Order 9 - Joinder of Claims and Parties Flashcards
9.01 Joinder of claims
A P may join any number of claims against a defendant—
(a) whether the P makes the claims in same or / different capacities
(b) whether claims are made against D in same or different capacities
9.02 Permissive joinder of parties (P joining parties)
(a)(i) separate proceedings—-
(ii) rights to leave
(b) court gives
(this is at the beginning of proceedings)
Two or more persons may be joined as Ps or Ds in any proceeding—
(a) where (i) If separate proceedings were brought a common q of law or fact would arise in each AND (ii) all rights to relief claimed in proceeding (whether joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions. Or.
(b) The court gives leave, either before or after the joinder.
Crt will likely consider:
● Are the proceedings broadly of a similar nature?
● Are there issues of fact and law common to each proceeding?
● Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
● Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide outcome, or, at least, determination of common issues of fact and law?
● Will there be substantial time saving if proceedings tried at same time, compared with each proceeding tried separately?
● Will order that proceedings be tried at same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
● Is one proceeding further advanced in terms of preparation for trial than others?
● Are there parties to one or some only of proceedings who will be inconvenienced if all of proceedings are tried at same time?
9.03 Joinder of necessary parties (again, by P) - joint plaintiffs (or D if refuse); joint Ds on pain of stay (not if J&S)
1) Except by order of the Court or provided by/under any Act, where P claims any relief to which any other person is entitled jointly with the P
(a) Any person jointly entitled to relief with P shall be joined (b) any person who does not consent to being joined as a plaintiff shall be made a defendant
(2) DO NOT need to join Ds if jointly and severally liable
(3) Where liable jointly but not severally under a contract, court can stay proceedings unless P adds all relevant Ds.
(4) Court can make order under (1) before or after non-joinder.
9.04 Joinder inconvenient
Notwithstanding rr 9.01/9.02, where any joinder of claims or parties may embarrass or delay trial or cause prejudice to any party or is otherwise inconvenient, Court can make following orders:
● (a) There be separate trials (b) Any claim be excluded
● (c) party be costs-compensated for having to attend/be relieved from attending, any part of trial in which have no interest
● (d) Any person made a party may cease to be party on condition they be bound by determination of the questions in the proceeding, or without such a condition
9.05 effect of misjoinder or non-joinder
Proceeding shall not be defeated, and Court may determine all questions in the proceeding so far as they affect the rights and interests of the parties
9.06 Addition, removal, substitution of party (proper/necessary; ought; exists question)
At any stage of the proceeding, Court can order that:
● (a) Any person who not proper or necessary party, whether or not they were a party originally, cease to be a party
● (b) Any of the following persons be added as a party:
○ (i) Person who ought to have been joined or whose presence before the court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; OR
○ (ii) A person between whom and any party there may exist a question arising out of related to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and the party as well as the parties to the proceeding.
● (c) Substitution if the above apply
9.07 Procedure for addition of a party
(1) Can’t be added as P without their consent signified in writing or in such manner as court orders
(2) Unless court orders, an application by a person for an order adding the person as a party shall be supported by an affidavit showing the person’s interest in questions in proceeding or question to be determined as between that person and any party to the proceeding
(3) Without limiting 9.06(b) (who can be added) → where a person not
a party to a proceeding for the recovery of land is in possession by himself or herself or by a tenant of the whole or any part of the land, the Court may order that the person be added as a defendant.
9.08 D dead at comm’t of proceeding
(1) Where a COA survives against the estate of a dead person, person wishing to obtain judgment in respect of that COA may, if no grant of representation has been made, bring a proceeding against the estate.
(2) bring agaisnt estate of AB deceased
(3) if simply commences proceeding naming dead person, deems to be like (1) above. (4) If grant representation, ats. personal representative
(5) Court has power to appoint a representative.
(6) TAC exception (7) court can order that personal representative be a party (8) can apply for order per (5) and (7).
(9) before making such orders, court may require to give notice to any insurer of deceased with interest, any other person with interest
(10) where no grant made, proceeding will bind estate as if grant made
(11) grant of representation means an order granting probate or administration in Vic or the resealing of a foreign grant in Vic
9.09 Change of party on death, bankruptcy
(1) If cause of action survives, proceeding shall not abate but may be carried on. (2) court may order the other person be added as a party in substitution for the original part (ie, where interest/liability is assigned/transmitted/devolves on another person)
(3) person on whose application an order is made under (2), (a) shall serve order on every current/old/new party; (b) for person who becomes D, serve them with order and writ/other OP. (4) must file apperance. (5) Where an order is made w.o notice to a person
on whom the order is served, an application by that person to set aside or vary the order shall be made within 10 days after service.
9.10 Failure to proceed after death of a party
(1) Court can order that if no 9.09(2) order for substitution made under above within specified time, the proceeding be dismissed.
(2) can direct that if proceeding dismissed, costs awarded (a) to D against personal representative of P if P dies;
(b) if D dies, to personal representative of deceased against P.
(3) Where P dies, the Court shall not make an order under paragraph (1) unless due notice of application for it has been given to (a) personal rep of deceased if any; and (b) any other person having an interest in estate of deceased who, in Court opinion, should be notified.
(4) above applies mutatis mutandis on counterclaim
9.11 Amendmnt of proceedings after change of party
(1) On order being made per rr 9.06 or 9.08, (a) writ or other OP shall be amended accordingly in time specified and otherwise within 10 days after order (b) indorse OP with order and date of order/amendment
(2) filing of a copy of the OP amended and indorsed as required by paragraph (1) shall be a sufficient compliance with that paragraph.
(3) Where order’s made under rr 9.06 or 9.08 adding/substituting person as D (a) proceeding against the new defendant commences upon the amendment of the filed originating process per (2)
(b) shall serve amended OP within court-directed time, and personally unless otherwise ordered (c) proceeding shall continue as if new D were an original D, and if new D is substituted D, all things done in proceeding per old D shall have effect against new D, except for requirement to file appearance.
9.12 trial together or Consolidation
(1) Where two or more proceedings are pending in the Court and
● (a) Some common q of law or fact arises in both or all; OR
● (b) The rights to relief claimed are in respect of or arise out of the same (series of) transaction(s); OR
● (c) any other reason it’s desirable to make order per this rule —
Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them.
(2) Any order for trial together of two or more proceedings or for the trial of one immediately after the other, shall be subject to the discretion of the trial Judge.
9.13 Conduct of the proceeding
The Court may give the conduct of the whole or any part of a proceeding to such person as it thinks fit.
