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[2010] ACTSC 93
respondent. Appeal dismissed except as to the Master's costs order, which was set aside and remitted to the Master for determination; costs of the appeal apportioned 90% to appellant and 10% to first...
The appellant (third defendant) argued that the joinder order was a nullity because the application to join him had not been personally served. The court held the failure was an irregularity under the Court Procedures Act and CPR r1450, not a nullity, because the order was interlocutory and capable of correction; the Master properly considered whether substantial injustice arose and did not err in refusing to set aside the joinder. The appeal was dismissed except that the Master's costs order was remitted for reconsideration (see [19]–[28], [30]–[39]).
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This is an interlocutory appeal about joinder and service. The plaintiff sued the first defendant in March 2008 for personal injuries said to have been caused by a personal trainer on 12 August 2005. On 23 July 2008 the plaintiff applied to join the second and third defendants. The acting Deputy Registrar made an order on 4 August 2008 joining both the second and third defendants. The affidavit of service asserted the third defendant had been served by express post; the plaintiff's solicitor later acknowledged they were unaware that personal service was required by the rules in the circumstances of the third defendant (see [7]–[10]).
12 cited instruments linked from this judgment.
An amended originating claim was filed 6 August 2008 and personally served on the third defendant on 21 August 2008. The limitation period for the plaintiff's cause of action ran from 12 August 2005 and expired on 12 August 2008 (see [11]–[12]). The third defendant filed a conditional notice and then applied on 5 December 2008 to set aside the joinder order on the ground of irregularity for want of personal service (see [13]–[15]). The Master (Harper) refused to set the order aside on 27 March 2009. The third defendant appealed under s 9(2)(a) of the Supreme Court Act; Gray J heard the appeal and dismissed it on 3 September 2010, except that the Master's costs order was remitted for reconsideration (see [1], [37]–[40]).
In short: the appellant argued the joinder was a nullity because the application to join was not personally served; the court held it was an irregularity correctable under statutory procedural provisions, the Master had not erred in his exercise of discretion, and the appeal was dismissed (save for costs).
Two statutory and rule provisions drove the decision: s 68 of the Court Procedures Act 2004 (ACT) and r 1450 of the Court Procedure Rules 2006 (ACT). Section 68 provides that no proceedings shall be invalidated by any formal defect or irregularity unless the court is of opinion that substantial injustice has been caused and that the injustice cannot be remedied by an order of the court; the court may declare the proceeding valid notwithstanding a defect ([19]). Rule 1450 states that failure to comply with the rules is an irregularity and does not make the proceeding or a step in the proceeding void, and it enumerates the corrective powers of the court ([20]).
Applying those statutory/rule provisions, Gray J concluded that a procedural failure to serve an application to join a defendant was ordinarily an irregularity rather than a nullity, at least where the order made was interlocutory and not a final determination of rights (see [24]–[28]). The judge distinguished cases such as Hoskins v Van Den-Braak (where lack of service underlay a judgment finally determining rights) as inapposite because they concerned final judgments: the injustice in those cases was that there had been effectively no trial at all ([22], [23]). By contrast an interlocutory joinder order does not finally determine rights and can be corrected by removal of the party at any stage under r 230 or other powers of the court ([24], [28]).
The court also applied the House v The King standard for appellate review of discretion. Under House v The King, an appellate court will only overturn a discretionary decision if the primary judge acted on a wrong principle, took into account extraneous matters, mistakenly regarded facts, or failed to consider a material matter ([3]). Gray J examined the Master's reasons and the matters relied on (including that the amended originating claim was personally served on the appellant after the order but before limitation consequences could be finally determined; the possibility that the first and second defendants might issue third party notices if the joinder were set aside; and substantive issues such as compliance with s 51 of the Civil Law (Wrongs) Act) and concluded these were relevant and material to the Master's assessment of whether substantial injustice would result ([31]–[36]). The judge therefore concluded the Master had not erred in exercise of his discretion and that an appellate court would have exercised discretion in the same way ([37]).
