was thin, reliance on earlier solicitors' correctness and no direct explanation from the first plaintiff, and was insufficient to satisfy the burden to demonstrate why it was just to allow joinder. The court observed that mere convenience or the absence of additional trial preparation does not outweigh the statutory protection afforded defendants by limitation legislation. For those reasons the joinder application was refused [21]–[23].
These two distinct applications of rules, validating the amended pleading under r 371 and refusing joinder under r 69(2)(g), explain the outcome: the defendants' dismissal failed, but plaintiffs could not add a time-barred plaintiff without adequate justification.
Before the UCPR, the old Rules of the Supreme Court O.93 r 17 and 18 had a different texture. As the judge observed, O.93 r 17 had been understood to abolish the sharp nullity/irregularity divide, but O.93 r 18 imposed an obligation to apply to set irregularities aside within a 'reasonable time'. UCPR r 371 preserves and in part strengthens the modern view that non-compliance is an irregularity capable of cure or validation rather than producing an automatic nullity, but it omits the explicit 'reasonable time' bar of the old O.93 r 18 [9]–[10].
Bridge Shipping v Grand Shipping (the High Court's instruction to construe certain rules widely) was discussed but Chesterman J warned that decisions under previous procedural rules cannot displace the plain terms of new rules: r 69(2)(g) must be applied as written and the 'wide' approach approved in Bridge does not render earlier cases decisive where the new rule's terms differ materially [18]. Similarly, Hayward v Darling Downs, which applied the 'special' or 'peculiar' requirement under older rules, could not be read to constrain the present r 69(2)(g) enquiry since the new rule adopts a broadly discretionary 'just' test [18]. Thus, after this judgment, r 371 remains authority that irregular amendments effect steps unless set aside, and r 69(2)(g) is to be applied by inquiring whether it is 'just' to allow joinder after limitation with an expectation of clear reasons supporting such justice.
UCPR r 371 quoted at [7]: "A failure to comply with these rules is an irregularity and does not render a proceeding ... a nullity." Plain English: breaking the procedural rules is an irregularity the court can fix; the step still counts until the court makes orders to the contrary.
Chesterman J's conclusion at [10]: "The consequence is the amended statement of claim was irregular ... but the delivery of the pleading cannot be regarded as a nullity ... The statement of claim in its present amended form, is valid until set aside." Plain English: even though the amendment breached the rules, it was not automatically void; because nobody moved promptly to set it aside, it counts as a real action-shaping event.
Framing of r 69(2)(g) at [17]: "The central inquiry ... is whether it is just to add a party." Plain English: to add someone after the limitation time you must show specific, persuasive reasons why fairness requires it.
Application to facts at [21] and [22]: "The plaintiffs fall at this hurdle. They do not explain why Distributors was not made a party ... If the addition is made the defendants will be exposed to an additional liability ... which prima facie the law affords protection by means of the Limitation of Action Act." Plain English: plaintiffs had no good reason for leaving the correct company out; adding it would unfairly deprive defendants of benefits of the time limit.
Where a plaintiff files an amendment removing or substituting parties without obtaining leave, and the defendant contends the change was void and therefore there has been no 'step' for purposes of progression or limitation rules. This case confirms the amendment is irregular but nevertheless valid until set aside under r 371, so it can constitute a step unless actual relief is sought and obtained.
When a party seeks to add or substitute a plaintiff after the limitation period, especially where the proposed party is a clearly identifiable corporate entity that could have been joined earlier and has separate causes of action. The judgment requires a clear factual explanation demonstrating why it is just to allow that addition despite the statutory protection of limitation.
Situations where the defendant relies on procedural lapse to obtain dismissal for want of prosecution; if the plaintiff filed an irregular but unchallenged pleading within the critical period, dismissal will usually fail.
This judgment is an application of UCPR r 371 and r 69 to a concrete set of facts. It reiterates established lines of authority recognising that procedural non-compliance is generally an irregularity that the court can cure; it also clarifies the exercise of discretion under r 69(2)(g): the applicant must identify reasons making it just to add a party. Later courts considering similar issues will treat this decision as a useful exposition of the application of r 371 and r 69(2)(g) to joinder and limitation. Practitioners should expect courts to ask for explicit factual explanation for late joinder and to preserve defendants' limitation protections unless justice clearly favours joinder. Because this judgment applied the text of the UCPR plainly and insisted on identifying reasons, its approach is likely to be followed in comparable procedural disputes.
