Interline Hydrocarbon Inc v Brenzil Pty Ltd
[2006] QSC 184
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- Unreported Judgment
- Interline Hydrocarbon Inc v Brenzil Pty Ltd[2006] QSC 184
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Interline Hydrocarbon Inc v Brenzil Pty Ltd[2006] QSC 184
Reported at [2006] 2 Qd R 454
Interline Hydrocarbon Inc v Brenzil Pty Ltd[2006] QSC 184
Reported at [2006] 2 Qd R 454
SUPREME COURT OF QUEENSLAND
CITATION: | Interline Hydrocarbon Inc v Brenzil P/L [2006] QSC 184 |
PARTIES: | INTERLINE HYDROCARBON INC |
FILE NO/S: | S6229 of 2000 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 1 August 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 June 2006 |
JUDGE: | Muir J |
ORDER: | 1.Interline Resources Inc be joined in the proceedings as the second defendant by counterclaim. 2.The action against it is deemed to have commenced with the filing of the applicants’ claim and statement of claim filed on 26 March 2001. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant seeks to join first defendant by counterclaim’s parent company – where application brought outside limitation period – where claim, inter alia, under Trade Practices Act 1974 (Cth) – whether state procedure rules operate where federal jurisdiction exercised – whether application to join falls within provisions of r 69(2) Uniform Civil Procedure Rules 1999 (Qld) Acts Interpretation Act (Qld), s 32C Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 34, s 35 Judiciary Act 1903 (Cth), s 79 Trade Practices Act 1974, s 52, s 82 Uniform Civil Procedure Rules 1999 (Qld), r 69 Agtrack (NT) Pty Ltd (T/as Spring Air) v Hatfield (2005) 218 ALR 677, distinguished Air Link Pty Ltd v Paterson (2005) 218 ALR 700, cited Bird v HTW Valuers (Brisbane) [2004] QSC 234, cited Bridge Shipping Ltd v Grand Shipping SA (1991) 173 CLR 231, considered MAM Mortgages Ltd (in liq) v Cameron Bros (a firm) [2002] QCA 330, considered PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 7 VR 106, considered Ramsay v McElroy [2004] 1 Qd R 667, applied Smith, Stone and Knight Ltd v Lord Mayor, Aldermen and Citizens of the City of Birmingham [1939] 4 All ER 116, cited Spreag v Paeson Pty Ltd (1990) 94 ALR 679, cited Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, considered Wrightson v Queensland [2005] QCA 367, cited |
COUNSEL: | R J Bond SC, with him D Williams, for the plaintiff/first defendant by counterclaim/respondents R Douglas SC, with him D de Jersey, for the defendants/plaintiffs by counterclaim/applicants |
SOLICITORS: | Bennett & Philp Solicitors for the plaintiff/first defendant by counterclaim/respondents Anthony Wright, Solicitor, for the defendants/plaintiffs by counterclaim/applicants |
- By this application the plaintiffs by counterclaim, Brenzil Pty Ltd (“Brenzil”) and Nationwide Oil Pty Ltd (“Nationwide”), seek to join as second defendant by counterclaim Interline Hydrocarbon Inc’, (“Hydrocarbon”) parent company, Interline Resources Corporation (“Resources”). The application is opposed on grounds, inter alia, that the causes of action upon which Hydrocarbon sues and on which Resources would sue are statute-barred.
The proceedings
- Hydrocarbon’s claim was filed on 19 July 2000.
- The following allegations are made in the pleadings. Hydrocarbon entered into a written agreement with Nationwide’s parent company, Transpacific Industries Group Ltd (“Transpacific”), on 24 August 1996. Under it, Hydrocarbon agreed to construct and sell to Transpacific a unit which would be used to process used oil into commercially marketable products (“the Unit Purchase Agreement”).