Finally, although the Master had been right on the substantive outcome, Gray J considered the Master's costs order had been made without giving the parties an opportunity to be heard on costs; that part of the order was remitted to the Master for reconsideration (s 9(4) Supreme Court Act) ([39]).
Before this decision, the authorities contained a distinction between procedural nullities and irregularities. Older common law and pre-Ord. 70 English authorities treated certain defects as nullities entitling affected persons ex debito justitiae to set aside determinations, particularly where there had been no opportunity to be heard and a final determination had been made (Craig v Kanssen; Cameron v Cole; cited in [16], [23]). Re Pritchard and the subsequent replacement of the earlier order led to a modern approach, articulated by Lord Denning and adopted in later Australian authorities, that most omissions in practice are to be treated as irregularities capable of correction unless they are fundamental to the proceedings (see [25]–[27]). New South Wales and other decisions such as Hoskins addressed situations where a final judgment had been entered without service and therefore was a nullity (see [22]).
After Gray J's decision in Lyons v Labathas, the practical effect in the ACT was reaffirmation that s 68 and r 1450 preserve judicial power to treat procedural failings as irregularities to be remedied unless they cause substantial injustice, and that interlocutory joinder orders made without strict compliance with service rules will not be automatically treated as nullities, the court will investigate whether the defect is fundamental to the trial and whether substantial injustice has been caused that cannot be remedied (see [19]–[28]). The decision clarifies the relevance of subsequent personal service and the limitation timetable in assessing whether substantial injustice arises (see [32]–[36]).
Paragraph 24: "In my view, the defect must be fundamental to the trial of the matter in issue before it can be said to be something more than an 'irregularity'."
Plain English: A mistake in procedure becomes a nullity only if it is central to the conduct of the trial itself; most procedural errors are irregularities that the court can fix.
Paragraph 28: "The order that was made by the acting Deputy Registrar was clearly an interlocutory order. I am unable to see that by granting it without the application being properly served, is anything more than an irregularity."
Plain English: The joinder order was an interim procedural step, not a final judgment; making it without perfect service was a correctable procedural error, not an automatically void order.
Paragraph 36: "The issue of the first and second defendants issuing a third party notice to the third defendant ... is a matter that goes to the issue of substantial injustice and, in my view, cannot be said to be irrelevant."
Plain English: Whether other defendants could have joined the third defendant later is relevant in deciding if the third defendant suffered unfairness by the defective service.
Paragraph 37: "As appears from the foregoing, I agree with the Master's exercise of his discretion and say that I would have exercised the discretion in the same way as the Master did."
Plain English: The appellate judge found no error in the Master’s reasoning and would have decided the same way.
Paragraph 19 (statutory text): Section 68, "No proceedings ... shall be invalidated by any formal defect or by any irregularity, unless the court is of opinion that substantial injustice has been caused ..."
Plain English: The statutory starting point is that formal mistakes do not automatically void proceedings unless unfairness results that cannot be fixed.
The reasoning and holding are triggered by a combination of facts:
If these features exist, Lyons v Labathas signals that the court will treat the defect as an irregularity that may be cured rather than as a nullity. If, by contrast, there is a final judgment or a situation where the affected party had no opportunity at all to be heard and suffered irremediable prejudice, the precedent points away from Lyons and toward authorities like Hoskins (see [22]–[23]).
The judgment itself does not report subsequent treatments by later courts. Gray J expressly adopted and applied existing authorities (Re Pritchard, Harkness, Australian Coastal Shipping Commission, Hoskins) to the facts and statutory framework in the ACT. Any account of later judicial treatment beyond this decision would require examination of later reported decisions; such later treatment is not analysed within the judgment and therefore cannot be asserted from this source alone (see [25]–[27], [27]).
The judgment clarifies several points but leaves some practical and doctrinal questions open or context-dependent:
Threshold for "fundamental to the trial": Gray J said the defect must be fundamental to the trial of the matter to constitute a nullity (para 24). The decision illustrates application to an interlocutory joinder order, but it leaves open more precise parameters for what degree of procedural impact crosses the threshold in different factual matrices.
