HUNTER AUTOMOTIVE GROUP PTY LTD -v- RANGE MOTORS PTY LTD [2021] WASC 122 (23 April 2021)

1. The plaintiff submitted that leave should be granted because

(a) the claims are not statute-barred or otherwise precluded;

(b) the proposed statement of claim discloses a viable claim against Deloitte, known to law, which is capable of being heard and determined by this Court;

(c) the allegations to be made in the proposed statement of claim (and writ) fall within each limb RSC O 18 r 4(1), providing for the circumstances where leave should be granted; and

(d) in the absence of a grant of leave, the plaintiff would be permitted to, and would, commence the claim against the new defendant by a new writ and then seek to (or be obliged to) consolidate the new proceedings with the present proceedings, which would effect the same practical result with greater expense, court hearings and delay, for which there is no proper warrant.[1]

1. There are now several decisions of single judges of this court holding that O 18 r 4 does not confer power on the court to grant leave for additional parties to be joined to existing proceedings: see Renovation & Finance Co Pty Ltd v Kott Gunning (a firm) [2006] WASC 29 (Jenkins J); Lois Nominees v Hill [2011] WASC 53 (Beech J) Wurth Australia Pty Ltd v Burgess [2012] WASC 504 (Corboy J); Worthington v Worthington (No 2) [2014] WASC 448 and Ooranya Pty Ltd v ISPT Pty Ltd [No 2] [2019] WASC 453 (Martin J). The scheme provided by the Rules for amendment by adding a party is summarised in those decisions, particularly in Lois Nominees v Hill and Wurth Australia Pty Ltd v Burgess.
2. Order 18 r 6 is the relevant rule permitting addition of a party to an existing action. Should leave be granted, the consequential amendment is made pursuant to O 18 r 8(1). Although the plaintiff did not argue by reference to O 18 r 6, it is referred to in the summons so I will address it.
3. An amendment to the writ which consists of the addition of a party to the action requires leave: O 21 r 1. The court's power to allow a plaintiff to amend its writ and any party to amend its pleadings is conferred by O 21 r 5. That rule is expressed to be subject to O 18 r 6, r 7 and r 8.
4. The question in this case, by reference to O 18 r 6(2)(b) is whether the proposed second defendant 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'.
5. While O 18 r 6(2) is to be interpreted beneficially, the test is whether the presence of that party is necessary; 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.
6. As the Full Court of the Federal Court said in News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, 425:

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 plaintiff did not address the effect of the orders sought in the action and whether the joinder is necessary in the relevant sense.
2. The plaintiff's claim in the existing action seeks relief against the defendant under several causes of action, including unconscionable dealing, the statutory torts under the Australian Consumer Law, and economic duress. It seeks equitable compensation, compensation under the Australian Consumer Law, and damages.
3. By a second further re-amended statement of claim, filed 9 March 2020, the plaintiff pleaded extensive allegations regarding the conduct of the proposed second defendant. In its second further amended defence, the defendant also pleaded facts relating to the actions of the proposed second defendant. Neither party has pleaded any matter which might result in the court making orders that might directly affect the proposed second defendant's rights against or liabilities to either the plaintiff or the defendant.
4. Should the plaintiff commence new proceedings against the proposed second defendant, any question of consolidation will be dealt with, on its merits, at the appropriate time.
5. The application by summons filed 8 December 2020 will be dismissed.

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