LIMITATION OF ACTIONS; JOINDER OF CLAIMS & … Notes/Civil Law/old/Lecture... · Web viewlimitation of actions; joinder of claims & parties A. Limitation of Actions Act 1974 For most

Limitation of Actions; Joinder of Claims & Parties Lecture Hours 5 - 6

LIMITATION OF ACTIONS; JOINDER OF CLAIMS & PARTIESLIMITATION OF ACTIONS; JOINDER OF CLAIMS & PARTIES

A. Limitation of Actions Act 1974

For most types of legal action there are time periods known as limitation periods within which cases must be commenced.

Failure to commence proceedings within the limitation period will bar the action, subject to possible suspension or extension of the period, or the other side failing to take issue.

The existence of the statues of limitation is based on the policy that stale claims should not be bought. The policy is justified in 2 major respects:

(i) injustice - it would be an injustice to defendants to have proceedings hanging over their heads for too long, and where witness' memories have faded, etc

(ii) efficiency - litigants should be encouraged to bring their actions within a reasonable period

The Acts are not ordinarily applicable to courts exercising federal jurisdiction (eg. Federal Court of HC) or where a state court exercise federal jurisdiction. However, s.79 Judiciary Act (Cth) provides that laws of each state are binding on all courts exercising federal jurisdiction, except as otherwise provided by the Commonwealth, which may pick up a state limitation provision if a HC action is commenced and heard in a state (Pederson v Young).

The HC will not remit a case to a jurisdiction in which the case would be statute-barred (Fielding v Doran)

(i) The Purpose of limitation periods

The purpose of the limitation statutes is to protect defendants, and the Courts have expressed 3 reasons for supporting their existence:

(a) that plaintiffs with good causes of action pursue them with reasonable diligence(b) that a defendant might have lost evidence to disprove a stale claim; and(c) that long dormant claims have more cruelty than justice in them

There are various views as to the application of limitation periods - Morgan refers to the 'defendant's windfall' which occurs when the court upholds the statutory time bar, whereas McHugh in Brisbane Southern Regional Health Authority v Taylor urges that the policy of the law is to fix definite time limits which should generally be adhered to in order to preserve the quality of justice.

Statutes of limitation are intended to bring certainty to legal proceedings by preventing old and stale claims from being resurrected.

(ii) The running of time

Generally, the limitation period commences to run upon accrual of the cause of action and is stopped by the commencement of proceedings. If proceedings are not commenced within the limitation period, time expires and the cause of action is unenforceable.

However, a plaintiff may seek an extension of time to bring the action, and certain occurrences have the effect of suspending the operation of the statutes.

Commencement occurs when the originating process is issued by the plaintiff (ie. when it is sealed in the court registry)

Stipulated Periods

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Cause of Action Limitation Period

Section Limitation of Actions Act 1974-91 (Qld)

Contract* 6 10(1)(a)Tort (general)* 6 10(1)(a)Tort (personal injuries)* 3 11Deceased estates 12 28Breach of trust or recovery of trust property

6 27(2)

Deed or speciality 12 10(3)Recovery of land 12 13Action on a Judgement* 12 10(4)Series of conversions/wrongful detention of a chattel

6 12

* Relevant to the course

Accrual of Cause of Action

The general rule is that the limitation period commences to run when the plaintiff's cause of action accrues or is complete.

A cause of action accrues when the necessary facts have occurred, and there is in existence, a competent plaintiff who can sue and a competent defendant who can be sued (Thomson v Lord Clanmorris). The requirements of the cause of action vary according t the type of case and are determined by the general law. Time runs from this point in time to the time that the originating process is filed.

However, the limitation period must be still be remembered in the following interlocutory procedures: applications for leave to amend the originating process applications to renew the originating process applications to dismiss for want of prosecution

For example, in contract the cause of action is said to arise from the time of breach, whereas in tort the cause of action arises from the time that damage is sustained (Price, Higgins & Fidge v Drysdale)

Postponement

Limitation periods may be suspended or postponed in particular circumstances, such as fraud or mistake, or where there has been an acknowledgment or part payment by the defendant, or where the plaintiff is under a disability.

