Plaintiff v Defendants

Supreme Court of Victoria|2012-10-03|Before: LANSDOWNE AsJ

PRACTICE AND PROCEDURE - Removal of a defendant - Whether a Minister of the Crown is a necessary or proper defendant to a suit for a declaration that a decision made by the Governor in Council on that Minister's recommendation is invalid - Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd and ors [2004] VSC 390 discussed and applied - Supreme Court(General Civil Procedure) Rules 2005 Rule 9.06 - Removal refused - Minister held to be a proper but not a necessary defendant.

2 After the summons was filed the plaintiff served on the defendants a notice to produce copies of bills of costs prepared by the solicitors for the defendants evidencing time spent and cost incurred by those solicitors in relation to taking instructions from and advising the second defendant. The defendants objected to production of those documents on the grounds of relevance and legal professional privilege. The notice to produce was not pressed by the plaintiff at the hearing of the defendants' summons.

3 The proceedings commenced by writ and statement of claim filed 6 July 2011. The defendants filed a joint defence on 12 August 2011. Subsequently orders were made for discovery and mediation in September 2011. A mediation was conducted on 7 December 2011 without resolving the proceedings. Subsequent directions hearings were adjourned on 6 February 2012 and 19 March 2012 having regard to discussions between the parties in relation to discovery. Directions hearings listed for 23 April 2012 and 28 May 2012 were adjourned for the same reason. Orders were made by consent on 28 May 2012 that the defendants file and serve a supplementary affidavit of documents by 20 June 2012. The defendants' second affidavit of documents was filed on that date. On 16 July 2012, at a directions hearing, the plaintiff foreshadowed an application for further discovery and/or interrogatories. No such application was filed by the due date, being 6 August 2012. The defendants filed the current summons on that same date.

4 The plaintiff was appointed a Mining Warden by order of the Governor in Council on 10 February 2009 for the period 6 March 2009 to 5 March 2012. The appointment was made pursuant to s 96 of the Mineral Resources (Sustainable Development) Act 1990 ("MRSD Act"). Section 96 of that Act provides as follows:

(1) The Governor in Council may appoint as many persons to be mining wardens as are required for the purposes of this Act.

(2) The appointment of a person as a mining warden is subject to any terms and conditions that are specified in the instrument of appointment.

(3) A mining warden holds office for the term, not exceeding 3 years, that is specified in the instrument of appointment and is eligible for reappointment.

(a) the remuneration fixed from time to time by the Governor in Council; and

(b) the travelling and other allowances fixed from time to time by the Governor in Council.

(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a mining warden in respect of the office of mining warden.

(6) A mining warden may resign from office by delivering to the Governor in Council a signed letter of resignation.

(7) The Governor in Council may at any time remove a mining warden from office.

(8) If a mining warden was, immediately before his or her appointment, an officer within the meaning of the State Superannuation Act 1988, he or she continues, subject to that Act, to be an officer within the meaning of that Act while he or she continues in the appointment.

5 The plaintiff entered into a contract of employment with the first defendant, the State of Victoria, dated 10 February 2009 which is pleaded to be, and admitted to be, evidenced by the schedule to that order. By order of the Governor in Council made 9 March 2010, the plaintiff was removed from the office of Mining Warden pursuant to s 96(7) of the MRSD Act. The second defendant was the Minister in charge of the mining portfolio at the time of the plaintiff's appointment to and removal from office. He is no longer a Minister, or indeed a member of the government.

6 By these proceedings the plaintiff challenges the decision to remove him ("the decision") on a number of bases. He says that the decision was invalid because both defendant failed to give him notice, or adequate and sufficient notice, of the grounds, facts or matters that they proposed to take into account in determining whether or not he should be removed (paragraph 11 of the statement of claim). He says also that the decision was made for an improper purpose (paragraph 12 of the statement of claim) and makes this allegation against both defendants. The defendants deny the substantive allegations made in paragraphs 11 and 12 of the statement of claim as to inadequate notice and improper purpose. The plaintiff says that as a consequence of these matters, the decision was invalid and amenable to being quashed, and the first defendant, the State of Victoria, repudiated his contract of employment, which repudiation he has accepted. As a consequence, he has suffered loss. The defendants deny that the decision was invalid, admit that the contract was repudiated, but say it was done lawfully as of right, and deny the loss.

