Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 3 – Parties and Proceedings
- Part 1--Several causes of action and parties in a proceeding
- [60] Inclusion of several causes of action in a proceeding
- [61] Application of div 2
- [62] Necessary parties
- [63] Joint entitlement
- [64] Joint or several liability
- [65] Inclusion of multiple parties in a proceeding
- [66] Identical interest in relief unnecessary
- [67] Parties incorrectly included or not included
- [68] Inconvenient inclusion of cause of action or party
- [69] Including, substituting or removing party
- [70] Procedure for inclusion of party
- [71] Defendant or respondent dead at start of proceeding
- [72] Party becomes bankrupt, person with impaired capacity or dies during proceeding
- [73] No substitution order after death of plaintiff or applicant
- [74] Amendment of proceedings after change of party
- [75] Representative party
- [76] Order for representation
- [77] Enforcement of order against representative party
- Division 1--Several causes of action
- Division 2--Several parties
- Division 3--Reconstitution of proceeding
- Division 4--Representative party
Division 1--Several causes of action
[60] Inclusion of several causes of action in a proceeding go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2--Several parties
[61] Application of div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[62] Necessary parties go to top
Rule 62 of the UCPR must be applied by considering whether, in the absence of the party proposed to be joined, the matters in dispute in the existing proceeding could be effectually and completely adjudicated: Strudwick v Selby [1999] QDC 280, p. 7 (McGill DCJ), citing FAI General Insurance Co Ltd v Interchase Corporation Ltd [2000] 2 Qd R 301.
If a person does not seek to be joined as a plaintiff, or consent to being so joined, then in accordance with longstanding principle, that person cannot be joined as a plaintiff. This is consistent with the terms of rr 62, 63, 67 and 69: Moore v Devanjul Pty Ltd (No 3) [2012] QSC 355, [31]-[32] (McMeekin J).
[63] Joint entitlement go to top
Despite the terms of r 63, r 67 provides that the Court may decide a proceeding even if a person is not included as a party and may deal with the proceeding as it affects the rights of the parties before it. This means that while ordinarily all persons who are jointly entitled to the relief sought by a plaintiff must be parties to the proceeding (a long standing rule, confirmed in r 63) the general rule is now that no proceeding is dismissed for want of parties: Moore v Devanjul Pty Ltd as Trustee [2010] QSC 250, [7] (McMurdo J); BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008] QSC 141, [229] (McMurdo J) (in both of these cases, his Honour cited Equus Financial Services Ltd v Glengallon Investments Pty Ltd [1994] QCA 157 per McPherson JA: his Honour himself citing William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454 at 462).
[64] Joint or several liability go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[65] Inclusion of multiple parties in a proceeding go to top
Rule 65 does not permit more than one statutory demand to be joined to an application to set aside a statutory demand made pursuant to s 459G of the Corporations Act 2001: Ambassador at Redcliffe Pty Ltd v Emerald Constructions Aust Pty Ltd [2007] 2 Qd R 199, [13] (Douglas J).
The following principles were decided in respect of the former rule relating to joinder, found in Order 3 rr 1 and 5 of the Supreme Court Rules. These principles may assist in informing the Court as to the exercise of discretion under r 64:
- Leave ought not be granted unless the Court is satisfied that joinder is unlikely to result in unfairness to any party: Hagan v Bank of Melbourne Ltd [1994] 2 Qd R 507, 509 (Ryan J), citing Wilcox J in Bishop v Bridgelands Securities (1990) 25 FCR 311, 314-315;
- Two discrete contracts are not to be characterised as being in the same series of transactions simply because they share the characteristic of being subcontracts with the same contractor: North Pine Pty Ltd v Jezer Construction Group Pty Ltd [1997] 2 Qd R 253, 262 (Helman J);
- While the rule permits the joinder of one or more plaintiffs, it does not require it. Plaintiffs with separate claims against the same defendant, although represented by the same solicitor, are not obliged to sue in one proceeding; separate actions may be commenced: Ariadne Properties Ltd v Russell [1989] 1 Qd R 491, 497 (Senior Master Lee).
[66] Identical interest in relief unnecessary go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[67] Parties incorrectly included or not included go to top
Despite the terms of r 63, r 67 provides that the Court may decide a proceeding even if a person is not included as a party and may decide a proceeding even if a person is not included as a party and may deal with the proceeding as it affects the rights of the parties before it. This means that, while ordinarily all persons who are jointly entitled to the relief sought by a plaintiff must be parties to the proceeding (a long standing rule, confirmed in r 63) the general rule is now that no proceeding is dismissed for want of parties: Moore v Devanjul Pty Ltd as Trustee [2010] QSC 250, [7] (McMurdo J) and BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008] QSC 141, [229] (McMurdo J) (in both of these cases, his Honour cited Equus Financial Services Ltd v Glengallon Investments Pty Ltd [1994] QCA 157 per McPherson JA: his Honour himself citing William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454 at 462).