Disability

A plaintiff is under a disability if he/she is under 18 years of age or of unsound mind: s.5(2)

"Unsound mind" must be construed in context, so that where a plaintiff is incapable of managing his/her affairs then he/she is under a disability

Kirby v Leather (High Court of England, Queens Bench, 1965)

Facts: 15 May 1959: the pl. was involved in a motor vehicle accidence, when his scooter collided with

a van he suffered serious injuries including brain damages, and was unconscious for several weeks

after the accident he had no recollection of the accident 2 October 1963: a writ was issued claiming damages against the driver of the van

Held: Denning MR The limitation period under the respective legislation was 3 years from the date the cause of

action accrued

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in calculating the 3 years, you exclude the day of the accident itself (15 May 1959) which is the date the action accrued. The 3 years started on midnight on May 15-16 1959, and ran up to midnight on May 15-16 1962

There is an extension of time, when a person is under a disability - if on the date when any right of action accrued, the person was under a disability, the action may be brought at any time before the expiration of 3 years from the date when the person ceased to be under a disability

A person is deemed to be under a disability "while he is an infant or of unsound mind" The question is then, was David Kirby, at and after 15 May 1959, of unsound mind? The words "unsound mind" are not defined in the statute, but mean a person, who by reasons

of mental disorder, is incapable of managing and administering his property and affairs (in this case, in relation to the accident)

Dr Cook introduced evidence that from 1960 onwards, Kirby was badly affected mentally Subsequently, the court found that the action is not statute-barred

Macrossan in King v Coupland considered Denning's judgement, and found that the matters referred were aspects of a broader concept of mental illness causing an incapacity to manage affairs in a manner that a reasonable man would achieve.

The effect of the plaintiff's disability is to prevent the running of the limitation period: s.29. The plaintiff need not wait until the disability ceases before suing.

(iii) The effect of expiration of the limitation period

Where the limitation period has expired, the general rule is that the right remains in existence, but can no longer be enforced (ie. the remedy is barred, but not the right).

However, in certain instances, the running of the limitation period extinguishes the right, eg. the running of the limitation period for an action to recover land extinguishes the title of the landowner (s.24)

Georgiadis v Australian and Overseas Telecommunications Corp

Facts: a Cth employee had accrued a cause of action for damages for economic loss prior to 1

December 1988, but had not commenced proceedings prior to the commencement of s.44 Comcare Act (which purported to retrospectively abolish pre-existing injuries claims)

Mr G challenged the constitutional validity of s.44 on the basis that it effected an acquisition of property (his right to bring an action for damages) other than on just terms as required by s.51(xxxi) Cth Constitution

Held: Majority (Mason, Brennan, Deane, Gaudron) Upheld the plaintiff's argument a plaintiff's claim in negligence causing personal injuries is a chose in action, and the effect of

s.44 was to confer a distinct financial benefit on the Cth however, the majority expressly avoided the issue as to whether a cause of action which is

statute-barred can constitute 'property' for the purposes of s.51(xxxi) the minority (Dawson, Toohey & McHugh) found that s.44 was not invalid, as the

extinguishment of rights is not an acquisition

Commonwealth v Mewett

Facts: the case involved 3 plaintiffs, who fell under various statutes rendering their causes of action,

out of time the Cth argued that there was no vested valuable property right in the cause of action, and

therefore no property to be protected under s.51(xxxi) Spencer J (Full Federal Court) found that the claims of 2 (Rock and Brandon) of the plaintiffs (in

contract and tort) were barred with the respective provision being procedural in nature (s.14 Limitation Act 1969 NSW). The other plaintiff's claim was extinguished, and the relevant provision was held to be substantive in nature (s.63 of the same Act), however it is necessary for the defendant to plead the extinguishment of the right, for the right to be extinguished.

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Section 44 Comcare Act purported to retrospectively abolish causes of action for personal injuries

An appeal to the HC was dismissed, but the Justices adopted different approaches to the issue of whether a cause of action can constitute property for the purposes of s.51(xxxi)

Held: HC on Appeal

Dawson J: The cause of action is not extinguished under s.63, because there is no expiration of a limitation

period fixed under the NSW Act - such a limitation period remains to be determined by way of an application for extension of time.

The cause of action remains sufficiently proprietary in nature to be counted among the "innominate and anomalous interest" (Bank of NSW v Cth) to which s.51(xxxi) has been held to extend its protection.

