Case: Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585
Outcome: followed
Unfortunately, these principles do not address the considerations relevant for the exercise of the discretion to join Ms Nader in the factual context of this application. It is necessary to understand the purpose of and interrelation between the various relevant rules in Order 6. This has been explained in some detail by the High Court in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590, 593-594, 598, 601-602, and Mahoney JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 44C-56D in considering analogues, not wholly identical, of Order 6 in Judicature system court rules. More recently Branson J, in Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127 at [14] - [18] followed Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388. Her Honour observed that the extent to which causes of action against different persons legitimately may be prosecuted is governed by O 6 r 2 of the Federal Court Rules . The parties did not make submissions on this question or refer to Branson J's judgment or the authorities on which it was based at the hearing. When I found her Honour's judgment after judgment was reserved, accordingly, I asked for further submissions which the Bank, the first to fifth respondents in the Bank proceedings and Ms Nader provided on 19 April 2006. 33 As the passage just cited shows, the analogue of O 6 r 8 enabled the court to add a party, then limited to a defendant, where the interests of that party would be affected by the result of the proceedings as they were presently framed. Moreover, it enables the court to add a party where there are common questions of fact or law involved in different causes of action; but the context is, as Williams J said in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 601 (and see too at 593, 597-598) of an analogue of O 6 r 8, again limited to joinder of a defendant: '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.' His Honour emphasized that these rules are to be construed liberally to authorize the joinder of actions that can be conveniently tried together with safeguards to prevent defendants being prejudiced (65 CLR at 601). 34 And, this construction is reinforced by O 6 r 11(1)(b) which permits orders for amendment, in effect, consequent upon the joinder of a new party under O 6 r 8: see also Richardson v Trautwein (1942) 64 CLR at 601 per Williams J and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 745E-746C per Mahoney JA, see too at 749F-751C per Priestley JA. So, O 6 r 8 has to do, primarily, with ensuring that the rules of natural justice, entitling a person whose rights may be affected by a decision to be heard before the decision is made, and ensuring that any proper contradictor can be joined so as to assist in the court's discharge of its statutory obligation under s 22 of the Federal Court of Australia Act 1976 (Cth). That provides: 'The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.' 53 At first blush, the proposed claim against Ms Nader might have the requisite commonality under O 6 r 2(a) only with the Bank's cases against Marie and Josephine Saklaoui. But that argument does not stand examination, for the Bank's 'transactions' with Marie and Josephine Saklaoui are quite different from its transactions with the other guarantors, if for no other reason than the involvement of Ms Nader. But there are also other reasons for the distinctiveness of the transactions so as to entail that they do not satisfy O 6 r 2(a)(ii). The proposed claim against Ms Nader is framed against her as an individual who is alleged to be solely liable for her own alleged fraud and other tortuous and statutory liabilities, all of which depend on a finding that each of the transaction or transactions on the face of the guarantees, mortgages and certificates was not as it appeared, viz : valid, correct and enforceable (see too Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590 per Rich J, 593 per Starke J, 598 per McTiernan J, 601-602 per Williams J).