Division 3--Reconstitution of proceeding
[68] Inconvenient inclusion of cause of action or party go to top
A case will be made out for an order that there be separate proceedings, if causes of action sought to be advanced by a plaintiff against more than one defendant are sufficiently disparate that they ought not be dealt with together: Balson v State of Queensland [2003] QSC 42, [20] (Mackenzie J).
In Day v Markfair Pty Ltd [2004] QDC 34, McGill J (at [20]) considered the following passage taken from the decision of Wilcox J in Bishop v Bridgelands Securities (1990) 25 FCR 311, 314 (cited with approval by Ryan J in Hagan v Bank of Melbourne Ltd [1994] 2 Qd R 507) to provide useful guidance as to the exercise of discretion for the purpose of r 68:
“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 cost and delay may often support the grant of leave [to join]; but, in my opinion, leave ought not to be granted unless the court is affirmatively satisfied that joinder is unlikely to result in the 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 are represented by different solicitors. … Similarly, although all applicants might propose to rely on 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 a joinder is permitted, will impose an undue burden on the respondent.”
[69] Including, substituting or removing party go to top
Rule 69(1)
The discretion given by r 69 is a broad one and is not dependent on an applicant demonstrating special or peculiar circumstances: Limpus v Queensland [2003] QSC 93, [12] (Mackenzie J), see also Jerome v Hill [2000] QSC 91; [2001] 1 Qd R 496; Bates v Queensland Newspapers Pty Ltd [2001] QSC 83.
The discretion conferred by r 69 should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice. It should not be approached as if it were intended to restrict the availability of the common law right of a person likely to be affected by a decision to be heard in relation to that decision: Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467, 470 (Keane JA, Williams JA and McMurdo J agreeing), referring with approval to Kioa v West (1985) 159 CLR 550, 582 (Mason J).
Because an application for joinder under r 69 requires the exercise of discretion by the Court, the merits of the case proposed to be advanced after joinder is a relevant consideration at least where there are significant doubts concerning its prospects of success: Kestrel Coal Pty Ltd v Longwall Roof Supports Ltd [2003] QSC 187, [16] (Muir J). Where the area of law may be said to be evolving, the appropriateness of the joinder should be determined more by reference to general principles than by a detailed analysis of the pleaded allegations: Kinsella v Gold Coast City Council (No 3) [2016] QSC 14, [14] (Burns J), citing Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102, [27] (Muir JA White JA and P Lyons J agreeing).
The fact that the plaintiffs are faced with a defence by which it is alleged that third parties were, in substance, concurrent wrongdoers does not, without more, provide a sufficient basis for the exercise of the court’s discretion to join those parties. This is because, regardless of what another party has pleaded against an applicant for such relief, it is still necessary for that applicant to demonstrate the existence of an arguable case, and one that is sufficient to resist the entry of summary judgment by the party sought to be joined. That means that joinder should only be refused where the proposed claim is “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “so manifestly faulty that it does not admit of argument”: Kinsella v Gold Coast City Council (No 3) [2016] QSC 14, [13] (Burns J), citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128 – 129 (Barwick CJ).
The power granted by r 69(1)(b) to include a party at any stage of a proceeding is limited by r 69(2) which precludes parties from being included or substituted after the end of a limitation period unless certain circumstances apply: Limpus v State of Queensland [2004] 2 Qd R 161, [14] (Jerrard JA, Dutney J and Philippides J agreeing).
Rule 69(1)(b)(i)
Whether a person’s presence is “necessary” in the sense contemplated by r 69(1)(b)(i) requires a consideration of whether that person’s rights against, or liabilities to, any existing party in respect of a matter in dispute in the proceeding will be directly affected by any order which the court might make: Kinsella v Gold Coast City Council (No 3) [2016] QSC 14, [8] (Burns J), citing Macquarie Bank Limited v Lin [2002] 2 Qd R 188, [14] (Holmes J).
The only relevant enquiry with respect to the joinder of an insurer of a party to a proceeding is whether the insurer has been given due notice of the proposed claim, or if not, whether the joinder should be made despite this lack of notice: De Innocentis v Brisbane City Council [2000] 2 Qd R 349, 357 [35] (Chesterman J, Thomas JA and Pincus JA agreeing).