Where an extension of time is refused, s.63 will be engaged, but until time or circumstances otherwise preclude an application for extension of time, s.63 does not take effect

Rock and Brandon's causes of action are not extinguished under s.63, as their applications for extension of time have yet to be determined

Section 44 Comcare Act, in seeking to extinguish them, fails to provide just terms and is invalid

Gummow and Kirby JJ: A cause of action, upon which there has operated a bar of the kind imposed by the statute of

limitations, still has sufficient substance to answer the constitutional description of "property" in s.51(xxxi)

This follows from 2 considerations:1. a statutory bar does not go the jurisdiction of the court to entertain the claim, but to

the remedy and defences available. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for consideration by the court (Cth v Verwayen).

2. In circumstances the defendant may be estopped from pleading the statutory bar or otherwise be deemed to have waived the right to do so (Cth v Verwayen)

The constitution guarantee under s.51(xxxi) operates in respect of a species of valuable right and interest

Despite the existence of the statutory bar, the subsistence of the cause of action, particularly one for a liquidated sum, means that it still may be turned by the plaintiff, into a valuable account (eg. possessory lien may still be exercised, etc)

It is this subsistence which suffices to engage the constitutional guarantee

Brennan CJ & McHugh J: did not express a view on this issue

(iv) Extension of the Limitation Period [general knowledge required only for this course]

Part III of the Limitation of Actions Act 1974 (Qld) allows the limitation period to be extended in certain cases. It is intended to assist persons who, for genuine reasons, have not taken action and whose case would otherwise be statute barred or will shortly be statute barred.

The courts have taken the view that the legislation is not designed to assist plaintiff's who have been careless, tardy or slothful, or whose legal advisers have shared these attributes.

(v) Forum Shopping

Refers to the situation in which the plaintiff seeks out the jurisdiction most favourable to his/her cause of action, and hence boosts their prospects for success.

The issue arises in relation to limitation periods because the legislation is state-based.

The court exercising jurisdiction generally applies the law in force in that jurisdiction. Therefore, an action can be maintained if it has been bought within time under the law of the forum, even if according to the

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limitation statute of the law governing the dispute it is statute barred. (ie. distinction between 'procedural' law = law of jurisdiction in which proceedings commenced v. substantive law = law of jurisdiction in which dispute arose)

Statute (eg. Choice of Law (Limitation Periods) Act 1996 Qld) now essentially removes the procedural/substantive distinction, and regards limitation periods as part of the substantive law to be applied accordingly (cf. McKain v R W Miller & Co)

(vi) "Out of Time" as a Defence

The allegation that an action is out of time must be raised as a legal defence in the pleadings and must be specifically pleaded: r150(1)(c)

There is no discretion in the Court to refuse to accept such a plea, however the court will not raise the defence itself. The party with the benefit of the defence must raise it.

(vii) Contracting Out

It is possible for parties to agree not to plead the limitation period.

Correspondence from a defendant that stated "liability is not an issue" has been held to amount to contract between the parties precluding the defendant from putting forward any defence which would impeach that liability including a defence that the claim is statute barred: Newton, Bellamy & Wolfe v SGIO

(viii) Example: Personal Injury Actions

'Personal injury' is defined as any disease and any impairment of a person's physical or mental condition: 5(1) Limitation of Actions Act

Accrual of the cause of action

The general rule is the limitation period begins to run upon accrual of the cause of action - ie. the time when the injury first occurred

Latent Injuries

In this instance, the plaintiff has no way of knowing of the injury, however the limitation period has begun to run, eg. employees who develop pneumoconiosis from inhaling particles of silica some 30 years earlier.

The court is given a discretion to extend the limitation period in cases where the plaintiff was unaware that the injury had been suffered

(ix) Law Reform

"The principle that the limitation period commences on the date when the cause of action accrues should be replaced."