7 The plaintiff next pleads, as against the first defendant only, that the first defendant breached his contract of employment, occasioning loss. This is denied by the first defendant.

8 The third cause of action asserted by the plaintiff is set out in paragraphs 18 to 27 of the statement of claim. These paragraphs assert false representations as to the employment made by the first defendant (paragraphs 18 and 19); representations as to future matters made by the first defendant for which the defendants had no reasonable basis (paragraphs 18 and 20); and failure to disclose certain matters by the defendants (paragraph 21). The plaintiff says these representations and omissions were liable to mislead a person seeking employment, being the plaintiff, as to the availability, nature, terms or conditions of, or other matter relating to, the employment. As a consequence, they constituted a contravention by the defendants of s 13 of the Fair Trading Act 1999 (Vic) ("FTA") (paragraphs 22 and 23 of the statement of claim). This cause of action is denied by the defendants by their defence (paragraphs 18 to 27).

9 The fourth cause of action relied upon in the statement of claim is breach of duty owed by the first defendant only to the plaintiff (paragraphs 28 to 32 of the statement of claim). The first defendant denies that it owed any duty of care to the plaintiff in his capacity as candidate for an advertised appointment to avoid risk of harm to him in the nature of economic loss (paragraph 28 of the defence). The first defendant also denies the breach of that duty pleaded in paragraph 30 of the statement of claim. The defendants deny the loss said to have arisen from the breach of the pleaded duty (paragraph 32 of the defence).

10 The relief sought by the plaintiff in the prayer for relief is firstly a declaration that the decision was invalid, then a declaration that the first defendant repudiated the contract, damages, a declaration that the first defendant contravened s 13 of the FTA, damages pursuant to s 159 of the FTA, interest and costs. Thus, although the plaintiff has pleaded the contravention of the FTA as against both defendants, the declaratory relief expressly sought, and presumably the consequential damages, are sought only against the first defendant. The plaintiff does not dispute the contention advanced by the defendants that the only relief sought as against the second defendant is the declaration sought in prayer for relief A, that the decision to remove him from office was invalid.

At any stage of a proceeding the Court may order that -

(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

(b) any of the following persons be added as a party, namely -

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

12 The defendants' written submissions rely on the statement of relevant principles as to when a party is "necessary" or "proper" within r. 9.06(a) by Hollingworth J in Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd and ors[1]("Beamer"). Counsel for the defendants did not address this further in oral submissions, and counsel for the plaintiff not at all in either oral or written submissions. For the purposes of this application, I accept the statement of principles by Justice Hollingworth.

13 Justice Hollingworth held that a person is a necessary party for the purposes of r. 9.06(a) if the conditions for joinder under r.9.03 are satisfied. She held (citing authority) that a person is a proper party if either the conditions for joinder as a party under r.9.02 are satisfied or the conditions for joinder under r.9.06(b) are satisfied[2]. Rule 9.02 focuses on the commonality of questions of law or fact as a test for permissive joinder, and so is of little assistance in a case such as this where that commonality is conceded. Here it is the justice and convenience of the joinder, as put into consideration by r.9.06(b) (ii), that is in issue. Accordingly, I will focus on that rule in the discussion which follows, but set out Rules 9.02 and 9.03 for completeness.

Two or more persons may be joined as plaintiffs or defendants in any proceeding -

(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court, before or after the joinder, gives leave to do so.

(1) Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff -

(a) all persons so entitled shall be parties to the proceeding; and

(b) any person who does not consent to being joined as a plaintiff shall be made a defendant.

(2) Where the plaintiff claims relief against a defendant who is liable jointly with some other person and also liable severally, that other person need not be made a defendant to the proceeding.

(3) Where persons are liable jointly, but not severally, under a contract, and the plaintiff in respect of that contract claims against some but not all of those persons, the Court may stay the proceeding until the other persons so liable are added as defendants.

(4) The Court may make an order under paragraph (1) before or after the non-joinder.