- On or about 25 June 1997, Hydrocarbon, Transpacific and Nationwide entered into a written novation agreement pursuant to which Nationwide became a party to the Unit Purchase Agreement. Hydrocarbon granted to Brenzil an exclusive licence to use certain technology, expertise and intellectual property relating to the processing of used oil into commercially marketable products. Brenzil sub-licensed those rights to Nationwide under an agreement (“the Licence Agreement”). A processing unit was constructed pursuant to the Unit Purchase Agreement by Hydrocarbon between October 1997 and August 1998. Brenzil and Nationwide have failed to pay the moneys due and payable to Hydrocarbon under the Unit Purchase Agreement and have also sold certain “finished products”, for which US$1,923,952.04 plus interest is owed by them to Hydrocarbon.
- In the defence and counterclaim it is alleged that Hydrocarbon made representations to the defendants on 31 March 1998, in reliance upon which Brenzil elected not to terminate the Unit Purchase Agreement and the Licence Agreement. Those representations were misleading and deceptive within the meaning of s 52 of the Trade Practices Act 1974 (“the Act”). The subject unit was incapable of producing used oil as required by the Unit Purchase Agreement and the applicants thereby suffered loss and damage.
- The applicants’ claims against Hydrocarbon are for:
- Breach of contract;
- Negligence; and
- Damages under s 82 of the Act.
- The issues for determination on this application are:
- Can r69(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) authorise the addition of a party if that party’s cause of action accrued outside the limitation period in s 82(2) of the Act?
- Does either or both of r 69(2)(a)(iii) or (iv) of the UCPR apply in the circumstances under consideration?
- Whether Resources is sued jointly but not also severally with Hydrocarbon; and whether failure to include Resources may make the claim “unenforceable” within the meaning of r 69(2)(e) of the UCPR.
The scope of operation of r 69(2)(iii) or (iv)
- Rule 69(1) permits a court “at any stage of a proceeding” to order the joinder as a party of a person “whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely in all matters in dispute connected with the proceedings.”
- After the end of the limitation period, however, a court must not include or substitute a party unless one or more of the requirements listed in the subsection is or are met. Those requirements include sub-rules (2)(a)(iii) and (iv) and also sub-rule (2)(e) of r 69.
- Sub-rules (2)(a)(iii) and (iv) provide:
(2)However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies –
(a)the new party is a necessary party to the proceeding because –
…
(iii)the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or
- the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order…”
- Rule 69(2) is ancillary to r 69(1)(b) which authorises the addition of parties in prescribed circumstances. Where a limitation period has expired at the time of the determination of a joinder application, a person who could have been included as a party under r 69(1)(b) may be included only if one of the requirements of r 69(2) is satisfied. In the case of the four requirements listed in sub-rule (2)(a) the introductory words, “the new party is a necessary party to the proceeding because…”, suggest that the proposed new party is to be taken to be a “necessary party” if the circumstances fall within any of paragraphs (i), (ii), (iii) and (iv).[1]
- It is argued on behalf of the respondents that r 69(2)(a)(iii) and (iv) have no application. It is pointed out that Hydrocarbon is a contracting party in “the suite of agreements” and was and still is intended to be a defendant by counterclaim. It is further submitted that both sub-rules are aimed at cases of misnomer and not at circumstances in which the applicant’s position is that although it claimed against a correct party, it should also have claimed against another.
- The construction preferred by the respondents is altogether too restrictive. In Bridge Shipping Ltd v Grand Shipping SA,[2] McHugh J, with whose reasons Brennan and Deane JJ agreed, undertook an exhaustive analysis of the meaning of r 36.01 of the Victorian Supreme Court Rules, in the course of which he had regard to analogous provisions in the Supreme Court Rules (UK),[3] the Rules of the Supreme Court of New South Wales and of the Supreme Court Rules (Qld).[4] Rule 36.01(4) (Vic) provided:
“A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.”
- Order 20 r 5(3) of the Supreme Court Rules (UK) provided:
“An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.”
- The terms of O 32 r1(3) (Qld) were virtually identical to those of the English provision.