Problems Identified

Difficulties determining when the cause of action accrues

Different causes of action accrue at different times

Unfairness

Proposed Changes

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A limitation period of general application for common law claims, being the lesser of:

(a) 3 years after the date on which the plaintiff first knew, or, in the circumstances ought to have known:> that the injury had occurred> that the injury was attributable to the conduct of the defendant> that the injury, assuming liability on the part of the defendant, warranted bringing proceedings

OR

(b) 10 years after the date on which the conduct, act or omission giving rise to the claim occurred

'Injury' is defined as: personal injury property damage economic loss non-performance of obligations

A judicial discretion to extend the limitation period, including considerations plaintiff's reasons prejudice to defendant nature of the plaintiff's injury could the defendant have been expected to be aware of claims? defendant's conduct leading to injury defendant's conduct following injury duration of plaintiff's disability did plaintiff act properly and reasonably? steps taken by plaintiff to obtain medical, legal or other expert advice

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B. Joinder of Claims and Parties

(i) Introduction

General principle: each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding: r62(1)

The legislation is designed to avoid multiplicity of proceedings and inconsistency of result.

The provisions should be liberally construed: Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd

(ii) Res Judicata and Issue Estoppel

Res judicata and issue estoppel apply where a court has given judgment in relation to matters the subject of litigation. A party is unable to reopen such matters.

These are relevant considerations in the context of joinder, as the failure to join a claim in a proceeding may preclude the pursuit of such a claim in a later proceeding. Furthermore, the failure to join a person as a party will normally mean that a decision made in the proceeding will not be binding upon that person.

Res Judicata

The classic formulation is from Henderson v Henderson:

"Where a given matter becomes the subject matter of litigation in and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The please of res judicata applies…to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

The main authority in the area is Port of Melbourne Authority v Anshun Pty Ltd (No 2):

Port of Melbourne Authority v Anshun Pty Ltd (No 2) [HC, 1981]

Facts: a worker was injured by a load of girders handled by a crane hire by Anshun Pty Ltd form the

Port of Melbourne Authority. In an earlier action brought by the injured worker against Anshun and the Authority, the

defendants sought contribution from each other, and subsequently Anshun was to recover 90% of the damages awarded to the plaintiff from the Authority, and the authority should recover 10% of the damages from Anshun.

The authority then brought proceedings against Anshun claiming an entitlement to an indemnity pursuant to the crane hire agreement.

Held: At first instance, it was held that the rule from Henderson v Henderson applied, and the

indemnity should have been pursued in the original proceedings. This decision was upheld by the Full Court of the Supreme Court. The HC also upheld the decision. However, Gibbs, Mason and Aicken, and Brennan noted that

a claim to an indemnity may be litigated as between a defendant and a third party (or between defendants) even though the right to indemnity arises only on payment of the liability to which it relates, that is, payment to the plaintiff who seeks damages. The fact that liability to the plaintiff has not be established or discharged is no bar to the third party claim.

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Issue Estoppel

Issue Estoppel occurs where there is an essential element common to 2 or more sets of proceedings involving the parties.

For example, a common issue of liability that arises in 2 actions involving a MV collision, where if each proceeding were tried separately, mutually inconsistent decisions might be reached, with the result that a party in one proceeding might be bound by the decision in the other. The proceedings might be consolidated: Todd v Jones

Issue estoppel will only apply where the previous determination was made by a court of competent jurisdiction, that is, a court able to hear and determine the earlier proceeding. Otherwise, the status of the court is immaterial: Kosanovic v Sarapuu.

Arnold v National Wesminster Bank Plc [H of L, 1991]

Facts: A judgment adverse to tenants of premises in a rent review case had been given by a HC

judge. The judgment was shown to erroneous by 2 Court of Appeal decision in later cases. The tenant brought proceedings seeking the re-opening of the findings made in the earlier HC

action.

Held: That there were special circumstances in this case (namely, the law had changed since the

original HC decision), and hence there was no issue estoppel

(iii) Several causes of action in a proceedings

Rule 60

(1) A plaintiff or application may, whether seeking relief in the same or different capacities, include in the same proceeding as many cause of action as the plaintiff has against a defendant or the applicant has against a respondent.

(2) However, causes of action may be included in the same proceeding only if at least 1 of the following conditions is satisfied -

(a) if a separate proceeding were brought for each cause of action - a common question of law or fact may arise in all the proceedings;(b) all rights to relief sought in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events;(c) the court gives leave, either before of after the start of the proceeding.

