Richardson v Trautwein [1942] HCA 5

Richardson v Trautwein [1942] HCA 5 - HCA 1942 case summary — Zoe

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inglish Rules was thus expounded by Serutton L.J. : - '" Order XVI. deals with joinder of parties ; Order XVIII. deals with joinder of causes of action, and it was therefore held in Smurthwaite v. Hannay (1) that several plaintiffs having separate and distinct causes of action could not join together in one action against the defendants " (Payne v. British Time Recorder Co. (2) ). Ina later case the learned Lord Justice also said : - '' Within the last twenty years a complete change has taken place in the attitude of the courts towards the joinder of parties and causes of action on the same writ. After a number of cases all pointing to the necessity for an amendment, Order XVI., rule 1, was amended and now stands in this form : ' 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, where if such persons brought separate actions any common question of law or fact would arise . . . That relates to the joinder of plaintiffs. The rule relating to defendants is Order XVI., rule 4 : - ' All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.' This rule, it will be noticed, omits the words 'arising out of the same transaction or series of transactions,' and the words 'where . . . any common question of law or fact would arise.' The first step taken by the Court was to hold that rule 4 covered the same ground as rule 1. The next was to decide that, notwithstanding certain decisions limiting the power of joining matters and parties on one writ, those rules were to be construed liberally, with the result that many matters, formerly the subject matter of separate actions, could now be tried in one action. . . . 'The result of the later decisions is that you must look at the language of the rules and construe them liberally, and

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Rule 4, it should be noted, says "the right" not "a right" or "any right": its construction, however, must conform to the provisions of rule 1 and extend to " the right to any relief " alleged to exist in respect of or arising out of the same transaction or series of transactions provided that some common questions of law or fact are involved. It is said that rule 4 contains no restriction or quali- fication such as is found in rule 1, and consequently that a plaintiff may join disconnected causes of action against any number of defendants subject only to this, that it is in the discretion of the court to say whether a joinder shall be permitted or not: See Payne v. British Time Recorder Co. (2); Green v. Berliner (3). But tule 4 must be construed with reference to the provisions of rule 1 and the general scope of the order. As du Parcq J. said in Berliner's Case (4): " It is plain that when a plaintiff is claiming relief arising out ofthe same set of circumstances against several persons he may join any number of them as defendants in the action, either jointly, or severally, or in the alternative, the word ' severally ' meaning that his claims against them are separate claims.'' And in Payne's Case (5) the generality of the expressions there found is in relation to an argument that the operation of rule 4 must be so limited that separate and distinct causes of action against defendants could only be joined if there were some contractual or other link between the defendants or in substance one injury suffered by the plaintiff from one or other of them: See Payne's Case (6). But no case, unless it be the Victorian case, Gilfoyle v. Bean and Mackerras ; Rothacker v. Bean and Mackerras (7), has ever yet been decided in which separate and disconnected causes of action have been joined against defendants which do not arise in respect of or out of some transaction or series of transactions in which some common question of law or fact arises. The Victorian case adopts the generality of the expressions in Payne's Case (5), which I have already mentioned, but it is rather curious to adopt a construction of the Victorian rule which should not be acted upon as a matter of discretion. In my opinion the construction of the English Rules so clearly stated by Scrutton L.J. is the construction of Order II.,

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whom a separate and distinct cause of action is allezed to exist irrespective of the question whether there is any connection between the causes of action? In Payne v. British Time Recorder Co. (1) the point was taken that the plaintiff had no right under Order XVI., tule 4, to join the two defendants. After citing the rule, Lord Sterndale M.R. said : - '' The argument was this. It was said you must apply this test, that in order to join two distinct causes of action there must be some link between the two defendants or the damage to the plaintiff must be common to both of them. The first observation to be made on that is that that proposition is not to be found in the rule. But it is said that it is to be found in the decisions of this Court. I do not think that is so. The decisions of the Court are certainly not consistent. Some part of the incon- sistency is to be found in this that, after the alteration of the rule to its present form in consequence of the decision in Smurthwaite v. Hannay (2), the courts have not always taken notice of the altera- tion. I think what Fletcher Moulton L.J. said with regard to those decisions in Compania Sansinena de Carnes Congeladas v. Houlder Brothers & Co. Ltd. (3) is correct. 'A number of decisions of the Court of Appeal have also been cited to us. I confess that I find it difficult to reconcile all those decisions, and so I am driven back upon the plain meaning of the words of rule 4, which, as I have said, appear to me clearly to contemplate such a case as the present.' I agree that the cases made by the plaintiff against the two defendants are not the same. They are sued on different contracts, in the one case for the price of goods sold and in the other for damages, and the amounts claimed differ in each case. But the words of limitation sought to be read into the rule are not to be found there. I think, as I said in Thomas v. Moore (4), that ' joinder of parties and joinder of causes of action are discretionary in this sense, that, if they are joined, there is no absolute right to have them struck out, but it is discretionary in the court to do so if it thinks right.' I said that because I thought that was the conclusion established by Compania Sansinena de Carnes Congeladas v. Houlder Brothers & Co. Ltd. (5), and the subsequent case of Oesterreichische Export A.G. v. British Indemnity Insurance Co. Ltd. (6). It was argued that those two cases did not support my proposition. I think what was said in those cases by Fletcher Moulton L.J. and Buckley L.J. does support the proposition I stated in Thomas v. Moore (4). And in another case of In re Beck; Attia v. Seed (7) Swinfen Eady L.J. stated the