- McHugh JA concluded that r 36.01 covered not only cases of misnomer, clerical error and misdescription but also cases “where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description”.[5] The concept underlying that conclusion is explained by his Honour in the following passage:
“Moreover, a plaintiff may make ‘a mistake in the name of a party’ not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake ‘in the name of a party’ because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake ‘in the name of a party’ because, although intending to sue a person whom the plaintiff knows by a particular description, e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r.(4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r.(4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r.(4) as dealing only with the case where the plaintiff says: ‘The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X’. The sub-rule applies equally to the case where the plaintiff says: ‘The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X’. In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.”[6]
- I note that McHugh J concluded that insofar as cases in Queensland and Victoria suggested that O 32 r 1(3) should be given more restricted meaning, they were wrongly decided and should be overruled.[7] It was his opinion also that the subject rules were remedial in nature and that should be given “the widest interpretation which its language will permit”.[8]
- Order 20 r 5(3), O 32 r 1(3) and r 36.01(4), unlike sub-rule 69(2)(a)(iv), operate only in the case of a “mistake in the name of a party”. The English provision has the additional requirement that the court be satisfied that “the mistake … was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person … intended to be sued.” Sub-rules (iii) and (iv) of the Queensland provisions contain no such limitations. All that is required for the application of sub-rule (iv) is that the court consider it doubtful that the proceeding was started “against the name of the right person as a party”. There is the further qualification that “if a person is to be included or substituted as a defendant the person [be] given notice of the court’s intention to make the order”. None of the rules discussed in Bridge Shipping contemplated, as sub-rules (iii) and (iv) do, that a defendant may be “included” as well as “substituted”. That difference, of itself, necessarily gives sub-rule (iv) a distinctly wider field of operation that the other rules.
- Plainly, sub-rules (iii) and (iv) cannot be construed as if their words were replaced by the wording of O 32 r 1(3);[9] and the remedial nature of the Rules must also be borne in mind.[10]
- By virtue of the Acts Interpretation Act 1954 (Qld), the singular includes the plural.[11] Relevantly, then, sub-rule (iv) may be read as follows:
“The court considers it doubtful the proceeding was started against the name of the right persons as parties, and, if a person is to be included as defendant, the person is given notice of the court’s intention to make the order.”
- It follows that the sub-rule may operate in circumstances in which there was and remains a good cause of action against the initial defendant, who is to remain a defendant in the proceeding. Given the features of sub-rule (iv) which I have identified, the limits of its operation are difficult to define but it appears to me that the allegations made and proposed to be made in this proceeding are capable of coming within it.
The application of r 69(2)(a)(iv)
- The evidence upon which the applicants place principal reliance is set out in the following passage from their counsel’s outline of submissions:
“(a)in an affidavit sworn 2 November 2005 (Court file number 88) at para 4, Mr Williams of the Plaintiff states ‘the Plaintiff and or its subsidiaries had total assets worth US $4 million and total liabilities of US$1.1 million’. In an affidavit sworn 7 December 2004 (Court file number 83) at para 6, Mr Williams said the reference he made in his 2 November 2004 affidavit as to the assets and liabilities of the Plaintiff was incorrect because he ‘meant to refer there to Interline Resources’ and that ‘the mixing of the references [to the Plaintiff and to Interline Resources] reflects my common usage that the two companies were for all intents and purposes the same entity’;
(b)also in his affidavit of 7 December 2004 (Court file number 83), Mr Williams swore to the following:
(i)‘Of course there is a parent and subsidiary relationship between Interline Resources and interline Hydrocarbon. The group of companies of which they are part are treated in this office with the exception of bank accounts as a single entity’;
(ii)‘Interline Resources owns 100% of Interline Hydrocarbon. The companies have the same mix of officers and an interlocking directorate’; and
(iii)‘The treatment of the Interline Group of companies as a single entity has been the case for the last few years with respect to running this litigation. Interline Hydrocarbon has effectively been inactive. Interline Resources has funded the litigation.’”
- The applicants argue that Resources was Hydrocarbon’s principal in respect of the subject transactions. Alternatively, it is argued that Resources was Hydrocarbon’s undisclosed principal or alternatively Hydrocarbon was Resources’ alter ego. In the latter regard, it will be argued that any representations and misleading and deceptive conduct were in truth those of Resources.