60(2)(a) "common question of law or fact"

In Bendir v Anson a common question of law or fact was not found to exist in an action brought by 2 owners of adjoining buildings against a new neighbour for interference with light. The fact that the position of each building may be quite different from the other in terms of access to light meant that no common fact was said to exist. [Situation would now be dealt with under (2)(c)]

60(2)(b) "the same transaction or event or series of transactions or events"

The word "series" has been interpreted to be limited by the word "same": Payne v Young [where a number of plaintiffs seeking recovery of inspection fees paid under an invalid excise regulation were found to have similar transactions, but not the same]

The word "event" appears to give a wider scope to the word "transaction": Bendir v Anson, Birtles v Commonwealth

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Birtles v Commonwealth [SC of Vic, 1960]

Facts: plaintiff brought proceedings for damages fore personal injury arising out of an industrial

accident. Each of the defendants maintained that the plaintiff's cause of action was statute-barred. One of the defendants, the State Electricity Commission, alleged that the plaintiff had failed to

serve notice upon it, as required by statute, within 6 months of the accident The plaintiff sought to add his original solicitors as defendants to the action alleging negligence

Held: "transaction" encompassed the accident and injury sustained by the plaintiff, as well as the

further matters of the relevance of the action against the defendants and application of the time limitation

In relation to adding the claim against the solicitors, Adam J said by litigating the claim against he solicitors in a separate action, the plaintiff might possibly "fall between two stools"

Nb. No need for all defendants to be interested in all relief sought

The rule should be read in conjunction with r66 which states that it is unnecessary for every defendant or respondent to be interested in the all the relief sought or in every cause of action in a proceeding.

60(2)(c) Court's Discretion

Ryan J in Hagan v Bank of Melbourne (applying principles from Wilcox J in Bishop v Bridgelands Securities):

Basic principle: the court should take whatever course seems to be the most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting the costs and delay of the litigation.

Leave ought not be granted unless the course is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.

Regard must be had to practical matters. For example, it would be generally inappropriate to grant leave for joinder of applicants:

represented by different solicitors who may rely on different evidence where the number of claims would impose an undue burden on the respondent

Bishop v Bridgelands Securities [FC, 1990]

Facts: the applicant sought declarations that the respondents had engaged in conduct in contravention

inter alia, of s.52 TPA and damages. The proceedings concerned representations made in letters set by the respondent to the

applicant (and some 114 other persons), who subsequently invested money on an unsecured basis with a company that failed.

Held: It was accepted that the investors' claims could not be said to arise out of the same transaction

or series of transactions. However, the court exercised its discretion to allow the joinder of all 114 claims, on the basis

that the applicants waive reliance on various oral representations which would have the effect of producing different fact findings for each of the applicants

The court stated that, although there would be necessary to adduce some evidence in respect of each of the applicants in relation to reliance on the representations and the amount invested, it would be less that 114 proceedings separately instigated.

The joinder was unlikely to result in unfairness to any party.

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(iv) Several Parties

Application of Chapter 3 (Parties & Proceedings), Part 1, Division 2 (Several Parties:

Rule 61 - Application of Div 2

This division applies to a proceeding subject to any order of the court made before or after the proceeding is started -(a) requiring a person -

(i) to be a party to the proceeding; or(ii) to attend a proceeding or part of a proceeding; or

(b) dispensing witht eh requirement for a person to be a party to the proceeding

General principle

Rule 62 - Necessary parties

(1) Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding

(2) The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding.

(3) A person who is required under this rule to be included as a plaintiff or applicant and does not consent to the included in this way may be included as a defendant or respondent.

(4) The court may dispense with a requirement under this rule for a person to be included as a party.

r62(3) Reluctant Parties

The rule incorporates the common law position providing that reluctant plaintiffs or applicants may be included as defendants or respondents: Re Matthews, Oates & Mooney

"Necessary to enable the to adjudicate effectually and completely"

Requires considering whether, in the absence of the party proposed to be joined, the matters in dispute in the existing proceeding could be effectually and completely adjudicated: Strudwick v Selby

Joinder of Plaintiffs

Rule 63 - Joint Entitlement

(1) If a plaintiff or applicant seeks relief to which another person is entitled jointly wit the plaintiff or applicant, all persons entitled to the relief must be parties to the proceeding.

(2) A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent.

r63(3) Reluctant Parties

The rule incorporates the common law position providing that reluctant plaintiffs or applicants may be included as defendants or respondents: Re Matthews, Oates & Mooney

Test

Rule 65 - Inclusion of multiple parties in a proceeding

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(1) In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if -

(a) separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or(b) all rights to relief sought in the proceedings (whether joint, several or alternative) arise out of the same transaction or event or series of transactions or events.

