Case: John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394
Outcome: applied
At the hearing the principles upon which I was asked to exercise my discretion in granting leave to join Ms Nader to the Bank's proceedings, were set out in written submissions by the Bank which were accepted by Ms Nader's counsel. They are: ' Principles on Joinder 11. Order 6 rr.2 and 8 of the Federal Court Rules , permit the addition of parties. It is submitted with regard to the proposed causes of action against Ms Nader that there are clearly common questions of fact and law under O.6 r.2 which will arise in the proceedings and also relate to the proposed case against her. Under O.6 r.8 joinder is permitted where it is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon. 12. Order 6 r.8 should be liberally construed so that all parties to disputes relating to the one subject matter may be dealt with at the one time: Montgomery v Foy, Morgan &amp; Co. [1895] 2 QB 321 at 324; John Cooke &amp; Co. Ltd v Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411. In order to obtain a joinder order under the rule, a party must only show an arguable case against the proposed respondent at least to the standard of being able to resist an application for summary judgment by the proposed respondent to have the proposed party being sued in separate proceedings: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009. The phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings: it may also properly include those disputed issues of fact which are subjacent to the existing pleadings: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. Disputed issues of fact which underlie proceedings are subjacent to the pleadings: Fried v National Australian Bank Ltd [1999] FCA 737. As the joinder of Ms Nader is based upon affidavit evidence served in support of the existing pleadings, the case against Ms Nader is a matter currently in dispute in the proceedings.' 32 The structure of Order 6 is such that it gives primacy to O 6 r 2 over rules such as O 6 r 8, although cognately they have been held to give the Court very wide powers: John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411 per Knox CJ, Gavan, Duffy and Starke JJ. The only issue in that case was whether the vendors of skin wool, who were parties, were entitled to share equally with the vendors of shorn wool, who were not parties, in a wool fund held by the Central Wool Committee (31 CLR at 410). Their Honours continued in relation to analogues of the rules in O 6: 'These rules are practically the same as the English Judicature Rules, Order XVI., r. 11, and Order XXV., r. 5; and they undoubtedly give the Court very wide powers. But they are discretionary in their nature. (See Wilson, Sons &amp; Co. v. Balcarres Brook Steamship Co. and Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. .) Thus there is no doubt that the Court may "permit an action to go on, so that the rights of the parties before the Court may be determined even though all parties to the action are not before it" (see Robinson v. Geisel , at p. 689). The Rules, too, enable the Court to add parties who ought to have been joined or whose presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.' (footnotes omitted) 37 I am of opinion that O 6 r 8, on its proper construction, does not authorize the joinder of Ms Nader as sought. Her joinder would require, as is sought, substantive amendment of the Bank's statement of claim. Save for the assertion of her liability if the Bank's remedies against the guarantors in contract, pursuant to its interest in land the subject of its mortgages and its tortuous and statutory claims fail, Ms Nader has no interest in the subject matter of the Bank proceedings or the ASS proceedings. She is a discrete third party quite unlike the wool growers, for example, in John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 or the builder in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. 43 That said, it is now necessary to consider the construction and application of O 6 r 2. It provides two bases, each again discretionary ( John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411), for joinder. The second basis, in r 2(b), is emphatic of this discretion which falls to be considered having regard to the subject matter, scope and purpose of O 6 as whole and as part of the Federal Court Rules : The Queen v Australian Broadcasting Tribunal: Ex Parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49. The first basis, in r 2(a) involves considerations which have been the subject of over a century of judicial decisions. It requires not just the existence of a common question of fact or law in each proceeding which might be brought separately against two or more persons, but also that ' all rights to relief claimed' are in respect of or arise out of the same transaction or series of transactions (cf: Stroud v Lawson [1898] 2 QB 44 at 52). 61 Last, the Bank seeks the exercise of my discretion pursuant to O 6 r 2(b). As already noted the discretion is very wide ( John Cooke &amp; Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411; Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988, unreported, Federal Court of Australia) per Ryan J at 3; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989, unreported, Federal Court of Australia) per Hill J at [21]).