- Other factual matters are relied on to support these contentions. In his 7 December 2004 affidavit, Mr Williams stated that all the companies in Resources’ group of companies had only one “physical office” and that “there is only a small number of employees who work for the group of companies”. Payments under the Unit Purchase Agreement were made to Resources, which paid for the construction of the processing unit. Around the time of entering into the subject agreements, relevant correspondence was conducted in the name of Resources rather than Hydrocarbon; and on 5 September 1996, Resources issued a news release stating that “Interline Resources Corporation … signed an exclusive purchase agreement” with the applicants.
- The respondents contend that if the application does fall within the provisions of r 69(2), the discretion conferred on the court by the sub-rule should nevertheless be exercised against them. To allow the commencement of proceedings so as to defeat a limitation period is prima facie prejudicial to a defendant who would otherwise have the benefit of that limitation.[12] Furthermore, it is argued that there is no rational explanation for why the application to join Resources was not made earlier; and such an explanation is required.[13]
- The applicants intended to sue Hydrocarbon. It was the contracting party. But they were unaware of many of the facts just recited and of the legal implications of those facts. In particular, they were unaware that persons believed to be officers and/or employees of Hydrocarbon may have been officers or employees of Resources. Nor was it understood that Hydrocarbon may have been acting as Resources’ agent, or alter ego, that the interposition of Hydrocarbon may have been no more than a façade. Without attempting to be exhaustive, it is doubtful that the proceeding was started against the name of the right corporation as a party where only one of two corporations potentially liable is sued and the corporation not sued is the holding company of the other, its principal and perhaps its alter ego. It is sufficient for present purposes that the applicants have an arguable case in that regard. Additionally, sub-rule (iv) operates where the court considers it doubtful that the proceeding was started against the name of the right person.
- I mentioned that I am not purporting to express a concluded view on the applicants arguments based on cases such as Smith, Stone and Knight Ltd v Lord Mayor, Aldermen and Citizens of the City of Birmingham[14] and Spreag v Paeson Pty Ltd.[15]
- Chesterman J observed that “[a]n explanation for the failure to join the party within time will always be relevant though lack of such an explanation is not a precondition to the power”.[16] I respectfully agree.
- The joinder application could and should have been brought earlier. The respondents point out that many of the matters referred to by Mr Wright in his affidavit have been within the knowledge of the applicants for a considerable period of time. No doubt that is true but it is one thing to know of a collection of seemingly discrete facts and another to turn one’s mind to the legal implications or consequences of those facts considered in combination. Mr Wright swears that “the true position as to the relationship between Hydrocarbon and Resources … only became clear to the [applicants] when the matters of which the [applicants] were already aware could be properly understood in the context of the Internet searches” conducted after October 2005. He deposes also to the applicants not having received legal advice in relation to the matters in question “prior to late 2005”. The delay to that point has thus been explained. And it does not appear that the respondents will suffer any particular prejudice from any delay after late 2005 or, for that matter, prior to that time.
- The litigation is being funded by Resources, which at all material times has shared office bearers and employees with Hydrocarbon. Resources has had full knowledge of the matters the subject of the proceeding at all times. It appears to be funding the litigation and stands to benefit from it. It may be the case also that it took the effective financial benefit of all relevant contracts.
Does Rule 69(2)(e) have application?
- The word “unenforceable” in sub-rule (e) must be construed in the context of the wording of the sub-rule. The sub-rule applies in quite specific circumstances, namely where the new party is sued jointly with the defendant and is not also severally liable with the defendant and where failure to include the new party may make the claim unenforceable. The concept of unenforceability is linked to “the claim” and not to judgment or orders on determination of the claim. In MAM Mortgages Ltd (in liq) v Cameron Bros[17] McPherson JA, with whose reasons the other members of the Court agreed, pointed out that the sub-rule had to do with the consequences at law of a failure by a plaintiff to join as defendants all joint co-promisors.[18]
- The basis of unenforceability, as relied on by the applicants, is that any judgment they obtain against Hydrocarbon will not be able to be satisfied as a result of its want of financial resources. But, in my view, “unenforceable” in sub-rule (e), for the reasons I have given, does not embrace the notion of execution of an order or judgment.
Does r 69(2) permit the addition of a party after the expiry of the six year limitation period in s 82(2) of the Act?