15 Beamer concerned an application by a defendant for removal after the end of the trial and before judgment. The defendant had been added by the plaintiff without opposition after the trial commenced, and was subsequently made the object of a notice for contribution by other defendants. Prior to his joinder, those defendants had been content to pursue any claim for contribution by separate proceedings. The plaintiff consented to the removal, but the removal was opposed by the defendants who had issued the notice of contribution. The parties did not contend that the defendant in question was a necessary party, and so the discussion by Justice Hollingworth that follows her statement of principles focused on whether he was a proper party.

16 Justice Hollingworth held that, in what she described as the "unusual circumstances of this case", it was not "just and convenient" within r9.06(b)(ii) to require the defendant to remain a defendant. In coming to that conclusion, she paid particular regard to the following matters- the plaintiff's wishes; the other defendants' earlier conduct in being content to pursue a claim for contribution later if required; and the stage the trial had reached, which meant it would be necessary to recall witnesses if the defendant remained in the proceedings.[3] She was also of the view that he was not a "proper" party within r9.02 for the same reasons. Justice Hollingworth removed him as a party, and ordered that the questions the subject of the notice of contribution be heard and determined as a third party proceeding.

17 It is implicit in the discussion by Hollingworth J in Beamer and apparent from textual analysis of r.9.06(a), that a defendant who seeks to be removed must establish that he is neither a necessary nor a proper party. Accordingly, I approach the determination of this application on the basis that the defendants must show both that the second defendant is not a necessary party, and that he is not a proper party.

18 The plaintiff concedes that the only relief sought as against the second defendant, who is sued in his capacity as the then responsible Minister, is the declaration that the decision to remove the plaintiff was invalid. The defendants assert that this declaration can only properly be sought as against the first defendant, the State of Victoria, because the repository of the power of removal under s 96(7) of the MRSD Act, was not the Minister but the Governor in Council. In other words, the second defendant was not the relevant "decision maker".

19 The defendants further say that the first defendant, the State of Victoria, is vicariously liable in respect of any acts or omission of Mr Batchelor acting in his capacity as a Minister of the Crown and acknowledge that if the plaintiff makes out a claim for relief arising from any of Mr Batchelor's acts or omissions in that capacity, such relief will be met by the State of Victoria.

20 The defendants assert that if Mr Batchelor were removed as a party, the plaintiff will suffer no prejudice as it remains open to him to challenge the legality of the exercise of power under s 96(7) of the MRSD Act. Further, the defendants assert that there are no questions raised on the current pleading that will go unanswered in the absence of the second defendant as a party, and none of the relief sought by the plaintiff will be rendered ineffectual if the second defendant is removed as a party (paragraph 13 of the defendants' Outline of Submissions).

21 As against this, the defendants assert that there is some prejudice to the defendants if the second defendant is not removed. This prejudice is said to be an increase in costs (although there is no evidence as to the quantum of such increase, and the amount of any such increase is said, by the defendants, to be irrelevant) and the personal burden of being a party to litigation. There is no evidence from Mr Batchelor as to the extent of any such burden on him.

22 The written submissions for the plaintiff principally assert that the second defendant is a proper party, as opposed to a necessary one. The plaintiff says that the second defendant was the "effective" decision maker in relation to the decision to remove him from office, and is a proper party because he has taken an active stance in the defence by denying that the decision was invalid. The defence goes further and positively asserts on behalf of both defendants that the decision was validly made.

23 In oral submissions, counsel for the plaintiff asserted that as the effective decision maker, the second defendant is entitled to be heard in relation to the challenge to the decision and so is not only a proper party but also, arguably, a necessary one. Counsel for the plaintiff also disputed the contention that the plaintiff would suffer no prejudice if the second defendant was removed. The plaintiff says that he is entitled to defend his reputation, which was affected by his removal, and there is prejudice to him if the effective decision maker is removed from this challenge. The plaintiff also disputes the claim to prejudice to the defendants if the second defendant is not removed.