There is no general proposition that having taken shares with notice of a derivative action, a shareholder must be barred from that litigation: Zabusky v Virgtel Ltd [2013] 1 Qd R 285; [2012] QCA 107, [59] (Holmes and Chesterman JJA, Peter Lyons J agreeing).
The power to add a defendant under r 69 cannot be relied on to dispense with compliance by the plaintiff with the pre-court procedures under the Personal Injuries Proceeding Act 2002 (PIPA) in respect of the proposed additional defendant. The remedial purpose of r 69 does not displace the mandatory requirements imposed by PIPA in respect of a claim by a plaintiff that is regulated by PIPA: Etemovic v Baulderstone Hornibrook Qld Pty Ltd [2010] QSC 141, [27] (Mullins J).
In Macquarie Bank Limited v Lin [2002] 2 Qd R 188 [15], [20], [27] Holmes J considered that joinder was necessary for the purpose of r 69(1)(b)(i) in circumstances where the joinder would serve a useful purpose by providing a proper contradictor, and it was arguable that a right of the applicant to enjoin the second respondent from disposing of the property might be directly affected by an order which might be made in the proceeding.
Where the right to a debt has been validly assigned by a plaintiff to an assignee, the assignee may be substituted for the plaintiff by order under Rule 69(1)(b)(i): The Trust Company (PTAL) Limited v Amos [2018] QSC 92 (Brown J) at [21]-[22].
Rule 69(1)(b)(ii)
In Interchase Corp Ltd (in liq) v FAI General Insurance Co Ltd [2000] 2 Qd R 301, it was said both by McPherson JA (at 312) and by Byrne J (at 316) that convenience alone cannot justify joinder. However, r 69(1)(b)(ii) is now worded differently from the provisions of O 3, r 11 that were considered there. It is sufficient now if it is desirable, just and convenient to enable the court to adjudicate on all matters that are in dispute not only in the proceedings but connected with it: MAM Mortgages (in liq) v Cameron Bros (a firm) [2002] QCA 330, [27] (McPherson JA, Jerrard JA and White J agreeing).
Under r 69(1)(b)(ii), a person may be included as a party where it is “desirable, just and convenient” to do so to enable the court to adjudicate on all matters that are in dispute in the proceeding and, further, to adjudicate effectively and completely on all matters that are connected with the proceeding: Kinsella v Gold Coast City Council (No 3) [2016] QSC 14, [8] (Burns J), citing MAM Mortgages (in liq) v Cameron Bros (a firm) [2002] QCA 330, [27].
An explanation for the failure to join a party within the limitation period is always a relevant factor, but not a precondition, to the power to order a joinder: Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] 2 Qd R 454, [28] (Muir J).
It is not necessary for a plaintiff to show that he or she has a good cause of action against the additional defendant, or even that he or she has a prima facie case against the proposed party when applying for joinder under r 69(1)(b)(ii). It is necessary only to show the pleading of a good cause of action against the defendant and that the application comes within sub-rule 69(1)(b)(ii): Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140, [6] (Helman J, citing McGill DCJ in Cooper v Dexter [2003] QDC 31, [26]).
On an application of this nature, an applicant should support its application by providing the court with a draft of the pleading which it proposes to file if the order is granted: Godden v State of Queensland [2018] QSC 18 (Martin J) at [18].
A plaintiff who is suing a potentially impecunious defendant, may be entitled to join the defendant’s insurer to seek declaratory relief concerning the liability of the insurer to indemnify the defendant: Godden v State of Queensland [2018] QSC 18 (Martin J) at [39]-[54].
In the context of a challenge to an administrative decision, it is “desirable, just and convenient” within the meaning of r 69(1)(b)(ii) to grant an application for joinder in circumstances in which considerations of natural justice and the benefit to the court of hearing the argument from the party interested in maintaining the decision under attack support that conclusion: Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467, 470 (Keane JA, Williams JA and McMurdo J agreeing).
In deciding whether to join a party under r 69(1)(b)(ii) on the application of the defendant, the Court must balance two competing considerations:
(a) the desirability of avoiding multiple proceedings, excessive costs and the possibility of divergent findings in separate proceedings traversing the same subject matter; and
(b) t he interest of the plaintiff in being allowed to prosecute its action and obtain judgment without being delayed or inconvenienced by the defendant’s endeavours to obtain a remedy against a further party: Stacks Managed Investments Limited v Tolteca Pty Ltd; Tolteca Pty Ltd v Lillas & Loel Lawyers Pty Ltd [2015] QSC 80, [22] (Bond J).