(2) Also, in a proceeding, 2 or more persons may be defendants or respondents if -(a) there is doubt as to -

(i) the person from whom the plaintiff or applicant is entitled to relief; or(ii) the respective amounts for which each may be liable; or

(b) damage or loss has been caused to the plaintiff or applicant by more than 1 person whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant.

"the same transaction or event or series of transactions or events"

see above

"common question of law or fact"

see above

No need for all plaintiffs to be interested in all relief sought

Rule 66 (see above)

Damage or loss caused by more than 1 person

Broadly interpreted: Parkes v John Smith & Ors

Joinder of Defendants

Rule 65 test applies (see above)

Joint or Several Liability

Rule 64 - Joint or several liability

(1) If a plaintiff or applicant seeks relief against a defendant or respondent who is liable jointly with another person, and also liable severally, the other person need be made a defendant or respondent to the proceeding.

(2) If persons are liable jointly, but not severally, under a contract, and a plaintiff or applicant seeks relief in relation to the contract against some but not all of the persons, the court may stay the proceeding until the other persons liable under the contract are included as defendants or respondents.

Joint Contractors

Section 54 PLA provides that a promise made by 2 or more persons is construed as a promise made jointly and severally.

The effect is that the common law is avoided:

entry of judgement against one defendant who is jointly liable acts as a bar to proceedings against the other defendant: Kendall v Hamilton

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A joint promise by 2 or more persons creates a single obligation incumbent on both or all, whereas a joint and several promise creates both a joint obligation on all and a number of several obligations respectively incumbent on each of the parties: Re Broons

Nb . Where several parties are sued in alternative, this is completely different. In this case, entry of judgement against one defendant constitutes an election not to pursue the others: Johnson v Agnew

(v) Addition, Substitution and Removal of Parties/Actions

Parties incorrectly included or not included

Rule 67

Despite rules 62 and 63, the court may decide a proceeding even if a person is incorrectly included or not included as a party and may deal with the proceeding as it affects the rights of the parties before it.

Inconvenient inclusion of cause of action or party

Rule 68

(1) This rule applies to a proceeding, despite division 2, if including a cause of action or party may delay the trial of the proceeding, prejudice another party or is otherwise inconvenient.

(2) The court may, at any time - (a) order separate trials; or(b) award costs to a party for attending, or relieve a party from attending, a part of a trial in which the party has no interest; or(c) stay the proceeding against a defendant or respondent until the trial between the other parties is decided, on condition that the defendant or respondent against whom the proceeding is stayed is bound by the findings of fact in the trial against the other defendant; or(d) make another order appropriate in the circumstances.

Including, substituting or removing a party

Rule 69

(1) The court may at any stage of a proceeding order that -(a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or(b) any of the following persons be included as a party -

(i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;(ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.

Necessary in order to enable the court to effectually and completely adjudicate

It has been held that the Commissioner of Taxation may not have the necessary interest to be added as a party to proceedings: Coolibah Pty Ltd v C of T

Inclusion or substitution of a party after the end of a limitation period

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Rule 69

(2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies -

(a) the new party is a necessary party to the proceeding because -(i) property is vested in the party at law or in equity and the plaintiff's claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or(ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or(iii) the proceeding was started in or against the name of the wrong person as a party…(iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party….

(b) the relevant cause of action is vested in the new party and the plaintiff or applicant jointly by not severally;(c) the new party is the Attorney-General….(d) the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff/applicant is suing to enforce a right vested in the company(e) the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant/respondent and failure to include the new party may make the claim unenforceable.(f) there has been a change in law or practice that requires, in the interests of justice, the inclusion or substitution of a party(g) for another reason the court considers it just to include or substitute the party after the end of the limitation period

r69(2)(g) Another reason the court considers just

Rule 69(2)(g) is without the restriction imposed on its predecessor that "peculiar" or "special" circumstances be established as a prerequisite to joinder out of time: Jerome & Anor v Hill v Ors

Under the new rule, a judgement must still be made as to what is just in the circumstances of the individual case, however the discretion is not as constrained as it formerly was: De Innocentis v BCC

The criteria to be considered: (per Jerome & Anor v Hill & Ors): that the party being joined was aware of the incident and the proceedings the plaintiff may fail to recover damages if the joinder was not allowed the situation was largely of the plaintiff's own making in that proceedings were not commenced until

the limitation period had almost expired there was no explanation for the failure to investigate the issue earlier in the proceedings

Supreme Court of Queensland Act 1991 (Qld)

Section 81 provides that the court may order an amendment or grant leave for a party to make an amendment even though (a) the amendment will include or substitute a cause of action or add a new party; or (ii) a relevant period of limitation, current when the proceedings was started, has ended.

