Payne v Young

In the statement of claim the various plaintiffs make a common claim against all the defendants concerning the invalidity of the regulations. Each plaintiff, however, goes on to make an individual claim against one defendant only for the repayment of fees paid to that defendant. Thus each relevant defendant has only a single claim made against it for repayment of money paid under compulsion or paid under a mistake of law.

I do not think it can be said that the claims for sums of money are for relief in respect of or arising out of the same transaction or series of transactions. It is true that it has been held that the rules should be construed in a liberal sense so as to permit joinder of parties wherever reasonably practicable (see Re Beck [1] and Payne v. British Time Recorder Co. [2] ). The most that can be said here is that the claims arise out of similar transactions or several series of similar transactions. I do not think the rule can be extended to cover such a case. Therefore I am satisfied that the case does not fall within O. 16, r. 1 and that under O. 16, r. 4 the names of the parties improperly joined should be struck out.

1. (1918) 87 L.J. (Ch) 335. 2. [1921] 2 K.B. 1.

There is no logical basis for distinguishing between the various plaintiffs for the purpose of determining which ones are "improperly" joined, other than by reference to the fact that the only application for striking out is made by the first, second and eighth defendants. So far as they are concerned the only claim made against them which involves a claim for recovery of money paid is by the sixth plaintiff. If the action had been concerned only with the declaration of invalidity there would have been no objection to the joinder of all the plaintiffs.

The claims for recovery of money involved quite distinct issues which would involve the investigation of different sets of facts in respect of each plaintiff. In the circumstances the applicants are entitled to an order amending the writ by striking out the names of all plaintiffs save the sixth plaintiff, George Weston Foods Ltd. There are, however, two further questions which arise. The first concerns the purported amendments to the writ and statement of claim made on 12th January 1979.

Order 29, r. 2 permits amendment of the statement of claim without leave within the time specified, but the writ itself cannot be amended except by order of the Court and that includes amendment by striking out the parties. If the plaintiffs wish to have the original seventh plaintiff and the corresponding defendant struck out from the writ, I am quite prepared to make an order to that effect, but it should in the circumstances be a separate order from the one sought by Mr Parker. The second point which arises is that if all the plaintiffs other than the sixth plaintiff are struck out, appropriate amendments will be required both to the writ for striking out the names of the coresponding defendants and making appropriate changes in the statement of claim itself.

If the parties wish me to do so, I will make the appropriate order with regard to striking out relevant defendants but I would like to hear counsel briefly on those two points. I think I should in any event give general liberty to the sixth plaintiff, George Weston Foods Ltd., to amend the statement of claim generally.

The appellants appeal against an order made by my brother Aickin striking out the names of all the plaintiffs in the action except the sixth and seventh named plaintiffs. His Honour was of opinion that the terms of O. 16, r. 1 (a) were not satisfied so as to entitle the joinder of all the plaintiffs in the action. Order 16, r. 1 is as follows:

(a) a right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist in more than one person, whether jointly, severally or in the alternative; and

(b) if those persons brought separate proceedings a common question of law or fact would arise,

those persons may be joined in one proceeding as plaintiffs.

The plaintiffs assert that each has a right to relief in respect of or arising out of the same transaction or series of transactions.

Each of the plaintiffs carries on business as an abattoir, slaughtering animals for human consumption. By virtue of regulations made under the Health Act, 1911 W.A., as amended ("the Regulations"), every animal slaughtered for food and every carcass or portion thereof imported for food must be inspected by an inspector and an inspection fee must be paid. There is a different scale of fees applicable to different premises. The amount of the inspection fees payable by the plaintiffs is not common to all the plaintiffs. Some of the plaintiffs have been charged according to one scale, some according to another, and one of the plaintiffs according to a different scale again.

The plaintiffs have not paid the inspection fee to the same defendant. There are, in fact six defendants to the action to whom inspection fees have been paid, in each case by one of the plaintiffs.

The plaintiffs claim that the inspection fee payable under the Regulations is an excise and, as it is imposed by State legislation, it is void, excise being within the exclusive jurisdiction of the Commonwealth: s. 90 of the Constitution. It is unnecessary for present purposes to refer to any of the reasons given by the plaintiffs for this claim. Quite clearly, each plaintiff has a common interest with each other plaintiff in the claim that the inspection fee is invalidly imposed.