Interaction between rules 69(1)(b) and 69(2)
A new plaintiff seeking to be joined to a proceeding who falls within r 69(1)(b) should be shut out from being joined only to those causes of action that have expired. Rule 69(2) is not concerned to deny the joinder of a party whose relevant cause of action is not adversely affected by the end of the limitation period applicable to that cause of action: Althaus v Australia Meat Holdings [2007] 1 Qd R 493, 499-500, [26]-[32] (Keane JA, McMurdo P and Holmes JA agreeing).
Interaction between rules 69(1) and 74(5)
Where a person is included or substituted as a party to a proceeding pursuant to r 69(1)(a) and 69(1)(b)(i), the proceeding by the new party is taken to have started at the time when the original proceeding started pursuant to r 74(5), unless the court orders otherwise: Re Jackaroo Agencies Pty Ltd [2006] 1 Qd R 332, [20] (White J).
Where an amendment is sought to substitute the correct party in an application to set aside a statutory demand under s 459G of the Corporations Act 2001 (Cth) in order to remedy a genuine error, either by editorial mistake or a misunderstanding, about the identity of the correct party and where the other party has not been misled, the amendment should take effect from the time when the application to set aside the statutory demand was originally filed: Re Jackaroo Agencies Pty Ltd [2006] 1 Qd R 332, [20], [23] (White J).
Rule 69(2)
The prohibition in r 69(2) is concerned to prevent joinder or substitution of a party in respect of a particular cause of action vested in that party for which the limitation period has ended: Althaus v Australian Meat Holdings Pty Ltd [2007] 1 Qd R 493, [23], [25] (Keane JA, McMurdo P and Holmes JA agreeing).
Limitation periods are important and ought not lightly be overruled. The considerations identified by the High Court in Brisbane State Regional Health Authority v Taylor (1996) 186 CLR 541 as to the prejudice to a fair trial inherent with the passage of time are relevant to the question of whether or not in the exercise of discretion new parties should be joined, and if so, on what terms. Shortly stated those considerations are: “First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive to a defendant to allow an action to be bought long after the circumstances giving rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them once the limitation period has expired”: Montgomery v Pickard [2007] QCA 203, [34] (Williams JA, Jerrard JA agreeing).
After the expiration of the time limit in s 588FF(3) of the Corporations Act 2001 (Cth), the Court has no power under r 69 of the UCPR to order the joinder of an additional defendant to an action under s 588FF(1): Tagoori Pty Ltd (in liq) v Lee [2001] 2 Qd R 98, 99 (Williams J).
Rules 69(1)(b) and 69(2) of the UCPR and s 81 of the Supreme Court of Queensland Act 1991 (now s 16 of the Civil Proceedings Act 2011) are not irreconcilable with Commonwealth law and accordingly become surrogate Commonwealth law for a cause of action based on the Trade Practices Act 1974: Ramsay v McElroy [2004] 1 Qd R 667, 677 (White J, de Jersey CJ and Atkinson J agreeing).
Rule 69(2)(a)
Rule 69(2)(a) assumes that if r 69(2)(a)(iii) is satisfied because the proceeding was started against the name of a wrong person as a party, then the right person or “new” party is a necessary party to the proceedings: MAM Mortgages Ltd (in liq) v Cameron Bros (a firm) [2002] QCA 330, [31] (McPherson JA, Jerrard JA and White J).
Rule 69(2) is remedial and is to be construed accordingly. Rules 69(2)(a)(iii) and 69(2)(a)(iv) do not operate only in the case of a mistake in the name of a party: Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] 2 Qd R 454, [17]-[18] (Muir J).
Rule 69(2)(a)(iv) may operate in circumstances where there remains a good cause of action against an initial defendant, who is to remain a defendant in the proceeding: Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] 2 Qd R 454, [21] (Muir J).
The requirement for an affidavit to be filed in support of an application
The requirement that there be an affidavit in support of an application under r 69 is not a mere technical requirement that can be excused under r 377. When an application is made in reliance on this rule, in the ordinary course, an affidavit in support should be provided: Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd [2015] QSC 19, [17] (Douglas J).
[70] Procedure for inclusion of party go to top
Where there is not just an application to amend a misnomer of an existing party, but one which can be characterised also as one to include a new party, then, in the ordinary course, an applicant seeking the exercise of the Court’s discretion under r 70 should provide an affidavit in support of the application addressing the matters identified in the rule and a failure to do so ought not be excused under r 377: Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd [2015] QSC 19, [17] (Douglas J).
