26 Mr Hall submitted that there was in fact no need for the applicants to obtain leave to proceed against Caterpillar Inc. in order to obtain compensatory relief that they seek in the alternative to the primary relief sought. Schmidt J considered this issue in Harmer v Caltex Petroleum Pty Limited & ors [2000] NSWIRComm 100:
19 The necessity for the joinder may be debatable, given the concession of the existing respondents, that if they are unsuccessful, the absence of Caltex Nominees as a respondent would provide no bar to the money orders sought being made against them, although those respondents may seemingly themselves take different views as to how such orders should apply, as between them, in the event the applicant succeeds. This concession may also, at the end of the day, be relevant to any costs order made.
20 Nevertheless, such considerations cannot, in my view at this stage, properly prevent the joinder of Caltex Nominees as a party to the proceedings, it plainly holding money derived from the trustees of the Pension Plan, which the applicant seeks to recover and on that basis falls within the categories of persons against whom money orders may be made under s106(5), following the approach of Barwick CJ outlined above. That it was not in existence at the relevant time and not culpably associated with the events in question, does not necessary preclude relevant orders being made against it.