It is noticeable that the rule speaks of plaintiffs in whom any right to relief is alleged to exist. But the right to relief must be in respect of, or arising out of, the same transaction or series of transactions. Now the claim for a declaration of invalidity of the regulation imposing the inspection fee does not arise out of any transaction. The declaration might be sought by any of the plaintiffs without having paid any inspection fees at all. The existence of a State law, if it does impose a duty of excise, is all that is necessary to raise a right to relief by way of declaration of invalidity if the plaintiff has a sufficient interest. Thus, the claim to a declaration in this case is not a right to relief which arises out of any transaction or any series of transactions.

But the relief claimed in the action is not confined to a declaration of invalidity. Each plaintiff claims against a defendant a sum of money representing the amount of inspection fees which have been paid by that plaintiff to that defendant. No plaintiff has any interest in the money claim of any other plaintiff, nor is any defendant concerned with the amount claimed against any other defendant. A right to recovery of the money sums is individual to each plaintiff and particular to the appropriate defendant. The right in each case arises out of the payment by the particular plaintiff to the particular defendant of the inspection fee demanded pursuant to the Regulations. The fees have been paid in respect of inspections of different parcels of meat or of different animals over a period of time. Thus, it would be right to say of each plaintiff that its money claim arises out of a series of transactions, that is to say, his own transactions with a particular defendant. But the plaintiffs say that the right to relief, that is to say, the relief by way of payment of a money sum, arises out of the same series of transactions. There is clearly no transaction to which all the plaintiffs are party, nor indeed, if it matters, is there any claim by any plaintiff to which all the defendants are really parties. Of course, the basis of the individual's claimed relief by payment of a money sum is common to all. All claim invalidity and because of invalidity in each case the right to be refunded by a particular defendant money improperly demanded would arise. But I am quite unable to see how the transactions of each plaintiff with a different defendant can be treated as a series of transactions within the meaning of the rule, however liberally one might construe and apply it. I agree entirely with my brother Aickin when, in giving judgment in the matter, he said: "The most that can be said here is that the claims arise out of similar transactions or several series of similar transactions." I also agree entirely with my brother in thinking that the rule cannot be extended to cover these transactions. In my opinion, the several plaintiffs whose names were struck from the record by his Honour's order were improperly joined as plaintiffs in the claim for recovery of money. It is, of course, otherwise in the case for a declaration of invalidity.

In this appeal from an order of Aickin J. I have heard nothing in argument which would lead me to think that his Honour was in any way in error in concluding that the appellants' claims did not fall within the terms of O. 16 r. 1 (a). In view of what has been said both by the Chief Justice and by Mason J. in the judgments which they have prepared, I need do no more than express my concurrence in the dismissal of this appeal.

The question here is whether the right to relief by way of an order for repayment of inspection fees asserted by the seven named plaintiffs is a right to relief "in respect of, or arising out of, the same transaction or series of transactions" within the meaning of O. 16, r. 1 (1) (a). No objection is taken to the joinder of the seven named plaintiffs in connexion with the claim for a declaration that reg. 6 of the Meat Inspection and Branding Regulations made under the Health Act, 1911 W.A. is invalid on the ground that it constitutes an excise within the meaning of s. 90 of the Constitution - see Associated Stevedores Pty. Ltd. v. Tasmania [16] .

The problem which confronts the plaintiffs in this appeal from the order made by Aickin J. striking out the names of all but the sixth and seventh named plaintiffs is that the inspection fees now sought to be recovered which were compulsorily exacted by five of the defendants and paid by the plaintiffs were charged by a particular defendant to an individual plaintiff for inspections carried out at premises occupied by the particular plaintiff at rates prescribed as being appropriate to the district in which the premises were situated. Each plaintiff therefore has a separate cause of action against a particular defendant for the inspection fees which he seeks to recover, no other plaintiff having an interest in that cause of action or in its subject matter.