[71] Defendant or respondent dead at start of proceeding go to top
Where compensation is sought by a victim of crime where the offender is deceased and a grant of representation has not been made, the Public Trustee may have a distinct interest in whether an order should be made which binds the deceased’s estate (see r 62(2)). Therefore, prima facie, the Public Trustee would effectively be the deceased’s personal representative and should be named as a respondent pursuant to r 71(3): Stewart v Woods [2002] QSC 164, [13] (Fryberg J).
[72] Party becomes bankrupt, person with impaired capacity or dies during proceeding go to top
To the extent that r 72, in permitting a person to “take any further step in the proceeding” once the Queensland court has given leave, is inconsistent with the requirement in s 58(3) of the Bankruptcy Act 1966 (Cth) that “it is not competent for a creditor … to take any fresh step” in respect of a provable debt except with the leave of the Federal Court or the Federal Magistrates Court, the latter requirement must prevail: [2007] 234 CLR 52, [128] (Gleeson CJ, Gummow, Hayne and Crennan JJ).
The provisions of r 72 are subject to the Bankruptcy Act 1966 (Cth), under which, on bankruptcy, the cause of action underlying the relevant claim is vested in the trustees in bankruptcy. While that remains so, r 72 does not empower the Court to give the bankrupt leave to proceed with the claim without the trustees’ consent: Beames v Queensland [2010] QSC 4, [18] (Margaret Wilson J); Quazer v Secure Funding Pty Ltd [2010] QCA 251, [27] (McMurdo P, White JA and Applegarth J agreeing); Wilson v State of Queensland [2015] QSC 56, p.5 (Jackson J).
Where a person being sued becomes bankrupt, but the proceedings are not affected by s 58 of the Bankruptcy Act 1966 (Cth), then a failure to obtain leave under r 72 is merely an irregularity and does not render further proceedings a nullity: Featherstone v Ashala Model Agency Pty Ltd (in liq) [2017] QCA 260 at [100], [248].
As to the meaning of “impaired capacity” in r 72(1), in Thomson v Smith [2005] QCA 446, Muir J (with whom McPherson J agreed, applied by Margaret Wilson J in Plumley v Moroney [2014] QSC 3), said:
“[132] The concept of ‘impaired capacity’ concerns a person’s ability to make decisions which must be made in the course of litigation. The existence of a condition or character trait which affects the quality or timeliness of such decisions would not establish ‘impaired capacity’ unless its extent was so gross as to compel the conclusion that the person was relevantly incapacitated. Imprudence or defective judgment, even if resulting from an obsession about the litigation or some aspect of it, normally would not constitute ‘impaired capacity’.”’
[73] No substitution order after death of plaintiff or applicant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[74] Amendment of proceedings after change of party go to top
Rule 74(5) is intended to create an exception to the general rule in r 74(4), which is that the proceeding against the new defendant starts on the filing of the amended copy of the originating process. The exception engrafted by r 74(5) on to that general rule is that, for the purposes of a limitation period, the proceeding against the new defendant is regarded as having started when the proceeding against the original defendant was started, unless the court otherwise orders: MAM Mortgagees Ltd (In liq) v Cameron Bros (a firm); Piesse Investments Pty Ltd v WR Mortgage Services Pty Ltd [2002] QCA 330, [34] (McPherson JA, Jerrard JA and White J agreeing).
The expression “limitation period” in r 74(5) is defined to mean a limitation period under the Limitation of Actions Act 1974 (Qld). The rule does not empower the court to add a party outside a limitation period provided for by a Commonwealth law: Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17, 35 (Williams JA).
Division 4--Representative party
[75] Representative party go to top
Rule 75 does not require the prior approval of the Court for the appointment of a representative defendant. It permits, of its own terms, a proceeding to be started and continued against one or more persons who have the same interest in the subject matter of the proceeding as all such persons who could have been parties to the proceeding: Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655, [16] (Mackenzie J).
Rule 75 is expressed in broad terms. It is to be interpreted in light of the obvious purpose of the rule, namely, to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions: Kinsella v Gold Coast City Council [2015] 1 Qd R 274; [2014] QSC 65, [28] (McMurdo J), citing a passage from the judgment of Mason CJ, Deane and Dawson JJ in Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, 404.
Where a proceeding is brought by a plaintiff in a representative capacity, pursuant to r 75, the represented persons do not become parties to the proceedings. However, they become bound by the judgment because s 18(2) of the Civil Proceedings Act 2011 (Qld) provides that unless the court otherwise orders, an order in such a proceeding binds the persons who have the same interest as the representative party and who could have been parties to the proceeding: Kinsella v Gold Coast City Council [2015] 1 Qd R 274; [2014] QSC 65, [27] (McMurdo J).