Interaction with limitation law: The court treated the timing of limitation expiry and later personal service as central to the substantial-injustice inquiry (see [32]–[33]). It remains a factual question how close to limitation expiry, or how a plaintiff's conduct in re-filing or serving, will affect the outcome in other cases.
Relief appropriate where substantial injustice is found: r 1450 and s 68 give the court a range of powers (set aside, declare valid, remove parties, make other orders). The judgment confirms the availability of those powers but does not create a prescriptive hierarchy for how they should be exercised in borderline cases.
Costs consequences: The court remitted the costs order because the parties had not been heard (para 39). How courts should approach costs where procedural irregularities arise from solicitor error, particularly when the error benefits the plaintiff without causing irreparable prejudice to the defendant, remains sensitive to case-specific factors.
Applicability to other procedural steps: The decision specifically concerned joinder and the requirement for personal service in the ACT context. Whether the same analysis applies identically to other procedural steps that carry a different statutory or rule-protected status (for example, service of originating processes that trigger jurisdictional or limitation consequences) depends on the nature of the step and the statutory framework; Lyons is indicative but context-specific.
For practitioners: Lyons v Labathas emphasises assessing (a) whether the defective step was interlocutory or final; (b) whether subsequent events negated alleged prejudice (e.g. later personal service); and (c) whether substantial injustice results that cannot be remedied. If a party is considering an application to set aside on service grounds, the immediate factual matrix, timing, limitation dates, subsequent notice and possible third party steps, will be decisive and must be addressed before invoking ex debito justitiae relief (see [19]–[28], [31]–[37]).
[2010] ACTSC 93 (3 September 2010)
APPEAL - appeal from interlocutory decision of the Master - decision refusing the third defendant's application to set aside an order made by the acting Deputy Registrar - order of the acting Deputy Registrar allowing joinder of second and third defendants - whether substantial injustice caused to the third defendant - whether the third defendant is entitled ex debito justitiae to have order set aside - whether Master erred in the exercise of his discretion - appeal dismissed.
PRACTICE AND PROCEDURE - joinder of defendant - joined defendant not served personally - r 1450 of Court Procedure Rules 2006 (ACT) - whether joinder is a nullity or an irregularity - limitation period expiring subsequent to joinder - joinder declared valid.
Supreme Court Act 1933 (ACT) s 9
Court Procedure Rules 2006 (ACT) rr 40, 111, 220, 223, 230, 504, 1450 , 5013, 6008
House v The King [1936] HCA 40; (1936) 55 CLR 499
Martin v NRMA Insurance Ltd [1998] ACTSC 237 (12 June 1998)
Stelmag Pty Ltd v Tifferley Manufacturing Pty Ltd and Robert John King and
Susan Rosalie King [2003] ACTSC 49 (18 June 2003)
Contender 1 Ltd v LEP International Pty Ltd [1988] HCA 60; (1988) 82 ALR 394.
Craig v Kanssen [1943] 1 KB 256
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Daniels Corporation International Pty Ltd v Australian Competition and Consumer
Commission [2002] HCA 49; (2002) 213 CLR 543
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Re Pritchard [1963] 1 Ch 502
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd and Others (1989) 17 NSWLR 734
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
AND: SPORTS CENTRES AUSTRALIA PTY LIMITED (ACN 096 066 901) t/as CANBERRA INTERNATIONAL SPORTS & AQUATIC CENTRE (CISAC)
AND: THE CLUB GROUP PTY LIMITED (ACN 106 378 947)
1. The appeal be dismissed except as to the order as to costs;
2. The appeal be upheld as to the cost order of the Master of 27 March 2009 and that matter be remitted to the Master for his determination;
3. The costs of the appeal be apportioned as to the appellant who is to pay 90% of those costs and the first respondent 10%.
1. This is an appeal pursuant to s 9(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) against a decision of Master Harper, who, on 27 March 2009, dismissed an application dated 5 December 2008 by the third defendant (the appellant in these proceedings) to set aside an order made by the acting Deputy Registrar on 4 August 2008 and declared that the order joining the third defendant was valid notwithstanding the failure of the plaintiff (the first respondent in these proceedings) to serve the application dated 23 July 2008 for joinder on the third defendant.