The judgment leaves open the precise content and sufficiency threshold for the 'reason' or reasons that will satisfy r 69(2)(g). Chesterman J held that an unexplained omission fails, but he did not catalogue the kinds of explanations (eg, clerical error supported by evidence of reasonable steps, active concealment by prospective plaintiff, or other compelling reasons) that might suffice.
The decision implicitly recognises courts' discretion under r 371 to set aside irregular steps, but the criteria and timing for exercising that discretion were not exhaustively explored. For example, how long must a party wait before the court will refuse relief as being too late? Chesterman J noted the former O.93 r 18's 'reasonable time' requirement is absent from the UCPR but suggested delay remains relevant; future decisions will need to develop this into firmer guidance.
When an amendment both removes a party and makes other substantive changes, the line between 'formal' and 'substantive' amendment remains fact-specific. The judgment regarded the 29 June 2000 amendments as extensive though mainly formal, but how different factual patterns (more substantive changes) will affect the availability of r 371 relief could require further clarification.
The interaction between offers of compromise/mediations in related proceedings (noted in the facts) and the joinder analysis under r 69(2)(g) is not explored in depth. Whether a history of related settlements or judgments in other fora should weigh in favour of joinder as 'just' remains an open question.
Practical takeaways: ensure parties are correctly identified at filing; if an irregular amendment is made, opposing parties should promptly apply to set it aside if they intend to rely on procedural non-compliance; and when seeking to add a party after limitation, provide a clear evidentiary account explaining the omission and demonstrating why it is just to deprive defendants of their limitation defence.
[1] CHESTERMAN J: On 10 July 1993 the first defendant published in the Courier Mail of that date an article written by the second defendant. The plaintiffs claim that it defames them. They allege that the article implicated them in the substitution of kangaroo meat for export beef on a large scale, and implied that they were members of, or were believed on reasonable grounds to be members of, a criminal syndicate engaged in that substitution, as well as smuggling Australian native wildlife and the illegal importation of drugs and gold into Australia. Moreover it is said that the article implied that the natural plaintiffs were parties to murder, as well as the systematic corruption of government officials, and were associates of notorious criminals.
The article may not have been adequately researched. The Courier Mail of
11 September 1993 carried an apology to the first plaintiff "and others" in which it admitted that the article "made certain inaccurate statements concerning Victor Walter Bates, William John Bates, Clifford Ernest Dee, Vacik Investments Pty Ltd, Vacik Pty Ltd and Western Skins Pty Ltd". The first defendant accepted that it had no grounds for supposing that any of those named were involved "in a meat substitution racket", or murder, or were in any way corrupt.
[2] The plaintiffs commenced an action claiming damages for defamation on
2 September 1993. Not satisfied with the published apology and the first defendant's expressed regret for the publication, the plaintiffs have continued with the prosecution of their action but have not done so with any celerity. It took fifteen months before pleadings closed with the delivery of a reply on 25 November
1994. A week short of the third anniversary of that event the plaintiffs gave their list of documents to the defendants on 18 November 1997. The defendants rushed to provide their list of documents by 12 February 1998. Thereafter nothing happened until 29 June 2000 when the plaintiffs filed and served an amended statement of claim. July 2000 saw the exchange of some correspondence clarifying what documents had been disclosed two and-a-half years earlier and pursuing a false issue about a second publication of the same defamation.
[3] By letter of 29 June 2000 which enclosed the amended statement of claim the plaintiffs'solicitors advised the defendants'solicitors:
(a) that the sixth plaintiff, Western Skins Pty Ltd should not be a party to the action because there was no such company in existence;
(b) that the fourth plaintiff Vacik Investments Pty Limited
("Investments") had also been wrongly included as a plaintiff;
(c) it should be replaced by another company, Vacik
The defendants were asked to consent to the substitution and told that if they did not an application would be made to the court to effect the change of parties. The defendants did not indicate their consent to the reconstitution of the action but informed the plaintiffs'solicitors by letter of 6 July 2000 that they "should make an application for substitution (and) no doubt the removal of the nonexistent sixth plaintiff . . .".
