NORTH WEST PILOTS PTY LTD AS TRUSTEE FOR THE PORT HEDLAND PILOTS UNIT TRUST... [2023] WASC 98 | Case summary

[13] Statement of Claim [27], particular (xiv).

Supreme Court of WA|2023-03-28|Before: Hill J

For the reasons set out above, it is my view that the PPA's application to be joined as the second defendant to these proceedings should be allowed. My preliminary view is that the appropriate costs order should be the PPA's costs in the cause but will hear from the parties prior to making any orders.

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

[9] Statement of Claim [17], particulars (i) to (x).

[13] Statement of Claim [27], particular (xiv).

[16] Wurth Australia Pty Ltd v Burgess [2012] WASC 504 [57]; Ooranya Pty Ltd v ISPT Pty Ltd [No 2] [2019] WASC 453 [44] (Kenneth Martin J); Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460 [114] ‑ [115].

[17] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [116].

[18] Qantas Airways Pty Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34, 38 (Glass JA).

[19] China First Pty Ltd v Mount Isa Mines [2018] QCA 350; [2019] 3 Qd R 173.

[20] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1.

Arbitration Act 1985

(a) 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. Consequently, the phrase 'all matters in dispute' should be given a beneficial interpretation. The phrase should be afforded the widest interpretation that the language of the rule will permit.

(b) Further, the phrase gives the rule an 'elastic' application. The rule is not to be construed so that the matters in dispute are limited to matters arising on the existing pleadings. The disputed matters for the purpose of the rule may include disputed issues of fact that are 'subjacent' to the pleadings.

(c) In Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357, Devlin J observed that the expression 'the cause or matter' in the then equivalent English rule referred to the action 'as it stands between the existing parties' - '[i]f it were otherwise, then anybody who showed a cause of action against either a plaintiff or defendant could, of course, say that the question involved in his cause of action could not be settled unless he was made a party' (369; see also, at 378). Similarly, Adams J in Birtles v Commonwealth of Australia [1960] VicRp 39; [1960] VR 247 held that the reference to 'cause' in the then equivalent Victorian rule referred to the existing cause or matter against the original defendant (251).

(d) Although O 18 r 6(2) is to be interpreted beneficially, the test imposed by the rule is necessity; a party cannot be joined merely because it is thought to be just or convenient.

(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. 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):

NORTH WEST PILOTS PTY LTD AS TRUSTEE FOR THE PORT HEDLAND PILOTS UNIT TRUST TRADING AS PORT HEDLAND PILOTS -v- DANIEL [No 2] [2023] WASC 98 (28 March 2023)

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