2. The right of appeal is given by s 9(2)(a) of the Supreme Court Act which provides for an appeal from an interlocutory order to the Supreme Court constituted by a single judge. Subsection (9)(3) provides that the Court must have regard to the evidence given in the proceeding out of which the appeal arose, may draw inferences of fact from the evidence and may receive further evidence in various ways provided by s 9(3)(c). Subsection (9)(4) provides that the Court may confirm, amend or set aside the order of the Master and may make any order that in all the circumstances it considers just.
3. The appeal involves the principles applicable to appeals against the exercise of a discretion. In House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v The King) (at 504-505), in an oft quoted passage, the majority (Dixon, Evatt and McTiernan JJ) of the court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
4. In Martin v NRMA Insurance Ltd [1998] ACTSC 237 (12 June 1998) (at [14]), Crispin J accepted that the principles referred to in House v The King apply to appeals from an interlocutory order of the Master.
5. This appeal involves a matter of practice and procedure and the Court will exercise particular caution in reviewing the Master's decision: see Stelmag Pty Ltd v Tifferley Manufacturing Pty Ltd and Robert John King and Susan Rosalie King [2003] ACTSC 49 (18 June 2003) (at [2]) citing Wilson, Dawson, Toohey and Gaudron JJ in Contender 1 Ltd v LEP International Pty Ltd [1988] HCA 60; (1988) 82 ALR 394 (at 397).
6. Although the rules for appeal (in particular the Court Procedure Rules 2006 (ACT) (CPR) r 5013) then did not require grounds of appeal, the appellant's solicitors provided the following grounds:
7. The plaintiff's case as pleaded in the statement of claim to the originating claim was that the first defendant was the company that owned or operated a gymnasium which provided personal trainers for its members. The incident of which proceedings were commenced occurred on 12 August 2005; a personal trainer employed by the first defendant, who is identified as Patrick Lyons and is later to be joined as third defendant, manipulated the plaintiff's back, causing injury to the plaintiff. The plaintiff commenced the proceedings in this Court on 14 March 2008 against the first defendant. The original statement of claim did not set out particulars of any negligence of the third defendant, or assert that the first defendant was vicariously liable for any negligence of the third defendant (the appellant). The originating claim was served on the first defendant on 20 March 2008. It was also later alleged that the second defendant leased the premises from the first defendant and operated and managed the business.
8. On 23 July 2008, the plaintiff made an application pursuant to rr 220 and 504 of the CPR to join the second and third defendants to the proceeding.
9. At the hearing of that application before the acting Deputy Registrar on 4 August 2008, the plaintiff relied upon an affidavit of service dated 28 July 2008 which stated that the third defendant had been served by express post. No point is taken with respect to service on the second defendant. An order adding the second and third defendants as parties was made.
10. The solicitor having the conduct of the action on behalf of the plaintiff was unaware of the requirements in rr 223 and 6008 of the CPR. Rule 223(2) requires that an application to include a person as a defendant must be served on the person. Rule 6008(3)(a) provides that an application to be served on a person, who is not an active party, must be served personally unless the Court otherwise orders. Not being informed that personal service was required in the case of the third defendant, the acting Deputy Registrar made the order joining both the second and third defendants to the proceeding.
11. On 6 August 2008, an amended originating claim with amended statement of claim showing the second and third defendants as parties was filed. The amended statement of claim set out a claim including particulars of negligence against the third defendant. The limitation period applicable to the plaintiff's claim is three years from the date of injury. In this case, it expired on 12 August 2008.
12. On 21 August 2008, the amended originating claim was personally served on the third defendant.
13. On 10 September 2008, the third defendant filed a conditional notice of intention to respond proposing to assert an irregularity. The application under r 40 of the CPR to set aside the order joining the third defendant was made on 5 December 2008 (cf r 111(3) of the CPR which requires the application to be made within 28 days after the day the notice is filed).