[4] The amended statement of claim delivered on 29 June 2000 made only one substantial change. The name of the sixth plaintiff, Western Skins Pty Ltd was crossed out in the entitlement and all references to it in the body of the document were deleted. The other changes were formal: the allegations were recast in a more comprehensible form. Although these changes were not substantive they were extensive. Perhaps for that reason they were not underlined as they should have been.
[5] On 15 December 2000 the plaintiffs applied for an order that:
(a) Distributors be substituted for the fourth plaintiff, Investments;
(b) the sixth plaintiff be removed from the action;
(c) they be given leave to file and serve a further amended statement of claim.
By an amended application filed by leave the plaintiffs sought instead of the last mentioned order a declaration that the filing of the amended statement of claim on
29 June 2000 constituted a step in the proceedings for the purposes of Uniform Civil
Procedure Rules 1999 (Qld) r 389. Alternatively the plaintiff sought leave to proceed. These last orders were sought in response to an application filed by the defendants on 19 February 2001 for an order that the plaintiffs'action be dismissed for want of prosecution.
[6] The cross applications focus upon the efficacy of amending the statement of claim on 29 June 2000. If the delivery of the amended pleading amounted to taking a step in the action the defendants have no warrant for contending that the plaintiffs are not prosecuting their action within the times allowed by the UCP Rules. If, as the defendants contend, the delivery of the amended pleading was a nullity there was no step in the action between 12 February 1998 when the defendants delivered their list of documents and 15 December 2000 when the plaintiffs filed their application. By the operation of UCPR 389(4) the plaintiffs had until 30 June 2000 to take a step in the action without the leave of the court. The defendants' point is that the amendments made to the statement of claim delivered on 29 June 2000 were not ones that could have been made without leave, which was not obtained. It is therefore submitted that the amended pleading is a nullity and its delivery was not a step in the action. This is because UCPR 304(2) & (3) forbid a plaintiff from discontinuing an action without the leave of the court or the consent of other parties. The amendment removing the sixth plaintiff from the proceedings amounts to a discontinuation of that plaintiff's cause of action. UCPR 378 provides that, before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave is not required. Leave, however, was required by UCPR 304(2) & (3). The amended statement of claim of 29 June was not authorised by the UCP Rules.
[7] That is not, however, the end of the matter. UCPR 371 provides that:
"(1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
(2) Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may -
(c) declare a document or step taken to be ineffectual; or
(d) declare a document or step taken to be effectual; or
(e) make another order that could be made under these Rules . . .
(f) make such other order dealing with the proceeding generally as a court considers appropriate."
The defendants do not object to the removal of the sixth plaintiff from the action. They do oppose the addition of Distributors in place of the fourth plaintiff, Investments.
[8] The defendants have never applied to have the irregularly amended statement of claim set aside. Their letter of 6 July 2000 from which I have quoted went on:
"You will understand that we would prefer that these matters are dealt with at this time in advance of trial. There are obviously cost considerations involved in the matters of the removal of the sixth plaintiff and the deletion of the fourth plaintiff . . . and its replacement by Vacik Distributors Pty Ltd."
[9] The former Order 93 Rule 17 which appeared in the superceded Rules of Court was similar in effect to UCPR 371 though the latter is perhaps more emphatic in its terms. O 93 r 17(2) empowered the court or a judge to set aside proceedings in which there had been a failure to comply with the requirements of the rules. O 93 r
18 compelled the party complaining about such non-compliance to apply for an order setting the irregular process aside "within a reasonable time", after which the court could not act under r 17(2). This last mentioned requirement is not found in the UCP Rules but delay in applying pursuant to UCPR 371(2) is always likely to be relevant in the exercise of the discretion whether to invalidate an irregular procedure. The point is of no present relevance because, as I mentioned, the defendants have not applied for relief under UCPR 371(2).
[10] It was said of the former O 93 r 17 that it abolished the distinction between nullities and irregularities with the consequence that "every omission or mistake in practice or procedure is . . . to be regarded as an irregularity which the court can and should rectify so long as it can . . .without injustice": Perez v Transfield (Qld) Pty Ltd
[1979] Qd R 444 at 451 per Hoare J (with whom Kelly J agreed) quoting with approval from Lord Denning's judgment in Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 - 736.