24 The defendants rely on observations made by Mason J in FAI v Winneke and ors[4] that although as a matter of convention the Governor in Council acts on the advice of Ministers or Cabinet, where legislation confers a power on the Governor in Council, it is the Governor in Council who is the "decision maker". On this basis the defendants say that the second defendant here, the Minister, is neither a necessary nor proper party.

25 That case concerned an alleged failure to afford natural justice in respect of the non-renewal by the Governor in Council of approval to offer workers compensation insurance. The Court held by majority (Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ; Murphy J dissenting) that the Governor in Council, who had the legislative power to approve insurers for workers compensation, was required to afford an insurer an opportunity to be heard before non renewal of the approval. That opportunity was to be afforded by the relevant Minister or his department, and not by the Governor in Council itself. The proceedings were initially instituted by the aggrieved insurer against the Governor, Attorney General and the relevant Minister. Early in the proceedings the trial judge dismissed the proceedings against the Governor and the Minister.

26 Although the majority in the High Court agreed that the obligation to afford an opportunity to be heard applied to the decision, there was a division of opinion amongst the majority as to the appropriate defendants. It is this aspect that is of direct relevance here. The division of opinion on that question in FAI v Winneke was informed in part by different views as to the appropriate remedy in that case. Stephen and Wilson JJ held[5] that the Governor should have been retained as a defendant, because of the requirement under the Administrative Law Act 1978 ("ALA"), pursuant to which the relief was there sought, to name as respondent to an order nisi the "tribunal" which made the impugned decision. They held that the Attorney General and, relevantly for current purposes, the Minister were proper defendants, because they answered the description in the ALA of persons "interested in maintaining the decision".

27 The Chief Justice, Mason and Brennan JJ held that the Attorney General was a necessary and sufficient defendant, on the basis a declaration could be made against him as the representative of the Crown, whether or not the procedure under the ALA was available.[6] They did not express a view as to whether or not joining the Minister was proper, but dismissed the appeal against his removal. Aickin J also considered declaration to be the appropriate remedy, but would have made a declaration that the decision of the Minister to recommend against renewal of the insurance approval and the decision of the Governor in Council were both void. He took this view because he regarded the "deciding mind" to be that of the Minister. He did not express a view as to whether or not the Minister should have been retained as a party, but expressed the view that the Governor was neither a necessary nor a proper party.[7]

28 Thus three of the four members of the majority who considered the appropriate remedy to be a declaration, which is the relief sought here, did not consider the Minister to be a necessary party. The Minister had already been removed as a party by the time the matter came before the High Court, and so the Court was not strictly required to consider if the Minister was a proper party. The views of Stephen and Wilson JJ that the Minister was, notwithstanding earlier removal, a proper party, although expressed in that case as arising under the ALA, add force, however, to the contention of the plaintiff that the second defendant here should be retained as a person who has asserted an interest in upholding the impugned decision.

29 In relation to who is the "decision maker" in the case of a power conferred on the Governor in Council, I am not persuaded of the contention advanced by the defendants that FAI v Winneke establishes that it is solely the Governor in Council (here represented by the first defendant, and there by the Attorney General). Although all members of the majority noted that the power was conferred on the Governor in Council, some judges in the majority spoke of the Minister as the "real" decision maker and there were shades of opinion as to the extent to which the Governor can act independently of his Ministers. Mason J expressed perhaps the strongest view, in the passages relied upon by the defendants, that the Governor is not bound to accept without question the advice offered by his Ministers.[8] In a later portion of his judgment he said that the inquiry required by the obligation to afford natural justice was to be conducted by the Minister, or by a committee of the Executive Council, rather than the Governor in Council but expressed this as a "delegation", consistently with his apparent view that the decision maker was the Governor in Council.[9]

30 On the other hand, Gibbs CJ described the power as being "technically" confided in the Governor in Council and the person "who in fact makes the decision" as being the Minister or Departmental Head.[10] Stephen J considered that it was the responsible Minister or appropriate officers of his Department to whom representations should be made, on the basis that it was the Minister who was the "real decision maker".[11] Aickin J said it was the Minister who was the "deciding mind"[12]. Wilson J described the Governor in Council as "no more than a formal stage in the process whereby decisions of Ministers and the government are transformed into effective decisions" and that "any attempt by a Governor of an Australian State to exercise...an independent judgment (being refusal to accept advice) would provoke a constitutional crisis."[13] On the other hand, he also said the duty to afford natural justice may be "delegated to the appropriate Minister", the same language used by Mason J, which is consistent with the Governor in Council being the decision maker.[14] Brennan J noted that the Governor in Council is "accustomed (but, semble, not required) to act upon the advice of his Ministers" but that it is for the relevant Minister to afford the necessary hearing.[15]