- In Ramsay v McElroy[19] the Court of Appeal concluded that s 81 of the Supreme Court of Queensland Act 1991 (Qld), coupled with r 376(4) of the UCPR, authorised the addition of a new cause of action under s 82 of the Act notwithstanding the expiration of the limitation period in s 82(2).
- The respondents argue that the authority of Ramsay v McElroy does not survive the consideration given to the operation of s 79 of the Judiciary Act in Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [20] and in Air Link Pty Ltd v Paterson.[21]
- In Ramsay, it was held that the amendment to the claim permitted at first instance gave rise to a new cause of action which had accrued more than three years prior to the commencement of proceedings.[22] The reasoning of White J, who gave the court’s principal reasons, was to the following effect. In Wardley Australia Ltd v State of Western Australia[23] Toohey J, with whose reasons Deane J agreed, concluded that s 82(2) presented a statutory barrier to the addition of any new cause of action after the expiration of the limitation period. But subsequent to the decision in Wardley, the Federal Court of Australia Act 1976 (Cth) and the Rules of Court under it were amended and were similar in effect to s 81 of the Supreme Court of Queensland Act 1991 and r 376 of the UCPR. There was thus an express legislative power to amend outside any limitation period. In entertaining claims for damages under s 82(1) of the Act, the Supreme Court was exercising federal jurisdiction and s 79 of the Judiciary Act 1903 (Cth) applies. It relevantly provides:
“The laws of each State … including the laws relating to procedure, …shall, except as otherwise provided by … the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State … in all cases to which they are applicable.”
- Section 80 of the Judiciary Act provides that so far as the provisions of the laws of the Commonwealth are insufficient to carry them into effect, the common law in Australia, as modified by the Constitution and by the statute law in force in the State in which the Court in which the jurisdiction is exercised is held, so far as it is applicable and not inconsistent with the laws of the Commonwealth, governs all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil matters.
- The UCPR and s 81 of the Supreme Court of Queensland Act, which enable parties to be joined and amendments to be made after limitation periods have expired, are procedural in nature. The question is whether the Commonwealth legislation “otherwise provided”[24] so as to exclude the application of the Queensland provisions. The test is whether the Commonwealth legislation is irreconcilable with the State provisions.
- Section 82(2) of the Act is located in a part of the Act separate from those which allow the rights of action. It has not “otherwise provided” for matters relating to amendment either within or beyond the limitation period. Section 82(2) is a provision which bars a cause of action rather than extinguishes a right of action.[25]
- Accordingly, the UCPR and s 81 of the Supreme Court of Queensland Act 1991 are not irreconcilable with Commonwealth law.
- The Court of Appeal in Victoria reached a similar conclusion a few months earlier in PSL Industries Ltd v Simplot Australia Pty Ltd.[26] That was a case in which leave had been given to a respondent to amend its pleadings to allege breaches of s 52 and s 59(2) of the Act in circumstances where the cause of action arising out of such breaches had accrued outside the period limited by s 82(2) of the Act. Chernov JA, with whose reasons the other members of the Court agreed, concluded that:
- in dealing with the matters concerning alleged breaches of the provisions of the Act, the court at first instance was exercising federal jurisdiction pursuant to s 39(2) of the Judiciary Act;
- s 79 of the Judiciary Act operated to apply the Victorian procedural provisions (as surrogate laws of the Commonwealth); and
- s 82(2) of the Act only bars the relevant remedy but does not extinguish the right and thus leaves room for the operation of the Victorian provisions
- There was thus no relevant irreconcilability for the purposes of s 79 of the Judiciary Act. Having regard to the terms of s 79 of the Judiciary Act, s 82(2) does not provide “otherwise” to the relevant State laws.
- In Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield, the High Court was concerned with the construction of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Carriers’ Act”) which imposed liability in respect of the death of a passenger in an aircraft. Under s 35(2) the liability of a carrier in respect of such death was expressed to be “…in substitution for any civil liability of a carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted from the death of the passenger”.[27]
- Section 34 of the Act provided:
“The right of a person to damages under this Part is extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination;
(a) the date on which the aircraft ought to have arrived at the destination; or
(b) the date on which the carriage stopped;
whichever is the later.”