Perez is authority for the proposition that an irregular proceeding, that is one which does not comply with the rules of court, is valid and will be effectual unless the court orders otherwise (See at 447 per Lucas J and at 452 per Hoare J). UCPR 371 must be regarded in the same way. The consequence is the amended statement of claim was irregular because the leave of the court for the removal of the sixth plaintiff had not been obtained but the delivery of the pleading cannot be regarded as a nullity, something that did not happen. The statement of claim in its present amended form, is valid until set aside.
[11] The only argument advanced in support of the defendants' application was that the plaintiffs had taken no step in the action for a period longer than three years. The activity on 29 May 2000 did constitute a step in the action and was taken within time. There is no basis for dismissing the plaintiffs' action. The defendants' application of 19 February 2001 will itself be dismissed. The plaintiffs do not need leave to proceed with their action.
[12] As noted earlier the defendants do not oppose the order that the sixth plaintiff be removed from the proceedings. I will make an order to that effect. The defendants have not asked for their costs incurred to date by reason of defending the sixth plaintiff's action. I apprehend they would have been entitled to such an order, but it is not sought.
[13] The remaining application is for the substitution of Distributors for Investments. The necessity for the substitution is said to be that the present fourth plaintiff, Investments, has not been incorporated, did not exist at the time the defamatory article was published and does not exist now. The proposed plaintiff, Distributors, was specifically named in the article, which said:
"The documents also named Vacik Investments, still one of the biggest companies in the kangaroo meat and skin industry, in relation to corruption. . . . Vacik Investments was set up . . . in 1969. It was the trading name used by a complex network of companies all controlled by (the first, second and third plaintiffs). The companies included . . . Vacik Distributors . . ."
It was in existence at the time of the publication and remains incorporated. It has throughout that time traded as a kangaroo meat processor.
[14] The plaintiffs changed solicitors late in 1999. The only explanation for the erroneous inclusion of the fourth and sixth plaintiffs in the proceedings and the omission of Distributors, appears in the affidavit of Mr Ottley, the plaintiffs' present solicitor. He deposes to reviewing material received from the former solicitors and realising the mistake as to parties. Mr Ottley goes on:
"I have made an inquiry of . . . the first plaintiff and managing director of Distributors as to the reasons why these non legal entities were named as . . . plaintiffs, and Distributors was not included . . . I have been informed . . . that he does not know why the inclusions and omission . . . occurred. (The first plaintiff) further informs me . .
. that he trusted his former solicitors had included the correct plaintiffs in the statement of claim."
No further explanation has been given by any of the plaintiffs or the former solicitors.
[15] The defendants were not the only ones to publish the defamatory imputations against the plaintiffs. They were also put into circulation by the Australian Broadcasting Corporation and Nationwide News Pty Limited the publisher of the Daily Telegraph in Sydney. Those corporations were sued in the Supreme Court of New South Wales by the first plaintiff and Distributors. Both received a substantial award of damages from both corporations. The article was also published by the Herald and Weekly Times Limited, publishers of The Age in Melbourne. Proceedings brought against that newspaper by Distributors and others were compromised subsequent to a mediation conducted in Melbourne on 24 April 1998. The mediation, which was not immediately or wholly successful, involved not only the proceedings against The Age but those against the Courier Mail. The plaintiffs in both sets of proceedings were represented before the mediator by a partner of Messrs Clayton Utz in Melbourne and a solicitor from the plaintiffs' former Queensland solicitors. The mediation occurred less than six years after the publication by the defendants in the Queensland proceedings.
[16] The article referred to both "Vacik Investments" and "Vacik Distributors" though it did not identify either as a corporation. I was told from the Bar table that the
natural plaintiffs and their companies had at times carried on business under the name "Vacik Investments" but there was and is no corporation by that name. They were not carrying on business under that name at the time of publication. There was and is a company by the name of "Vacik Distributors Pty Ltd".
[17] Although the application is for an order that Distributors be substituted for the present fourth plaintiff in reality what is sought is the addition of a further plaintiff and the deletion from the proceedings of a name that does not represent any legal person.
"(1) The court may at any stage of a proceeding order that -
(b) any of the following persons be included as a party -
(i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceedings;
(ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
(2) However the court must not include or substitute a party after the end of the limitation period unless one of the following applies -
(g) for another reason the court considers it just to include or substitute the party after the end of the limitation period."
This, I think, is the relevant rule, not UCPR r 376 which governs amendments to a document after the expiration of a limitation period. The circumstances in which the court may allow such an amendment are differently described. The central inquiry required by rule 69(2)(g) is whether it is just to add a party. It is not necessary to consider whether the rules require any different approach.