An applicant commencing a proceeding against a representative respondent must define, with sufficient particularity, the class that is said to have the same interest in the subject matter of the proceeding: Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655, [24]-[25] (Mackenzie J, applying Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, 422).
For a matter to proceed as a representative action pursuant to rule 75 the following two conditions must be satisfied:
- First, members of the class must share the ‘same interest’ in the subject matter of the proceeding (the “common issue”). However this requirement this does not prohibit representative actions where all parties do not share the same cause of action or where not every issue of law or fact is common to the parties;
- Second, through the relief claimed, an order must be capable of being made which would bind all members of the represented class, not just parties to the proceeding (the “common relief”).
However, neither the first nor the second condition require complete unanimity amongst all members of the represented class and the quantum awardable to individual class members may differ: Kinsella v Gold Coast City Council [2015] 1 Qd R 274; [2014] QSC 65, [28]-[36] (McMurdo J), referring to the two decisions of the High Court in Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 and Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386.
The procedure under r 75 is a descendant of the representative action developed in the Court of Chancery whereby such an action could be brought even though some of those said to share an interest with the plaintiff knew nothing of the action, or were even opposed to it being brought: [2011] 87 ACSR 214 [2011] QSC 413, [14] (Martin J), citing Hancock v Scattergood [1955] SASR 1, 20 and Burns Philp & Co Ltd v Baghat [1993] 1 VR 203, 222.
If there is an issue to be raised as to the appropriateness of having a representative plaintiff or applicant it should be resolved at the earliest possible opportunity: Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655, [17] (Mackenzie J); [2011] 87 ACSR 214 [2011] QSC 413, [14] (Martin J).
If a party previously agrees to be represented by another party in a proceeding, they are free to subsequently revoke their consent or instructions and participate in the proceeding in another capacity or not at all: [2004] 209 ALR 106 [2004] QCA 269, [11] (McPherson J, Williams JA and Jerrard JA agreeing).
[76] Order for representation go to top
On a proper construction of rr 75 and 76 a plaintiff does not require approval of the Court before commencing an action against a representative defendant: Minister for Industrial Development v Taubenfeld [2003] 2 Qd R 655, [17] (Mackenzie J).
[77] Enforcement of order against representative party go to top
The effect of r 77(1) together with s 18(3) of the Civil Proceedings Act 2011 (Qld) is that an order made by the court in a representative proceeding commenced in reliance on r 75 of the rules can only be enforced by a person not named as a party with the court’s leave: Kinsella v Gold Coast City Council [2015] 1 Qd R 274; [2014] QSC 65, [27] (McMurdo J).
[78] Consolidation of proceedings go to top
The object of the consolidation of proceedings is to have the one court determine all proceedings. In part, this object is designed to avoid the possibility of different findings on the same issues of fact canvassed in separate proceedings; such a result reflects adversely on the system of the administration of justice: Pacific Century Productions Pty Ltd v Taylors Contracting Services Pty Ltd[2003] QSC 289, [24] (Ambrose J), citing Todd v Jones [1969] VR 169, 171.
As a general principle actions will be consolidated if the claims properly made in different actions could have been made in the one action and the parties to the separate actions will not suffer prejudice: Pacific Century Productions Pty Ltd v Taylors Contracting Services Pty Ltd [2003] QSC 289, [25], [28] (Ambrose J).
To the extent that trials being heard together might involve a party attending the trial for a period of time during which issues in which that party has no interest are canvassed, it will be open for it to seek leave not to attend the hearing during that period of time: Pacific Century Productions Pty Ltd v Taylors Contracting Services Pty Ltd [2003] QSC 289, [32] (Ambrose J).
If proceedings are at very different stages, that would provide a good reason not to consolidate those proceedings, but instead order that proceedings be heard together. If proceedings are heard together, it guards against there being two hearings as to the same issues and the risk of inconsistent findings: Rodgers Family Investments Pty Ltd v Australia and New Zealand Banking Group Ltd [2008] QSC 85, [40]-[42] (McMeekin J).
Consideration should first be directed to the relationship between two or more separate proceedings. If that relationship is as described in either rr 78(a) or 78(b), then a discretion will arise. It is not relevant whether, after consolidation, the decision in one proceeding would affect the other proceeding: Stacks Managed Investments Limited v Tolteca Pty Ltd; Tolteca Pty Ltd v Lillas & Loel Lawyers Pty Ltd [2015] QSC 80, [35]-[36] (Bond J).
Rule 78 does not permit consolidation of matters pending in different courts. The proceedings to be consolidated must already be pending in the one court. In a case where one of a number of related matters is pending in the District Court, the Supreme Court may exercise the discretion under s 25(1) of the Civil Proceedings Act to transfer that proceeding to the Supreme Court, and so enable the consolidation of that proceeding with a related proceeding in the Supreme Court Platinum Investment Group Pty Ltd v Anderson [2018] QSC 2 (Burns J) at [37].