The separate character and quality of the cause of action alleged by each plaintiff and of the transactions from which each cause of action arises are demonstrated by the provisions of the regulations and by the way in which the case for relief is formulated in the statement of claim. Regulation 6 (1) provides:

The occupier of every premises where meat is inspected in accordance with these regulations shall pay the appropriate fee specified in Schedule C to these regulations -

(a) in the case of those premises in respect to which Scale "A" applies to the Commissioner; and

(b) in the case of those premises in respect to which Scale "B", "C" or "D" applies, to the local authority for the district.

Scales "A", "B" and "C" in Schedule C prescribe fees for particular inspection services, the fees prescribed in each scale differing from those prescribed in the other scales. The reference to "the Commissioner" is a reference to the Commissioner for Public Health, the second defendant.

The inspection fees which the sixth named plaintiff seeks to recover are fees which it paid to the second defendant according to Scale "A". The fees which the seventh named plaintiff seeks to recover are those which it paid to the seventh defendant according to Scale "C" and the fees which each of the other plaintiffs seeks to recover are fees which it paid to one of the other defendant local authorities according to Scale "B". What each plaintiff seeks is an order that the particular defendant to whom it paid fees repay the amount of the fees so paid.

An alternative claim for recoupment is made by the third, fourth and sixth named plaintiffs. They allege that, despite the circumstance that the inspection service provided to each of them was performed by an officer of the Commonwealth of Australia, each of them was charged fees by the defendant from whom recovery is sought.

Argument centred on the meaning of the words "the same transaction or series of transactions" in par. (a) of O. 16, r. 1 (1). For the appellants (the plaintiffs) Mr. Horton argued that the words should be read as "the same transaction or a series of transactions", not as "the same transaction or the same series of transactions". For my part I doubt whether there is a distinct difference in meaning between the two alternatives which Mr. Horton offers for consideration. For the appellants to succeed, the paragraph would need to be read as if it referred to any series of transactions, whether they constituted the same series or a different series. To my mind this would be an unnatural reading of the language in which the paragraph is expressed. As a matter of English wording the word "series" is governed by the words "the same". The appellants' construction proceeds on the footing that something has been omitted, whether it be the indefinite article, as Mr. Horton would say, or, as I see it, words expressive of the notion of differing series.

The appellants suggest that the construction for which they contend is supported by authority and by the object of O. 16, r. 1, considered in the light of its history. I do not think that the authorities sustain this submission. True it is that Lord Macnaghten in Duke of Bedford v. Ellis, [17] in applying the rule to the facts there under consideration, used the expression "a series of transactions", but I do not read his Lordship's remarks as asserting that separate causes of action vested in several plaintiffs arising out of different series of transactions will suffice for the purposes of the rule.

The history of the English counterpart to O. 16, r. 1 and of the amendment made to it in 1896 in consequence of the decision in Smurthwaite v. Hannay [18] , and Carter v. Rigby & Co. [19] , has been discussed in a number of cases - see Stroud v. Lawson [20] ; Universities of Oxford and Cambridge v. Geo. Gill & Sons [21] ; Drincqbier v. Wood [22] ; and Duke of Bedford v. Ellis. It is evident that the amendment which brought the rule into the form which it now takes in the Rules of this Court was based on the comments made by Bowen L.J. in his dissenting judgment in Hannay & Co. v. Smurthwaite [23] , where his Lordship pointed out that the words in the old rule were not, "any right to relief", but " the right to any relief". His Lordship went on to say, with reference to earlier remarks which had been made by Lord Esher M.R. in the same case:

If by "identity of the transaction" it is meant that the transaction is the same and the only question is, in whom the legal right to relief in respect of it exists, and to whom the damage has been done in the eye of the law, then I do not know that there would be much difference between our views; but if a popular meaning is to be given to the word "transaction," and it is used as meaning that because a certain element of evidence is common to two or more transactions, they are to be treated as one for this purpose, then I cannot agree with the view of the Master of the Rolls. I think that there must be identity in all respects except as to the question who is the right person to sue, and who is the person injured. 1. [1894] A.C. 494. 2. [1896] 2 Q.B. 113. 3. [1898] 2 Q.B. 44. 4. [1899] 1 Ch. 55. 5. [1899] 1 Ch. 393. 6. [1893] 2 Q.B. 412, at pp. 424-425.