31 In summary, I consider FAI v Winneke supports the view of the defendants that the second defendant, as the relevant Minister, is not a necessary party. I do not consider, however, that it shows that he is not a proper party. No member of the majority expressly said the Minister (as opposed to the Governor) should not have been joined and all members of the majority considered the obligation to afford natural justice was to be discharged by the relevant Minister or his department. Further, there are indications in the judgments of Gibbs CJ, Stephen, Aikin and Wilson JJ that they regarded the Minister as the real decision maker.

32 I also accept the proposition advanced by the plaintiff that as a person with an interest in maintaining the impugned decision, the Minister who made the recommendation to the Governor in Council is a proper party. In FAI v Winneke this arose because the proceedings were instituted under the ALA. That statutory regime does not apply to this case, but the plaintiff relies on the decision of Young J in Rosenthal v The Sir Moses Montefiore Jewish Home and ors[16] ("Rosenthal") to the same effect in relation to a suit for declarations.

Rosenthal v The Sir Moses Montefiore Jewish Home

33 Rosenthal concerned the capacity of an elderly plaintiff to revoke an earlier power of attorney and make a new one. The first defendant was the home in which the plaintiff currently resided, the second a social worker employed by that home and the third the earlier attorney. The third defendant pleaded no contest and acknowledged that the power of attorney in her favour had been properly terminated. The first and second defendants sought to be removed. The trial judge, Young J, refused that application and made the declarations sought that the new power of attorney and the revocation of the old were both valid.

34 Young J noted that as an ordinary rule a court will not make a declaration of right unless there is a proper contradictor. The defendants distinguish Rosenthal on the basis that had the first and second defendants there been removed, there would have been no contradictor, whereas in this case the State of Victoria will remain as contradictor even if the second defendant is removed. In my view this analysis supports the view that the second defendant is not a necessary party.

35 The plaintiff's real reliance on Rosenthal, as I apprehend it, however, is in the analysis by Young J as to when a defendant is a proper contradictor. As set out earlier, the defendants must show that the second defendant is neither a necessary, nor a proper, party. Young J held that a defendant who has "asserted a serious adverse claim to the plaintiff"[17] or who "solemnly asserts a contrary position to the plaintiff"[18] is a proper contradictor. In that case, the second and third defendants had made an application to the Guardianship Board for the appointment of a guardian and/or financial manager for the plaintiff on the basis that she lacked competence and, after she objected through solicitors, refused to withdraw the proceedings, saying they would resist any litigation seeking to require them to do so vigorously. The trial judge held that the first and second defendants were proper contradictors having regard to these matters, as they continued to press that the plaintiff was incapable of granting a power of attorney.[19]

36 In this case, the second defendant has joined in a defence that actively resists the plaintiff's claim for a declaration that the decision to remove him was invalid. He has not, as did the third defendant in Rosenthal, pleaded no contest. He has actively participated in the proceedings, at least to the extent of the mediation, and, it may be, in providing information to assist in the very voluminous discovery given by the defendants. On the authority of Rosenthal, he is a proper contradictor to the declaration, although not a necessary one.

37 The plaintiff also relies on Jarratt v Commissioner of Police and anor[20] ("Jarratt") as authority for the proposition that the person who makes the recommendation to the Governor in Council, there the Commissioner, and here the second defendant as Minister, is a proper defendant. In that case, the plaintiff took proceedings against the State of New South Wales and the Commissioner for Police for declarations that his removal from office as a Deputy Commissioner of Police was invalid for failure to afford procedural fairness. The State was added as a party during the hearing. The Police Service Act 1990 (NSW) conferred power on the Governor to remove a Deputy Commissioner on the recommendation of the Commissioner, which could not be submitted without the approval of the Minister. The High Court held that this power of removal was conditioned on the observance of procedural fairness, which had not been afforded.