The section applies despite the Limitation of Actions Act 1974: s.81(3)

Note:

Where the identity or designation of a party is changed under these rules, r74 provides that the proceeding against the new defendant/respondent starts on the filing of the amended copy of the originating process, however for the purposes of a limitation period, time is taken to have started when the proceeding started against the original defendant/respondent, unless the court otherwise orders.

(vi) Particular Parties

There are special provisions facilitating and regulating proceeding involving particular parties

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Crown Crown immunity - Mighell v Sultan of JohoreJudiciary Act (Cth) ss56,61Crown Proceedings Act 1980 (Qld) s8

Persons under a Legal incapacity

Rule 93 - Litigation guardian of person under a legal incapacity

(1) A person under a legal incapacity may start or defend a proceeding only by the person's litigation guardian.

(2) Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done only a party may, if the party is under a legal incapacity, be done by the party's litigation guardian

(3) A party's litigation guardian who is not a solicitor may act only by a solicitor

"Person under legal incapacity"

Has been taken to mean: a person with impaired capacity

ie. a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings: schedule 2, Supreme Court of Queensland Act 1991

Acts deeming incapacity include:- Intellectually Disabled Citizens Act 1985 "intellectual impairment caused either

congenitally or as a result of illness or injury"- Mental Health Act 1974 "incapable of managing their own affairs"

a young person (ie. minor per Age of Majority Act (Qld))

Who may be a litigation guardian?

Rule 94

(1) A person may be a litigation guardian of a person under a legal incapacity of the person-

(a) is not a person under a legal incapacity(b) has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity

Partnerships

Rule 82

A "partnership proceeding" is a proceeding started by or against a partnership in the partnership name and includes a proceeding between a partnership and 1 or more of its partners.

Proceeding in partnership name

Two or more partners may start a proceeding in the partnership name: r83(1). A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name: r83(2)

The partnership name used must be the name of the partnership when the cause of action arose: r83(3)

Disclosure of partners' names

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At any stage of a partnership proceeding, a party may be written notice require the partnership to give the names and places of residence of the persons who were partners in the partnership when the cause of action arose: r84(1). Notice of at least 2 business days must be given: r84(2).

Notice of intention to defend

A notice of intention to defend [form 6 or 7] must not be filed in the partnership name (despite the name in the originating process): r85(1), but the name of the partner who is served: r85(2).

The proceeding continues in the name of the partnership: r85(3)

Where on partner files a notice of intention to defend, it precludes judgement against the other partners, as the notice is sufficient for the entire partnership: Lysaght v Clark

Service

An originating process against a partnership must be served on 1 or more partners, or on a person at the principal place of business who appears to have control or management of the business there.

Defence

Except for a person who files a conditional notice of intention to defend (under r86), a person may file a defence for the partnership in the partnership name only: r87

Enforcement

On the application by a person seeking to enforce an order against partners in the partnership name, the court may give leave for the order to be enforced against a person who is liable to satisfy the judgement: r88(1)

Business names

Rule 89 - Proceeding if registered business name

A proceeding may be started against a name registered under the Business Names Act 1962

Proceedings can also be brought against a person under a name or style other than the person's own name where the name is not registered: r90

Notice of intention to defend

Regardless of whether a proceeding is brought against a registered or unregistered business name, a notice of intention to defend must be in the name of a person: r91(2)

A person who files a notice of intention to defend must file and serve with the notice, a statement of the names and places of residence of all persons who were carrying on business under the name or style as at the day the proceeding was started: r91(3)

Amendment as to parties (unregistered business names ONLY)

If a proceeding is bought in an unregistered business name, the plaintiff/applicant must, as soon as practicable, take all reasonable steps to find out the name of the persons carrying on the business under the name or style in question (r92(2)), and amend the proceeding (r92(3)).