14. On 28 January 2009, the first and second defendants, represented by the same firm of solicitors, filed their defences and the second defendant also filed a notice claiming contribution or indemnity from the third defendant. The defences of the first and second defendants denied that the third defendant was either their employee, agent or servant.
15. The Master heard the application to set aside the acting Deputy Registrar's order joining the third defendant on 13 February 2009. Mr Stretton, who appeared as counsel for the appellant before the Master (and before me), contended that because there had been no personal service of the original application to join the appellant, there was a fundamental defect in the proceedings which cannot properly be described as an irregularity and that the person who is affected by such an order is entitled ex debito justitiae to have it set aside.
16. Craig v Kanssen [1943] 1 KB 256 was referred to in support of that proposition, per Lord Greene MR (at 262):
... a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside.
17. Mr Stretton also relied on the judgment of the NSW Court of Appeal (Mason P, Priestley and Beazley JJA) in Hoskins v Van Den-Braak (1998) 43 NSWLR 290 (Hoskins). In that case, the Court of Appeal had set aside a local court judgment against a person who had not been served with the claim upon which the judgment was based. The Master distinguished the authorities cited by Mr Stretton and noted in his decision:
[25] I accept that the principle applied in Craig v Kanssen is applicable in Australia as part of the common law. The principle must, however, be viewed in the light of section 68 of the Court Procedures Act and rule 1450.
[26] The decision in Hoskins v Van Den Braak is not particularly apposite to the present circumstances. That arose out of a case which had proceeded to hearing and judgment: it was too late for the exercise of any statutory powers which might have got the litigation back onto a proper footing.
18. The hearing of this appeal came before me on 24 July 2009. Mr Stretton put his submissions on the grounds of appeal but also sought to submit that the Master had erred in exercising his discretion in refusing to set aside the order of the acting Deputy Registrar. The matter was then adjourned to allow the appellant to file written submissions in relation to that issue which had not been raised by the grounds of appeal. Further submissions were to be made in relation to the grounds of appeal relating to the order for costs. The first respondent was also to have the opportunity to respond to the appellant's submissions. The hearing resumed on 6 May 2010 and the appeal, save as to costs, was dismissed on that day with written reasons reserved. These are those reasons.
19. Section 68 of the Court Procedures Act 2004 (ACT) (Court Procedures Act) provides:
68 Formal defects to be amended
(1) No proceedings in the court shall be invalidated by any formal defect or by any irregularity, unless the court is of opinion that substantial injustice has been caused and that the injustice cannot be remedied by an order of the court.
(2) The court may make an order declaring that any proceeding is valid notwithstanding any such defect or irregularity.
1450 Effect of failure to comply with rules
(1) A failure to comply with these rules in relation to a proceeding is an irregularity and does not make the proceeding, or a document, step taken or order made in the proceeding, void.
(2) If there has been a failure to comply with these rules in relation to a proceeding, the court may -
(a) set aside all or part of the proceeding; or
(b) set aside a step taken or order made in the proceeding; or
(c) declare a document or step taken to be void; or
(d) declare a document or step taken to be valid; or
(e) make another order that could be made under these rules (including an order dealing with the proceeding generally); or
(f) make any order dealing with the proceeding generally that it considers appropriate.
(3) However, the court must not -
(a) set aside a proceeding only because the proceeding was started by the incorrect originating process; or
(b) set aside an originating process only because the incorrect originating process was used.
(4) The court may act under subrule (2) on application by a party or on its own initiative.
21. I have no difficulty with the proposition that a general statute does not take away established common law rights unless there is a clear intention to do so on its face or an expression that provides that it does (see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543).
22. The decision in Hoskins, referred to earlier, may be accepted for the proposition that where, if a person or anyone retained on his behalf has not been served with a claim upon which a final judgment was based, the person is entitled to have the judgment set aside as the proceedings are a nullity. However, this does not assist to determine whether a failure of service of an application to join a party constitutes a nullity.