38 I do not consider that Jarratt adds significantly to the plaintiff's case. While there is brief mention made in some judgments of the identity of the defendants[21], it does not appear that there was any objection taken in that case that the Commissioner was not a proper defendant. Further, I accept the submission of the defendants that Jarratt is distinguishable on its facts. The Commissioner was the statutory employer in that case (i.e. in the same position as the first defendant here) and, further, the Act there in question expressly referred to the role of the Commissioner in making the recommendation.

39 The defendants assert that there will be no prejudice to the plaintiff if the second defendant is removed, but prejudice to the defendants if he remains. The plaintiff contests both propositions. I consider these matters as being relevant to whether the second defendant is a proper defendant.

40 The defendants rely on the comments of Pagone J in Candibon Pty Ltd v The Honourable Justin Madden (in his capacity as Minister for Planning) and the State of Victoria[22] in refusing an application by the plaintiff to join the current Minister as a defendant to add a claim in deceit. His Honour refused to allow the amendment to the statement of claim to add the claim in deceit but added that, if he had been minded to allow the amendment, he would still have refused the joinder of the current Minister. He said this was because the State was vicariously liable if the claim was made out and joinder of the Minister would impose on him the burden of personal litigation.

41 I accept the submission of the plaintiff that care needs to be taken in application of that case to this. Here the application is not for late joinder, but for removal, by a defendant who has participated in the proceedings for a not inconsiderable period, and does not claim any change of circumstance that makes his involvement no longer appropriate. I accept that the continuing involvement of Mr Batchelor as a defendant, as opposed to a possible witness, will require some additional costs to be incurred by the first defendant but there is no evidence as to the quantum of those costs. The defendants say the amount is not relevant. I do not consider that correct, if what is said is that the prejudice to the defendants if the second defendant is not removed outweighs any prejudice to the plaintiff if he is. Further, there is no evidence from Mr Batchelor himself of any particular personal burden. As a matter of principle as the plaintiff submits, the personal burden of litigation, if there is a cause of action against a defendant, is not usually a reason by which that defendant can avoid suit and nor are the costs he will incur.

42 I accept the defendants' submission that the plaintiff will not suffer any monetary prejudice from the removal of the second defendant, but also accept the submission of the plaintiff that this is not the only potential prejudice to be considered. The plaintiff says, and I accept, that in addition to the monetary relief he seeks, he wishes to vindicate his reputation, which he considers damaged by the decision to remove him. It is for that reason that he has joined not just the ultimate decision maker, the State representing the Governor in Council, but also the individual who as Minister made the effective decision, or recommendation, on the basis of which the Governor in Council acted. The plaintiff relies on the High Court decision in Annetts and anor v McCann and others[23] in support of his proposition that the interests to be protected by a right to be heard can include the protection of reputation.[24]

43 The plaintiff has also asserted that there would be prejudice to him in the removal of the second defendant because he would lose the opportunity to interrogate him. The first defendant says it may be possible to obtain his evidence by other means, if he is called as a witness either voluntarily or on subpoena. These issues are speculative and accordingly I express no further opinion in respect of them. Interrogatories have not been ordered nor sought within the time frame ordered, and the first defendant says it has not yet made a decision as to whether or not it would call Mr Batchelor as a witness, if he is removed as a party.

44 The second defendant is not, in my view, a necessary defendant having regard to the authorities to which the parties have taken me nor under r.9.03. He is liable to the declaration sought, but severally rather than jointly with the State and so pursuant to r.9.03(2) is not an essential defendant. Nor is his presence necessary "to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon" within r.9.06(b)(i). A contradictor will remain, in the form of the State as first defendant, if he is removed. Counsel for the plaintiff has submitted that if Mr Batchelor is removed he is not bound by the declaration and so is at liberty to still defend the decision. Such a response may be unlikely as a matter of fact, and I consider the plaintiff's analysis in any event incorrect as a matter of principle. If the declaration is made, it is good against the world. The defendants say this shows there is no utility in the second defendant's presence. I disagree. In my view it shows he is not a necessary party, not that he is not a proper one.

