Case: Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609
Outcome: discussed
In Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609 the High Court considered its analogical rule which, as Barwick CJ emphasized (145 CLR at 614) spoke of ' ... plaintiffs in whom any right to relief is alleged to exist'. The operation of O 6 r 2(a)(ii) is different and less liberal for it requires ' all the rights to relief ' to be in respect of or to arise out of the same transaction or series of transactions. 46 Here the rights to relief claimed by the Bank against Ms Nader are legally and factually independent of the claims by the Bank against the guarantors other than Marie and Josephine Saklaoui for the purposes of O 6 r 2(a) because none of the other guarantors participated in the transactions between each of Marie and Josephine Saklaoui, Ms Nader and the Bank. As Mason J said in Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609 at 618 (see too per Barwick CJ at 614-615, Stephen J at 615 and Aickin J, whose decision at first instance was affirmed, at 611) of the amendment to the English rules in 1898: 'The object of the amendment was to allow several plaintiffs to join separate causes of action where under the old rule as interpreted by judicial decision they could not do so. Subject to the two limitations expressed in pars. (a) and (b) of the rule, it permits the joinder of separate causes of action which have accrued to different plaintiffs. The effect of the rule was, in my opinion, correctly stated by Vaughan Williams L.J. in Stroud v Lawson when he said ([1898] 2 QB at pp 54-55): "I do not think that the rule means that the whole of a transaction must be involved in each of the causes of action joined. I think that, if there was a transaction or series of transactions in respect of which one plaintiff was interested up to a certain point, and other plaintiffs were interested, not only up to that point, but in respect of the entire transaction or series of transactions from beginning to end, under this rule they might joint their separate causes of action in one action, because there would be one transaction or series of transactions in respect of which the various plaintiffs all claimed a right to relief. Their remedies or damages might be different, but they would be claiming relief in respect of the same transaction or series of transactions." To these observations I would add the comment that the rule may well authorize the joinder of separate causes of action accruing to various plaintiffs against different defendants, so long as the causes of action arise out of the same transaction or series of transactions. The consequence is that under par. (a) of the rule joinder of separate causes of action accruing to different plaintiffs is authorized when the relief claimed is in respect of, or arises out of, the same or a particular series of transactions. Joinder is not authorized when the relief claimed is in respect of, or arises out of, two or more different series of transactions, when the participation of each individual plaintiff is limited to participation in one series of transactions, the other plaintiffs not participating in that series.' 50 The Bank argued that the requisite commonality was to be found in the fact that it sued all guarantors on a common debt which they jointly guaranteed or in which they were concerned and that this distinguished its case from Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609. 51 But here, the Bank's claim against each guarantor and, in particular, against each of Marie and Josephine Saklaoui, depended on its having entered into relationships based in contract and in interests in land ( viz : its mortgages). That is, the Bank relies on the reality and validity of those dealings as its primary case. Next, the Bank has now been given leave to amend to allege against, inter alios , Marie and Josephine Saklaoui, that each was guilty of fraud in proffering her guarantee, mortgage and signature of the certificate when, on this alternative, there will be no real or valid guarantee or mortgage. 52 Obviously, the two above ways of the Bank putting its case against the guarantors are distinct and involve different transactions or series of transactions. This not just because of the legal distinction between a claim under a valid and binding guarantee and or mortgage, and a claim that the Bank was the victim of a fraud because those instruments have been avoided or were void ab initio . It is also because there are six different guarantors, each with his or her own circumstances and, in substance, cases within the overall context of the Bank proceedings.