The object of the amendment was to allow several plaintiffs to join separate causes of action where under the old rule as interpreted by judicial decision they could not do so. Subject to the two limitations expressed in pars. (a) and (b) of the rule, it permits the joinder of separate causes of action which have accrued to different plaintiffs. The effect of the rule was, in my opinion, correctly stated by Vaughan Williams L.J. in Stroud v. Lawson when he said [24] :

I do not think that the rule means that the whole of a transaction must be involved in each of the causes of action joined. I think that, if there was a transaction or series of transactions in respect of which one plaintiff was interested up to a certain point, and other plaintiffs were interested, not only up to that point, but in respect of the entire transaction or series of transactions from beginning to end, under this rule they might join their separate causes of action in one action, because there would be one transaction or series of transactions in respect of which the various plaintiffs all claimed a right to relief. Their remedies or damages might be different, but they would be claiming relief in respect of the same transaction or series of transactions. To these observations I would add the comment that the rule may well authorize the joinder of separate causes of action accruing to various plaintiffs against different defendants, so long as the causes of action arise out of the same transaction or series of transactions. 1. [1898] 2 Q.B., at pp. 54-55.

The consequence is that under par. (a) of the rule joinder of separate causes of action accruing to different plaintiffs is authorized when the relief claimed is in respect of, or arises out of, the same or a particular series of transactions. Joinder is not authorized when the relief claimed is in respect of, or arises out of, two or more different series of transactions, when the participation of each individual plaintiff is limited to participation in one series of transactions, the other plaintiffs not participating in that series.

In the present case, each series of transactions was peculiar to each individual plaintiff. There was no common participation in the inspection services which were performed, in the liability to pay the fees demanded or in the payments which were actually made. Accordingly, it cannot be said that the relief claimed by way of recoupment of inspection fees from the defendants other than the first and eighth defendant is in respect of, or arises out of, "the same transaction or series of transactions".

In the result the order made by Aickin J. was correctly made and I would dismiss the appeal.

The appellants claim that each of them has been wrongly charged fees for cattle slaughtering by local government authorities in Western Australia. The authorities charges fees under reg. 6 of the Meat Inspection and Branding Regulations made under the Health Act, 1911 W.A.. Each of the appellants dealt with a different authority. The appellants, as plaintiffs, joined their separate claims against the authorities as defendants and also joined the Minister for Health and the Head of the Department of Public Health which was responsible for administering the Regulations. The appellants claimed a declaration that the regulation is invalid and an order for the return to each appellant of the amounts paid under the regulation.

The appellants contend that they have properly joined the defendants under r. 1 of O. 16 (Parties) of the High Court Rules, which states:

(a) a right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist in more than one person, whether jointly, severally or in the alternative; and

(b) if those persons brought separate proceedings a common question of law or fact would arise,

those persons may be joined in one proceeding as plaintiffs.

(2) Where, upon the application of a defendant, it appears that the joinder may embarrass or delay the trial or hearing, the Court or a Justice may order separate trials or hearings, or make such other order as is expedient, and judgment may be given for such one or more of the plaintiffs as are found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.

They assert that this contention is supported by the history of the equivalent English rule (from which the High Court rule is copied). The rule in the United Kingdom, before it was amended in October, 1896 was: All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. A number of cases reveal differences of opinion on the scope of the rule. The most important of these was Smurthwaite v. Hannay [25] . Several shippers sent bales of cotton on a general ship under similar bills of lading. On arrival, the cargo was short and some of the bales were not identifiable. Sixteen holders of bills of lading (nine shippers and seven consignees) joined in one action against the shipowners claiming damages for non-delivery. The Court of Appeal held that the causes of action were properly joined (Hannay & Co. v. Smurthwaite [26] . This was reversed in the House of Lords, where the appellant contended that "There is not one transaction, but a series of different transactions" [27] . 1. [1894] A.C. 494. 2. [1893] 2 Q.B. 412. 3. [1894] A.C., at p. 497.