23. Hoskins was concerned with a determination of the case against a party. That is shown by the citation in Hoskins (at 294) of Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 where Rich J said:
... It is a fundamental principle of natural justice, applicable to all courts
whether superior or inferior, that a person against whom a claim or charge
is made must be given a reasonable opportunity of appearing and
presenting his case. If this principle be not observed, the person affected is
entitled, ex debito justitiae to have any determination which affects him set
aside; and a court which finds that it has been led to purport to determine a
matter in which there has been a failure to observe the principle has
inherent jurisdiction to set its determination aside (Craig v Kanssen [1943]
KB 256 at 262). In such a case there has been no valid trial at all. The
setting aside of the invalid determination lays the ghost of the simulacrum
of a trial, and leaves the field open for a real trial ....
24. In my view, the defect must be fundamental to the trial of the matter in issue before it can be said to be something more than an "irregularity". The interlocutory nature of the order the appellant is seeking to set aside in this matter as a nullity is not a feature as far as I have been able to ascertain of any of the cases cited to me and is the feature that distinguishes it from the matter under consideration in Hoskins and the cases that Hoskins applies. The orders that have been set aside in those cases have been orders that have been final in the sense of finally determining the rights of the parties with respect to a particular aspect, usually by the entry of judgment. The order that has been made in this case is an order which does not in any way finally determine the rights of the parties in respect of the issue with which it is concerned. Rule 230 of the CPR provides that:
230 Removing parties
(1) The court may order that a person be removed as a party to a proceeding if the person -
(a) has been inappropriately or unnecessarily included as a party; or
(b) has stopped being an appropriate or necessary party.
(2) The court may make an order under this rule -
(a) at any stage of the proceeding; and
(b) on application by a party to the proceeding or on its own initiative; and
(c) whether the person to be removed is a plaintiff or defendant.
25. Even under the more restrictive regime of the corresponding English order permitting relief from irregularities, Lord Upjohn, in Re Pritchard [1963] 1 Ch 502 (Re Pritchard), reviewed the cases concerning nullities and irregularities and said (at 523):
I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord. 70 [which bears some similarity to r 1450 of the CPR] applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to the complain of the defect ex debito justitiae. Lord Denning in MacFoy pointed out that a useful test was whether the defect could be waived.
26. Shortly after the decision in Re v Pritchard, Ord. 70 referred to in that case was replaced by a new order similar in structure and its terms to r 1450 of the CPR declaring that failure to comply with the rules is an irregularity and does not nullify the proceedings or a step taken in those proceedings. In Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 (at 735 and 736), Lord Denning MR observed:
This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that "it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation." That could not be said in 1963: see In re Pritchard, decd. But it can be in 1966. The new rule does it.
27. In Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd and Others (1989) 17 NSWLR 734, Priestley JA, with whom Samuels JA agreed, adopted Lord Denning's formulation of the effect of the new rule as applicable to the equivalent NSW provision. It is equally applicable to r 1450 of the CPR.
28. The order that was made by the acting Deputy Registrar was clearly an interlocutory order. I am unable to see that by granting it without the application being properly served, is anything more than an irregularity. The challenge to the Master's decision on this aspect must fail.
29. It became apparent at the initial hearing of this matter on 24 July 2009 that Mr Stretton wished to also challenge the Master's exercise of discretion in refusing to set aside the order of the acting Deputy Registrar. Accordingly, I directed that there be further written submissions and a copy of the transcript of the proceedings before the Master be provided.
30. Written submissions on behalf of the appellant were filed on 1 October 2009 and the first respondent filed his response on 1 March 2010. On 6 May 2010, I heard further oral submissions from the parties. The principal submission that the appellant sought to advance was that once the Master had determined that it is an irregularity, his discretion should have been exercised in favour of the appellant to set aside the joinder. In order to do so, the appellant must accept the burden of showing that there has been a wrong exercise of discretion having regard to the principles in House v The King set out in [3] above.
31. Mr Stretton submits that the Master proceeded on extraneous or irrelevant matters and did not take into account material considerations. In support of these propositions, I was referred to the following matters of which Mr Stretton says are irrelevant or extraneous to the Master's reasoning.