In general, co-plaintiffs in a consolidated action must be jointly represented by solicitor and counsel. In a proper case, an order may be made authorising separate representation, but this is rare and should only be done to avoid injustice: Cart Provider Pty Ltd v Park [2016] QSC 277 (Bond J) at [18]-[23]; Parbery v QNI Metals Pty Ltd [2018] QSC 83 (Bond J) at [12] ff.
Without a formal order for consolidation, a court may make directions for a single set of pleadings to be delivered to cover a number of related matters: Re Queensland Nickel (in liq) [2017] QSC 258 (Bond J).
[79] Sequence of hearings go to top
If proceedings are at very different stages, that would provide a good reason not to consolidate those proceedings, but instead order that proceedings be heard together. If proceedings are heard together, it guards against there being two hearings as to the same issues and the risk of inconsistent findings: Rodgers Family Investments Pty Ltd v Australia and New Zealand Banking Group Ltd [2008] QSC 85, [40]-[42] (McMeekin J).
[80] Directions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[81] Variation of order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 1--Partnerships
[82] Meaning of partnership proceeding go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[83] Proceeding in partnership name go to top
Rule 83 should not be construed as amending substantive principles of partnership law. Accordingly, the wording of r 83(1), that an action be commenced by “two or more partners”, will not bar a claim started by one partner in a partnership’s name, in exercise his or her powers under s 41(1) of the Partnership Act 1891: Queensland Southern Barramundi v Ough Properties Pty Ltd [2000] 2 Qd R 172, 173 (de Jersey CJ).
[84] Disclosure of partners names go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[85] Notice of intention to defend go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[86] Person improperly served as partner go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[87] Defence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[88] Enforcement against individual partner go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2--Business names
[89] Proceeding if registered business name go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[90] Proceeding in business name if unregistered go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[91] Notice of intention to defend go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[92] Amendment as to parties go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[93] Litigation guardian of person under a legal incapacity go to top
The rationale for the appointment of a litigation guardian for a litigant whose capacity is impaired is the protection of the litigant, the other parties and the administration of justice itself: Palmer v Chief Executive, Queensland Corrective Services Commission [2009] QCA 296, p.3 (Keane JA, Muir JA and Chesterman JA agreeing), citing L v The Human Rights and Equal Opportunity Commission (2006) 233 ALR 432, 438-439 [23]-[27].
Rule 93(1) permits a person under a legal incapacity to “start or defend” a proceeding only by a litigation guardian. The rule does not expressly deal with a case in which the legal incapacity is said to have supervened after the proceeding has been started. However, the effect of insanity is to terminate the authority of any solicitor authorised to act. In circumstances where there is a supervening legal incapacity, it might be assumed that the power to appoint a litigation guardian resides in the Court: Thomson v Smith [2005] QCA 446, [6]–[7] (McPherson JA).
The term “legal incapacity” is defined in the dictionary in Sch 5 to the Supreme Court Act 1991 as (relevantly) “a person with impaired capacity”. As to the meaning of “impaired capacity”, in Thomson v Smith [2005] QCA 446, Muir J (with whom McPherson J agreed, applied by Margaret Wilson J in Plumley v Moroney [2014] QSC 3, [30]), said at [132]:
“The concept of ‘impaired capacity’ concerns a person’s ability to make decisions which must be made in the course of litigation. The existence of a condition or character trait which affects the quality or timeliness of such decisions would not establish ‘impaired capacity’ unless its extent was so gross as to compel the conclusion that the person was relevantly incapacitated. Imprudence or defective judgment, even if resulting from an obsession about the litigation or some aspect of it, normally would not constitute ‘impaired capacity’.”
Where a person resists the conclusion that he or she is a person under a legal incapacity the evidence relied on to establish that status must be scrutinized with particular care so that there can be no suggestion that the procedure is being used to stifle proceedings which are on foot: Jelicic v Salter & St Andrew’s War Memorial Hospital [2001] QSC 68, [10] (Mackenzie J).
A litigation guardian is not authorised by r 93(2) to enter into a binding agreement on behalf of an incapacitated adult, under s 41(7)(b) of the Trustee Companies Act 1968, with a trustee company about the amount of remuneration payable to that company in its role as administrator for the adult. This is because such an agreement would relate to services to be provided after the proceeding had concluded: Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] 2 Qd R 323; [2008] QSC 49, [66] – [68] (Mullins J).
