17 Rule 10.03 of the Supreme Court (General Civil Procedure) Rules 2005 allows a defendant to join a non-party as a defendant by counterclaim where the non-party could properly be sued in a separate proceeding.
18 Rule 9.02 allows two or more persons to be joined as defendants. This can be done as of right if some common question of fact or law would arise in the proceeding and the rights claimed arise out of the same transactions (par 9.02(a)). Alternatively it can be done with the leave of the Court (par 9.02(b)).
19 In the present case there are some common questions of fact and law in the existing and the proposed joined proceeding, but the rights claimed by Mr Artusa do not arise out of the same transactions. Therefore he requires leave before Kempsons can be joined.
Principles governing exercise of discretion
20 The joinder discretion is conferred by r 9.02(b) in wide and ample terms,[2] not to be cut down by restrictive interpretation,[3] and is to be exercised, like the general power of amendment,[4] by reference to considerations of procedural convenience, fairness and practicability, on a case by case basis.
21 The joinder rules originated in the procedural reforms brought about by the English Judicature Acts of the nineteenth century. Like the amendment rules,[5] the public policy of avoiding multiplicity of proceedings and promoting finality of litigation lies at their heart. Section 29(2) of the Supreme Court Act 1986 gives effect to the same policy.[6] It requires the Court to "exercise its jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings ... is avoided." The joinder rules have correctly been described as "a procedural mechanism for giving effect to [that] policy".[7] In the earliest days of the English reforms these rules were described as effectuating "one of the great objects of the Judicature Acts, namely, that, where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without the delay and expense of several actions and trials."[8] More recently, in Australia, the joinder rules have been described as reflecting "an intention, which now receives more emphasis than in the past, to avoid where reasonably practicable a multiplicity of proceedings."[9] Therefore, when considering whether to allow joinder, one significant consideration is that multiplicity and fragmentation in litigation, which often leads to increased cost and inconvenience, and may lead to inconsistent findings or decisions of fact or law, should, if possible, be avoided.
22 From the terms and structure of the rule as a whole, we can see the discretion in paragraph (b) gives the court power to allow joinder, in appropriate cases, even where no issues of common fact or law arose and where the rights claimed did not arise out of the same transaction. Of course the discretionary barriers to such a course may be insuperable, but this has been left to the judge to determine. So too, on a case by case basis, has been the sufficiency of the connection required between the existing proceeding and the proceeding to be joined, and all the other relevant considerations. Where, however, a common issue of law or fact does arise, so that at least one of the criteria specified in the rule is satisfied, the discretion to allow joinder would more likely be exercised, depending on the other circumstances.[10]
23 On the other hand, the rule makes it equally clear the existence of a common question of fact or law does not require the discretion to be exercised in favour of joinder. The common material may be so minor as to be overborne by what is discrete. The adverse procedural consequences may make it inexpedient to join the claims.[11] For example, it may be unfair to compel a minor party with only a marginal involvement to participate in a large and costly proceeding.[12]
24 The court should take the course most conducive to the just resolution of the dispute between the parties, having regard to the desirability of reducing, as far as practicable, costs and delay in litigation.[13] If joinder will increase costs and delay without a sufficient corresponding benefit, this may be a compelling negative consideration.
25 Regard should be had to practical matters and the unfairness or prejudice that joinder may cause to any party,[14] as well as the powers of the court to manage the case so as to address or minimise such consequences,[15] which will include the specific powers in rule 9.04.[16] In some cases "there may be competing considerations of relative inconvenience and relative fairness or unfairness which need to be resolved."[17] The advantages of joinder should be identified and weighed against any disadvantages,[18] having regard not only to the impact on the parties but also to the need to efficiently use the resources of the court.[19]
26 Delay in making an application for joinder is a relevant but not a decisive consideration. Rules of procedure are not ends in themselves. As the amendment cases show, the purpose of such rules is to promote the just and efficient determination of disputes, not the punishment of parties for inadvertence.[20] In cases of delay, there should be a consideration of the explanation and the prejudice, or lack of it, that a party has or will suffer in consequence. For example, if the delay has resulted in a party being no longer able to call a necessary witness in the proceeding to be joined, this may be a reason to refuse joinder.
27 The plaintiffs in the present case went to great lengths to show how weak was Mr Artusa's case against Kempsons. They submitted this was a strong reason to refuse leave. Mr Artusa submitted this was question for trial and not for me on the application for joinder.
28 What is the relevance, if any, of the merits of, or prospects of success of, the claims to be joined?[21] We have seen the amendment rules and the joinder rules have a common purpose - the complete and final determination of controversies and the avoidance of multiplicity of proceedings. I can therefore safely examine the approach adopted in amendment cases. There the question is whether issues may be raised, not whether the claims have merit. If the proposed claims were obviously bad in law or futile, the amendment would not be allowed on this ground alone. But the court would not refuse to allow an amendment because it raised a claim that ought not to succeed, for this will be an issue at trial.[22] In New South Wales these are the principles that apply both in amendment[23] and in joinder cases.[24] This is the approach I will follow here. Therefore, beyond determining whether the claim to be joined is obviously futile or bad in law, I will not consider its merits or prospects of success.
29 I will apply these principles in the consideration of application before me that follows.