Until the amendments are made, a party may only proceed with leave of the court: r92(4)

Defendant/respondent dead at start of proceeding

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If a defendant/respondent is dead when an originating process is issued, and a grant of representation has not been made, the cause of action survives the person's death: r71(1)

If the party filing the originating process knows the person is dead, the originating process must name the defendant/respondent the 'Estate of [person's name] deceased'

Bankruptcy/incapacity/death during proceeding

If a person to a proceeding become bankrupt, impaired or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if

the court gives the person leave to proceed; and the person follows the court's directions on how to proceed: r72(1)

Where a plaintiff/applicant dies and the cause of action survives death, and no order substituting another party is made for the deceased, the court may order that unless an order for substitution is made within a specified time, the proceeding be dismissed: r73

Interpleader

Interpleader proceedings are used where a person is faced with competing claims for the same item of property

There are 2 types:

Stakeholders interpleader - r949 A stakeholder is a person other than an enforcement officer (generally a person liable for

the property) They must prove:

- they have no interest in the property other than for costs- they are not in collusions with the claimants

Enforcement Officer's interpleader - r950 The court assists in selling up a debtor's assets, whilst another party claims an interest in

the property. They must prove:

- they have no interest in the property other than for costs- they are not in collusions with the claimants

The claimant must give written notice of their claim, otherwise they are precluded from issuing later proceedings against the Enforcement Officer in relation to exercising that warrant.

(vii) Consolidation of Proceedings

Rule 78

The court may order that 2 or more proceedings be consolidated if -(a) the same or substantially the same question is involved in al the proceedings; or(b) the decision in 1 proceeding will decide or affect the other proceeding or proceedings

(viii) Representative Proceedings (similar to class actions)

Where parties have the same interest in the subject matter, a person may represent a group of plaintiffs/defendants

Rule 75

A proceeding may be started and continued by or against 1 or more persons who have

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the same interest in the subject matter of the proceeding as representing all or persons who have the same interest and could have been parties in the proceeding.

Application

Carnie v Esanda Finance Corporation

Facts: the plaintiff appellants were farmers who had obtained credit from the defendant respondent to

purchase farm equipment and had sought relief by way of declaration that certain agreements (variation agreements) were in breach of Credit legislation and were therefore void.

They sought to represent all other persons party to similar agreements with the defendant. The defendants challenged the plaintiffs' pleading in so far as it sought to plead a

representative action

Held: Despite the fact that the claims were made under separate contracts, the borrowers had the

same interest in the determination as to whether the variation agreements were in contravention of the act

Therefore, the HC has adopted a liberal view

Order for representation

At any stage of a proceeding, the court may appoint 1 or more parties named in the proceeding, or another person, to represent the persons have the same interest: r76(1)

Enforcement of order against representative party

An order made in a proceeding against a representative party may be enforced against a person not named as a party only with the court's leave: r77(1)

Section 82 Supreme Court of Queensland Act provides that an order in representative proceedings binds all of those persons who have the same interest and could have been parties to the proceedings

(ix) Third Party Proceedings

Proceedings involving claims by defendants against 3rd parties. They arise in 2 situations: where a defendant seeks to lay the responsibility for the plaintiff's claim on a third party where there are several defendants, one of which seeks to claim against another

Rule 192 provides that a claim may be made by a defendant in the proceedings against a person not a party to the proceedings for:

a contribution or indemnity; or a claim relating to or connected with the original subject matter and substantially the same relief as

that claimed by the plaintiff; or requiring a connected question or issue to be decided in relation to the third party

Third party notice has the effect of constituting an action between the defendant and the third party. The plaintiff has no rights against such a third party, unless the plaintiff makes them a defendant.

A third party notice cannot be filed until after the defendant has filed a defence.

Leave of court is required in all cases.

A third party notice is also used by defendants, except where a defendant is seeking to recover a contribution from another under section 6 Law Reform Act 1995.

Third Party Notice

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Form 14

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Documents

LIMITATION OF ACTIONS; JOINDER OF CLAIMS & … Notes/Civil Law/old/Lecture... · Web viewlimitation of actions; joinder of claims & parties A. Limitation of Actions Act 1974 For most