32. First, it was submitted that it was irrelevant as to whether or not, after the expiration of the limitation period, the amended originating claim, statement of claim and a notice claiming contribution and indemnity had in fact been served on the appellant. To the contrary, it seems to me that such a consideration forms a part of the relevant circumstance that after the expiration of the limitation period, the amended originating claim was served on the appellant and the appellant was then notified of the proceedings. It was referred to by the Master as part of the background to the application that he was considering. It also took the matter out of that category of cases where a party had not been made aware of the proceedings at all (cf Re Pritchard (at 524)).
33. Secondly, it was submitted that it was irrelevant to speculate what the position may have been if the first respondent had taken a different course, namely, started proceedings on 6 August 2008 before the limitation period expired, in circumstances where this did not occur. This matter must have relevance as to whether in terms of s 68 of the Court Procedures Act a substantial injustice has been caused. Had the limitation period expired before the date of the order, the appellant would have been entitled to raise the substantial injustice by denial to him of the limitation defence.
34. Thirdly, it was submitted that it was irrelevant as to whether an application to join the appellant, if properly served and opposed, might have succeeded in circumstances where such a circumstance did not occur. That submission cannot succeed. Section 68 of the Court Procedures Act is predicated on whether the irregularity could cause a substantial injustice. The issue of what the appellant could have put in opposition to the joinder order was very much to the point. There were matters before the Master as to the circumstances surrounding the cause of action as well as an issue concerning compliance with s 51 of the Civil Law (Wrongs) Act 2002 (ACT). I am satisfied that the Master had regard to these considerations and that it was proper that he do so.
35. Fourthly, it was submitted that the expectation that if the third defendant was removed from the proceedings he would be joined by the second defendant was either irrelevant, a mistake as to facts or a failure to take account of a material consideration.
36. The issue of the first and second defendants issuing a third party notice to the third defendant in the event of the order joining the third defendant being set aside was specifically raised by the solicitor for those parties. Again, it is a matter that goes to the issue of substantial injustice and, in my view, cannot be said to be irrelevant. The point taken by the appellant that by the time the Master delivered judgment, the time for filing a third party had expired, does not seem to me to have any merit. Time had not expired at the date of the hearing before the Master and leave to give a third party notice out of time would no doubt have been readily granted.
37. As appears from the foregoing, I agree with the Master's exercise of his discretion against the appellant and say that I would have exercised the discretion in the same way as the Master did.
38. Based on the findings set out above, I am of the opinion that the appeal should be dismissed.
39. In his further submissions on behalf of the appellant, Mr Stretton pointed out that the order for costs made by the Master was determined without the parties being given an opportunity to be heard on the issue and the order for costs that was made was not foreshadowed or canvassed in any way whatsoever in the course of the argument. In light of that submission, I thought it appropriate that the parties be given the opportunity to put their case to the Master on costs. It seemed to me that the Master was in the best position to determine this issue. As a consequence, I ordered that the costs order made by the Master be remitted to the Master to hear submissions by the parties on that aspect. Subsection 9(4) of the Supreme Court Act permits me to make any order that, in all the circumstances, I consider just.
40. In respect of costs of this appeal, it seems to me that costs should generally follow the event but, after discussion with counsel, and with their agreement, I ordered that the appellant pay 90 per cent of the costs of the appeal and the first respondent pay 10 per cent.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Counsel for the Appellant/Third Defendant: Mr G Stretton SC
Solicitor for the Appellant/Third Defendant: Elrington Boardman Allport
Counsel for the First Respondent/Plaintiff: Mr S Hausfeld
Solicitor for the First Respondent/Plaintiff: Stacks//Snedden Hall & Gallop
Lyons
Labathas, Sports Centres Australia Pty Ltd t/as Canberra International Sports & Aquatic Centre and The Club Group Pty Limited [2010] ACTSC 93
(1936) 55 CLR 499
(1988) 82 ALR 394
(1998) 43 NSWLR 290
(2002) 213 CLR 543
(1944) 68 CLR 571
(1989) 17 NSWLR 734
Appeal dismissed except as to the Master's costs order, which was set aside and remitted to the Master for determination; costs of the appeal apportioned 90% to appellant and 10% to first respondent (see [1], [39]–[40]).