The several consignments may have been and probably were delivered to the shipowner by different persons at different times, and under different circumstances The result of the respondent's contention would be that any number of plaintiffs might join together to sue any number of defendants in respect of causes of action not common to either plaintiffs or defendants. Lord Russell of Killowen said [29] : It seems to me that a serious ambiguity lies in the use of the words "same transaction" as here applied. I think that the causes of action here did not arise out of the same transaction. They arose out of similar but entirely distinct transactions, creating similar but entirely distinct legal liabilities. The goods of the several plaintiffs were, no doubt, sent in the same ship from the same port of shipment to the same port of discharge, and in that sense the plaintiffs may be said to have been parties to the same transaction; but in that sense only. The property in the goods was distinct in the case of each shipper, and the contracts of carriage were likewise distinct. There was no community of interest or of property as between the plaintiffs. In truth, the transaction was not one and the same. There were several transactions, similar indeed, but different and distinct from one another. The rule (O. XVI, r. 1) was widened in October 1896 to read: All persons may be joined in one action as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative. The alteration was plainly to overcome the decision in Smurthwaite v. Hannay and to allow joinder of claims arising "out of similar but entirely distinct transactions creating similar but entirely distinct legal liabilities". The rule was considered in Duke of Bedford v. Ellis [3] where a number of plaintiffs sued on behalf of themselves and all other fruit, flower and vegetable growers within the meaning of the Covent Garden Market Act, 1828 to enforce various preferential rights to market stands claimed under the Act, against the lord of the market. The House of Lords held that the claims were properly joined. Although the claim was made in a representative capacity, the question of whether the individual plaintiffs could join was considered. Lord Macnaghten stated [4] : The language of Order XVI., r. 1, is very wide. It must cover the case of several creditors, joining as co-plaintiffs in a creditor's action. Their debts are separate, and just as much or just as little "a series of transactions" as the separate grievances of which the growers in this action complain. Assuming that the defendant has rejected the claims of the several plaintiffs on the ground that, according to the true construction of the Act, growers have no preferential claims to which he is bound to give effect, it appears to me that you have a series of transactions where, if the plaintiffs sued separately, a common question of law would arise. Lord Shand stated [5] : These statements seem to me to amount clearly to an averment not only of the existence of preferential rights, and of the same or substantially the same preferential rights in all the plaintiffs, but to a charge against the appellant that he violates these rights, or refuses to give effect to them, and it follows that the plaintiffs have the same interest in the cause or matter of the complaint. There is no difference in their claims. They all ask the same remedy, which it is unnecessary to specify further than to say they all claim to have a declaratory decree by the Court which shall give effect to their statutory privileges the same in the case of each of them, as growers of fruit, flowers and vegetables, and an injunction to restrain the appellant from doing any act contrary to such declaratory decree. There is thus one cause or matter only in which all of the plaintiffs have an interest, and in which other "growers" have the same interest, as disclosed in the record, that matter being the disregard by the defendant of their statutory privileges, for which accordingly one and the same remedy in the form of the different heads of claim is asked. To that case the rule in question seems to me in its terms directly to apply, and accordingly, the objection to the competency of the action is, I think, unfounded.

[a] claim by each of the plaintiffs for repayment to him of alleged excess charges for six years for market accommodation is a subsidiary matter it will be found convenient to both parties to have the subsidiary matter of excessive charges determined in the same cause; and I do not see any ground for holding that it is incompetent to do so.

1. [1894] A.C., at pp. 500-501. 2. [1894] A.C., at p. 503. 3. [1901] A.C. 1. 4. [1901] A.C., at p. 12. 5. [1901] A.C., at pp. 16-17.

The respondent in this appeal found, it seems to me, difficulty in distinguishing the Duke of Bedford's Case (where there was only one defendant) other than by pointing to the multiplicity of defendants here. But O. 16 permits the joinder of claims quite separate except for the element of connexion through "the same transaction or a series of transactions". The existence of several defendants, each of whom has no connexion with any other defendant (except for the element of the same transaction or series of transactions) does not take the case out of r. 1. This is recognized by rr. 7 and 8 which state:

7. Where a right to relief is alleged to exist against more than one person, whether jointly, severally or in the alternative, those persons may be joined as defendants and judgment may be given against such one or more of them as are found to be liable, according to their respective liabilities, without any amendment.