- One of the questions for determination was whether, by operation of s 79 of the Judiciary Act, s 34(1) of the Limitation of Actions Act 1958 (Vic) permitted the subject proceedings notwithstanding that the action was brought outside the two year period limited by s 34 of the Carriers’ Act. Section 34(1) of the Victorian Act permitted a court to allow an amendment to proceedings notwithstanding the expiry of a limitation period in prescribed circumstances. The conclusion of the members of the court, other than Kirby J, are to be found in the following passages from the joint judgment:
“The terms of s 79 indicate that this can only be so [whether s 34 of the Victorian provision is given binding effect by s 79] if the case in question is one in which the State law is applicable. Section 34 of the Carriers' Act, as indicated earlier in these reasons, is an integral part of the federal statutory right to damages. Section 34 is not a provision which adds a time limitation in respect of a right defined independently of s 34. Section 28 which creates the statutory right expressly does so ‘[s]ubject to this Part’ and thus to s 34. It follows that, if an action was not brought by Mrs Hatfield or for her benefit within the two year period required by s 34, what ensued was not the expiry of a relevant period of limitation, but the removal of a prerequisite for the existence of the right sought to be litigated. In those circumstances, s 79 did not operate to "pick up" the Victorian provision.
The same conclusion may be reached by another route. Were s 34 of the State statute to be picked up by s 79, it would provide otherwise than as required by s 34 of the Carriers' Act. It would have ‘derogated from’ the extinction wrought by s 34 of the federal statute.”
- It may be seen from the foregoing that in Agtrack the High Court was considering a statutory provision substantially different from s 82(2). Section 34 of the Carriers’ Act expressly provided that the right of action was “extinguished” at the expiration of the limitation period. That is not the case with s 82(2) and there is nothing in the reasons of Agtrack or in Air Link Pty Ltd v Paterson,[28] the other decisions upon which the respondents rely, which casts doubt on the authority of the Court of Appeal decisions discussed above. Until expressly or implicitly overruled by the High Court, the decision in Ramsay is binding on me.
Conclusion
- The joinder sought is within the scope of Rule 69(2) of the UCPR. It is doubtful the proceeding was started against the name of the right person as a party and for the above reasons joinder of resources is appropriate. The rule operates notwithstanding s 82(2) of the Act.
- It will be ordered that Interline Resources Inc be joined in the proceedings as the second defendant by counterclaim. The action against it is deemed to have commenced with the filing of the applicants’ claim and statement of claim filed on 26 March 2001.
Footnotes
[1] MAM Mortgages Ltd (in liq) v Cameron Bros (a firm) [2002] QCA 330 at [31].
[2] (1991) 173 CLR 231.
[3] O 20 r 5.
[4] O 32 r 1(3).
[5] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] 173 CLR 231 at 261.
[6] Ibid at 260.
[7] Ibid at 259.
[8] Ibid at 260, 261.
[9] See e.g. Gray v Morris [2004] QCA 5 para [36].
[10] Wrightson v Queensland [2005] QCA 367 per McMurdo P at [10].
[11] Section 32C.
[12] See the discussion of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 by Jerrard JA in Limpus v State of Queensland & Ors [2003] QCA 563 at [14]-[22].
[13] Bird v HTW Valuers (Brisbane) [2004] QSC 234 at [5].
[14] [1939] 4 All ER 116.
[15] (1990) 94 ALR 679.
[16] [2001] QSC 83 at [20].
[17] [2002] QCA 330 at [29].
[18] Refer r 63 UCPR but contrast r 64.
[19] [2004] 1 Qd R 667.
[20] (2005) 218 ALR 677 at 690-691.
[21] (2005) 218 ALR 700 at 703, 721 and 731.
[22] At relevant times, the limitation period in s 82 of the Act was three years.
[23] (1992) 175 CLR 514.
[24] See the Judiciary Act 1903 (Cth) s 79.
[25] Her Honour cited with approval a passage from the reasons of Chernov JA in PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 7 VR 106.
[26] Ibid.
[27] At 682.
[28] (2005) 218 ALR 700.