45 Having regard to the authorities discussed above, and the Rules, I do not consider that the defendants have established that the second defendant is not a proper party. In his capacity as Minister, he was the effective decision maker and accordingly the plaintiff has a right to seek to vindicate his reputation as against him; he has participated in the litigation to date and no factual change of circumstance is asserted; and in that participation he has actively denied the plaintiff's case. By reason of this denial he could be a proper sole defendant to proceedings for a bare declaration that his recommendation to remove the plaintiff as a Mining Warden was invalidly made. If a proper defendant to those proceedings, he does not cease to be one because the State is also joined and other relief also sought.

46 For these reasons I consider it "just" within r.9.06 (b)(ii) that he remain a defendant. I am not satisfied that the prejudice asserted by the defendants is made out to any significant degree, so as to render it unjust or not "convenient" within that rule for him to remain a defendant. Accordingly, in my view the second defendant remains a proper defendant within r. 9.06(b) (ii).

47 Comparison with Beamer, as an instance of removal of a defendant, is instructive. There is one similarity on the facts of these proceedings to Beamer, in that in both cases the defendants, who here seek removal and there opposed it, assert a position inconsistent with their prior conduct. Here the second defendant, who now seeks to be removed from the proceedings, has substantially participated in them from the filing of his defence on 12 August 2011. I note in fairness to the defendants that exhibited to the first affidavit of Brendan John Murray is correspondence dating back to 30 January 2012 in which the question as to whether Mr Batchelor should be removed as a party is canvassed. The first letter, letter dated 30 January 2012 from Minter Ellison to the solicitors for the plaintiff, notes that this issue was raised informally with counsel at a directions hearing in September 2011. Accepting for the purposes of this application that the issue was first raised in September 2011, Mr Batchelor nevertheless remained a party for the mediation in December 2011. The defendants say it was considered useful to explore prospects of settlement before the application. If it was proper or necessary for Mr Batchelor to be a party at the time of mediation, it is difficult to see on what basis that has changed.

48 In other respects, Beamer is distinguishable on its facts from these proceedings. First, the plaintiff here opposes the removal, in Beamer it supported removal. Counsel for the plaintiff submits that a plaintiff is entitled to choose who to sue. In my view the discussion of authority in Beamer[25]shows it puts it too high to say the plaintiff's view on joinder, and so on removal, is determinative, but it is certainly a relevant factor in the determination as to whether it is "just" that a defendant be added within r.9.06(b)(ii), and so whether that defendant is a proper party when removal is being sought. Next, the necessity to recall witnesses that was a powerful factor tending towards removal in Beamer does not here apply. The effect of both the similarity and the differences on the facts of this case compared to Beamer, is, however, that the case for removal in these proceedings is weaker than in Beamer.

49 The defendants have established that the second defendant is not a necessary party, but not that he is not a proper one. Accordingly, I refuse the defendants' application. I will hear the parties as to costs and further directions if not agreed.

[1] [2004] VSC 390, at [21]-[25].

[3] Ibid, at [30]-[34] (as to the significance of the plaintiff's wishes); at[ 35]-[37] (as to the significance of the defendants' earlier conduct) and [38]-[42] (as to the stage of the trial).

[5] Wilson J at 404-405, adopted by Stephen J at 306.

[6] Gibbs CJ at 351; Mason J at 372 and Brennan J at 419.

[16] BC 9505223, unreported decision in 2632 of 1995 delivered 26 July 1995.

[21] Counsel for the plaintiff refers to these in [19] of the Outline of Submissions.

[24] Ibid, per Mason CJ, Deane and McHugh JJ at 599.

[25] Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd [1999] VR 2 VR 507, per Chernov JA, cited at [33] of Beamer.

Fair Trading Act 1999(Vic)

Police Service Act 1990(NSW)

Court(General Civil Procedure) Rules 2005

Court (General Civil Procedure) Rules 2005

Resources (Sustainable Development) Act 1990

Administration Act 2004

Superannuation Act 1988

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