(1) It is not necessary that every defendant be interested as to all the relief prayed for, or as to every cause of action included in a proceeding against him.

(2) The Court or a Justice may make such order as appears just to prevent a defendant from being embarrassed, or put to expense, by being required to attend proceedings in which he has no interest.

Suppose in the Duke of Bedford's Case several other landlords acted in the same way to their tenants. If the actions of the Duke towards different tenants, giving rise to separate rights to relief, were properly regarded as a series of transactions, the actions of various landlords in respect of their various tenants each doing to each of his tenants what the Duke did to each of his, should also constitute a "series of transactions".

Other English cases on joinder and on the related rules on representation show that these rules can be read and applied either narrowly or liberally (see Universities of Oxford and Cambridge v. Geo. Gill & Sons [6] ; Drincqbier v. Wood [7] ; Bendir v. Anson [8] ; Prudential Assurance Co. Ltd. v. Newman Industries Ltd. [9] ; Markt & Co. Ltd. v. Knight Steamship Co. Ltd. [10] ).

1. [1899] 1 Ch. 55. 2. [1899] 1 Ch. 393. 3. [1936] 3 All E.R. 326. 4. [1981] Ch. 229. 5. [1910] 2 K.B. 1021.

A liberal view has been taken in America and Canada. For example, in Allan v. McLennan [11] where a salesman induced numerous persons to buy parts of a block of shares on the same misrepresentation, the British Columbia Court of Appeal held that the various sales constituted a "series of transactions" entitling the purchasers to join as plaintiffs. In Broderick v. Abrams [12] , the rule stated was that "the plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions". Heher J. of the Supreme Court of New Jersey said of the plaintiff bank suit against 559 stockholders [13] :

While the complaint counts upon several liabilities grounded upon separate contracts, they arose out of "transactions" that are of kin, and are therefore of a "series" within the intendment of the statute and the rules designed to effectuate its object. (See also Metropolitan Casualty Insurance Co. v. Lehigh Valley R. Co. [14] ; Beatty v. Lincoln Bus Co. [15] .) 1. (1916) 31 D.L.R. 617. 2. (1935) 181 A. 321. 3. (1935) 181 A., at pp. 322-323. 4. (1920) 109 A. 743. 5. (1933) 169 A. 286.

In Barnes and Co. Ltd. v. Sharpe [16] , Griffith C.J. was disposed to think that the case in which several persons joined in an action for defamation (without any pecuniary interest such as that of partners) fell within the terms of a similar order (Rules of Supreme Court Q., O. 3, 5. 1).

The words which define the scope of the rule are wide words. Transaction should be given a generous meaning (Birtles v. Commonwealth [17] , Adam J. In this context, it means some business or affair (see Shorter Oxford English Dictionary). "Series" means "a set of similar things or events" (Collins Shorter Contemporary Dictionary). The various meanings in the Oxford English Dictionary shows that "series" is a very general and vague word, which contains a notion that series consist of those things or events which are connected in some way by time, place, or similarity. In this context, it is equivalent to "class". The expression "series of transactions" is thus so wide that it is difficult to place limits on it. This means that r. 1, if unqualified, could be used to join claims the trial of which would lead to embarrassment and delay. The means to avoid this is provided for in rr. 1 (2) and 8 (2).

Rule 1 is remedial, intended to overcome the difficulties in the older English rule and should be given a beneficial not a restrictive interpretation. If it is to be read narrowly, it should be amended to encompass claims such as this. In this case, the rights to relief arise out of a series of transactions because in each a defendant charged a plaintiff slaughtering fees under colour of the challenged regulation. The other condition of joinder is the common question of law. In this case, the condition is satisfied. If the plaintiffs brought separate proceedings, a common question of law would arise, that is, whether reg. 6 under which the fees were charged is invalid as being an excise imposed by the State in contravention of s. 90 of the Constitution.

The appellants are entitled to join in one proceeding. The appeal should be allowed.