[18] Before the UCP Rules came into operation an application to add a plaintiff after the expiration of a limitation period would only succeed if the circumstances giving rise to the application for joinder could be seen to be "special" or "peculiar" - see Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 which insisted on this approach notwithstanding that the High Court had said, with respect to the analogous rule permitting amendments to be made correcting names and adding causes of action outside a limitation period that it should be given:
"The widest interpretation which its language will permit."
Per McHugh J with whom Brennan and Deane JJ agreed in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 at 260 - 261. O 3 r 11 of the superceded rules with which Hayward was concerned did not contain the wide general power now found in rule 69(2)(g). The rule has to be given effect according to its terms uninfluenced by cases decided on earlier rules. The apparent incongruity in approach between Bridge and Hayward may be ignored. When determining an application to add a plaintiff whose cause of action is out of time the court must have regard only to the terms of the relevant rule. It provides that the joinder may be allowed if for any reason it is just to do so. The rule contemplates that there will be a reason (or reasons) identified in the material which makes it just to deprive a defendant of a good defence.
[19] Only rarely will the joinder of a party in such circumstances not work prejudice on the defendant. The sub-rule imposes an onus on the applicant to bring forward the reason from which it may be seen that it will not be unfair for the defendant to be exposed to a stale claim. I use the word "unfair" as a synonym for the phrase found in sub-rule 69(2)(g) "just to include . . . the party . . .".
[20] The rule confers a wider general discretion on the court but it can only be exercised where the reason, which makes the destruction of the defence just, can be clearly identified and is seen to be sufficient. An explanation for the failure to join the party within time will always be relevant though lack of such an explanation is not a precondition to the power.
[21] The plaintiffs fall at this hurdle. They do not explain why Distributors was not made a party to the action prior to July 1999. Its omission is noteworthy given that it was a plaintiff in proceedings brought against other publishers and that it has recovered substantial moneys by way of judgment and compromise. Mr Ottley's oblique assertion that the first plaintiff "trusted" his solicitors to include the correct plaintiffs is altogether unsatisfactory. Mr Bates does not deign to reveal what instructions he gave his former solicitors who were, apparently, not approached to explain the omission.
[22] The plaintiffs submit that the addition of Distributors will not lengthen the trial nor add to its cost. They further submit that the defendants have been aware of the claims by the other plaintiffs for some time and are prepared to defend them. The addition of Distributors will not require any further preparation. It will not involve an investigation of a stale claim for the first time. These submissions may be accepted but they miss the point. If the addition is made the defendants will be exposed to an additional liability to pay damages against which, prima facie, the law affords protection by means of the Limitation of Action Act 1974. The fact that Distributors' claims may be conveniently heard with the other plaintiffs' claims is not sufficient to make it just to deprive the defendants of that protection.
The plaintiffs argue that the defendants will not be prejudiced because Distributors is being substituted for Investments. The unstated premise is that the defendants will be exposed to no greater liability if the substitution occurs than they already are because the liability to Distributors will be offset by the loss of liability to Investments. The reality is that the defendants could never had been made liable to pay damages to Investments. It was not a legal personality and could not sue even though it was named in the article. Distributors was separately named (not as an
alias for Investments) and it could have sued. But if it does so now it will be in respect of a distinct cause of action in addition to those already brought against the defendants.
[23] The plaintiffs show no reason why it is just that the defendants should face this extra liability. In the absence of an explanation as to why Distributors was not made a party within time it is not enough that the question of liability can be determined cheaply and conveniently.
1. That the defendants' application of 19 February 2001 be dismissed with costs to be assessed on the standard basis.
2. That proceedings by the sixth plaintiff be discontinued.
3. That proceedings by the fourth plaintiff Vacik Investments
4. That the plaintiffs' application to join Vacik Distributors Pty Ltd as a plaintiff be dismissed with costs to be assessed on the standard basis.
Bates & Ors
Qld Newspapers P/L & Anor
(1991) 173 CLR 231
Defendants' application of 19 February 2001 dismissed with costs; proceedings by sixth plaintiff (Western Skins Pty Ltd) discontinued; proceedings by fourth plaintiff (Vacik Investments Pty Ltd) discontinued; plaintiffs' application to join Vacik Distributors Pty Ltd dismissed with costs [24].