Case: Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64
Outcome: followed
So, if here, the only parties to the Bank proceedings had been Marie and Josephine Saklaoui the Bank's position may have brought it within the words of O 6 r 2(a)(ii). But because the Bank proceedings involve four other existing respondents this is not the case here because the 'transaction' or 'transactions' in which Marie and Josephine Saklaoui are involved is not related to and does not arise from the cases of the other guarantors (see too Marino v Esanda Ltd [1986] VR 735 at 740 per Tadgell J; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia) per Hill J at [22]-[23]; Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 7-72 [21] - [27] ). 62 In Bishop v Bridges (1990) 25 FCR 311 at 314, Wilcox J said that as the discretion in r 2(b) is in terms unconfined it would be inappropriate to specify circumstances in which it might be applied. He said, and I agree, that ' [e]verything must depend upon the facts of the particular case '. His Honour continued (25 FCR at 314-315; see too per Austin J in Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 72-74 [28] - [36] ; Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 220-221 [22] - [23] per Goldberg J): 'But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.' 63 In Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 221 [23] , Goldberg J approved what Wilcox J said adding that the court should also be concerned to determine what is the most efficient use of the resources of the parties and also of the court. In adopting the principles identified by each of Wilcox J and Goldberg J, Austin J ( Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 73 [31] ) said that '[t]his leads to a practical calculation of advantages and disadvantages'. Of course, one relevant consideration to which regard may be had in the exercise of the discretion under O 6 r 2(b) is that r 2(a) would have no work to do if r 2(b) were to be construed without regard to the fact that it is an alternative to r 2(a). Ordinarily, the exercise of the discretion under r 2(b) should be seen to be in the interests of justice having regard to the features of the case which have meant that the conditions in r 2(a) cannot be met.