[94] Who may be a litigation guardian go to top
A proposed litigation guardian’s interests will not be adverse in circumstances where they also have an interest in ensuring that an applicant’s claim succeeds and that monies are recovered: Watkins v Christian [2009] QCA 101, [27] (Muir JA, Fraser JA and White J agreeing).
If a person wishes to bring a proceeding on behalf of an infant interested in a person’s estate, that person ought seek appointment as a litigation guardian in accordance with r 94: Pierpoint v Liston [2012] QCA 199, [48] (Margaret McMurdo P, White JA and Margaret Wilson J agreeing).
[95] Appointment of litigation guardian go to top
The term “legal incapacity” is defined in the dictionary in Sch 5 to the Supreme Court Act 1991 as (relevantly) “a person with impaired capacity”. As to the meaning of “impaired capacity”, in Thomson v Smith [2005] QCA 446, Muir J (with whom McPherson J agreed; applied by Margaret Wilson J in Plumley v Moroney [2014] QSC 3, [30]), said at [132]:
“The concept of ‘impaired capacity’ concerns a person’s ability to make decisions which must be made in the course of litigation. The existence of a condition or character trait which affects the quality or timeliness of such decisions would not establish ‘impaired capacity’ unless its extent was so gross as to compel the conclusion that the person was relevantly incapacitated. Imprudence or defective judgment, even if resulting from an obsession about the litigation or some aspect of it, normally would not constitute ‘impaired capacity’.”
Where an administrator has been appointed for a person’s financial matters under the Guardianship and Administration Act 2000 (Qld), it is not appropriate for another person to seek to act as litigation guardian by simply filing a consent under r 95: Doleman v Doleman [2017] QSC 113 (Bond J).
[96] No notice of intention to defend by person under a legal incapacity go to top
A psychological incapacity alone is not sufficient to show that a person is legally incapable within the meaning of r 96. What is required, for the purpose of the definition of that term provided in Schedule 4 of the UCPR and Schedule 2 of the Supreme Court Act 1991 (Qld), is that an applicant show on admissible material that they are not capable of making the decisions required of a litigant for conducting proceedings: Stendl Nominees Pty Ltd v Laghaifar [2003] QCA 49, p. 4 (Davies JA and Williams J, Phillipides J agreeing).
[97] Disclosure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[98] Settlements and compromises go to top
Rule 98 is procedural. The rule merely recites in a summary way the effect of the terms of s 59 of the Public Trustee Act 1978 (Qld). Rule 98(2) sets out the practice that had developed on an application for a sanction, without the benefit of the rule (per Fowler v. Gray [1982] Qd R 334, 449): Dickson v Australian Associated Motor Insurers Ltd [2010] QSC 69, [41] (Mullins J). As to the nature of that practice, see Nicotra v State of Queensland [2017] QSC 303 (Burns J) at [21]-[22]. Whilst r 98 is not directly applicable to the settlement of matters before proceedings have commenced, a similar practice is followed on an application for a sanction: Nicotra v State of Queensland [2017] QSC 303 (Burns J) at [23].
As to the principles to be applied on an application for the sanction of a compromise, see Nicotra v State of Queensland [2017] QSC 303 (Burns J) at [34]-[50].
In order for the court to determine whether a compromise is reasonable and for the benefit of the person under a legal disability, evidence should be placed before it as to the amount likely to comprise the applicant’s estate after the various external calls on the compromise sum (including statutory charges, management fees, costs and payments out for past expenses and care) have been paid. In relation to costs, it is common for safeguards concerning the assessment of costs to be included in the sanction orders. The nature of the safeguards may be fashioned to meet the circumstances of the case: Nicotra v State of Queensland [2017] QSC 303 (Burns J) at [52]-[54].
To the extent that a binding agreement creates reasonable preliminary obligations upon a person without capacity, the agreement is not a settlement declared to be invalid or ineffective by s 59 of the Public Trustee Act 1978 or r 98(1) of the UCPR: Affoo v Public Trustee of Queensland [2012] Qd R 408; [2011] QSC 309, [17] (Dalton J).
The purpose of r 98(3) is to preserve the privacy of the person who is under an incapacity. This extends to all documents referred to in r 98(2), a provision which implicitly embraces all documents necessary to enable the court to consider whether the settlement or compromise should be approved. Whilst some materials will be more private than others, the issue of disclosure by service is left to the court’s determination. This may necessitate more than one hearing, to allow the court to approve service of materials on parties who may be affected by consequential orders sought: HJO v BWO [2018] QSC 78 (Henry J) at [23]-[24].
[99] Proceedings by and against prisoners go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.