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proposition in much the same way. I think therefore that the first point fails and that there is power to join these defendants, but that that is subject to the right of the Court to order either one of them to be struck out. I do not think there is any decision which governs the exercise by the Court of its discretion in this case" (1). Warrington I..J., whose judgment follows, said that he was of the same opinion (2). Scrutton L.J. said : - '' There are later decisions which lay down that rule 4 may be applied to causes of action as well as to parties; and that where there are common questions of law or fact defendants sued in respect of different causes of action may be joined. Yhomas v. Moore (3) is one of the latest of such decisions, and since that case was decided there has been the decision in In re Beck (4). The result of the later decisions is that you must look at the language of the rules and construe them liberally, and that where there are common questions of law or fact involved in different causes of actions you should include all parties in one action, subject to the discretion of the court, if such inclusion is embarrassing, to strike out one or more of the parties. It is impos- sible to lay down any rule as to how the discretion of the court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action. should be tried"' (5). In Green v. Berliner (6) du Parcq J., in dispos- ing of an objection which was taken to the joinder of two defendants, made the following observation : - '' Mr. O'Connor said that the plaintiff was not entitled to join in one action these four defendants against whom he was asked for different relief in the sense that, although he claimed a penalty from each of them, the facts upon which he relied in each case were necessarily different from those relied upon in the other cases. In the Rules of the Supreme Court the order dealing with the joinder of parties is Order XVI. In comparatively recent times a change was made in the rules of that Order, and the tendency of the courts has been to give a very liberal interpretation to them as they exist at present. Having regard to tule 4, which deals with the joinder of defendants, and to such cases as Thomas v. Moore (3) and Payne v. British Time Recorder Co. (7), I think it is plain that when a plaintiff is claiming relief arising out

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In my opinion rule 4 must be construed in the context of an Order which is dealing, not with the simple case of an action between the same plaintiffs and defendants but generally with the more complex cases where it is convenient to allow combinations of actions between different plaintiffs and defendants to be tried together. It enlarges the common-law rights to join plaintiffs and defendants in the one action and defines the common element that must exist between the separate causes of action included in it. Rule 1 defines the extent to which the plaintiffs can be joined in such actions. Rule 4 only relates expressly to joinder of parties. It authorizes the joinder of defendants against whom the right to any relief is alleged to exist jointly, severally, or in the alternative. The causes of action upon which this right to relief could be founded have already been specified. The rule is therefore silent as to causes of action, because rule 1 has already dealt with those which can be combined in the one action. Rule 4 marks the arrival of the stage at which it becomes necessary to define the defendants who can be joined in such action. Standing alone it is capable of being construed narrowly as being restricted to actions in which the whole of the relief can be alleged to exist against each of the defendants jointly with, severally as against, or in the alternative to, the other defendants. This would require each defendant to be interested in the whole of each cause of action, so rule 5 was added to provide that defendants can be joined who are only interested in part of the relief claimed or in some of the causes of action. Thus rule 5 is complementary to rule

They each operate to define the scope of rule 4, and, between them, enable a liberal construction to be placed upon it sufficiently wide to authorize the joinder of actions that can be conveniently tried together, with safeguards to prevent defendants being prejudiced by any confusion as to the claims against them respectively, by authorizing the Court to order the delivery of separate pleadings and if necessary to hold separate trials, or penalized by having to incur costs in respect of unnecessary attendances in court. The

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Judgment (77 paragraphs)

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