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Amending a proceeding as to add or substitute a party

If a plaintiff wishes to add/remove a party, must use r 9.06, will take effect from the date the amendment is sought. If limitation period has expired, no point r9.11(3)(a). Bridge Shipping Pty Ltd v Grand Shipping Pty Ltd R 36.1 (4) 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. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. (6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. Example of correcting a mistake in the name of a party - eg surname brown cf bronwe. Or Mistake as to name of a person. Bridge Shipping Pty Ltd v Grand Shipping Pty Ltd

Dismissal of the Plaintiffs proceedings for want of prosecution


Inherent jurisdiction, a plaintiff has to prosecute its case diligently, cant sit idly by. 24.01 Judgment on dismissal Where the plaintiff (a) being required to serve a statement of claim, fails to do so within the time limited; or (b) does not within a reasonable time after the commencement of the proceeding file and serve notice of trial or apply to have a date fixed for the trial of the proceeding; or (c) fails to file and serve notice of trial within the time allowed to the plaintiff by the Court when fixing a date for the trial of the proceeding under Rule 48.02(b) the Court may order that the proceeding be dismissed for want of prosecution.

AMENDMENT OF MISTAKES IN DOCUMENTS


Rule 36.01(1) provides that the court may at any stage of a proceeding order that any document in the proceeding be amended or that any party have leave to amend the document. The amendment may be made for the purpose of determining the real questions in controversy between the parties, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. The Rule reads:
(1) For the purpose of

(a) 1 (b) 1 (c) 1

determining the real question in controversy between the parties to any proceeding; or correcting any defect or error in any proceeding; or avoiding multiplicity of proceedings--

the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(2)

In this Order document includes originating process, an indorsement of claim on originating process and a pleading. (3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding. (4) 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. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. (6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. (7) For the purpose of paragraph (6) any other party to the proceeding includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party. (8) Paragraph (6), with any necessary modification, shall apply to an application under Rule 14.03(2). (9) Paragraph (1) shall not apply to the amendment of a judgment or order.

The general rule is that amendment of a document operates from the date of the document. The document is treated as containing the amendment from the start. Thus, for instance, upon an amendment to the claim indorsed on the writ being allowed"the writ as amended becomes the origin of the action, and the claim thereon indorsed is substituted for the claim originally indorsed": Sneade v Wotherton Barytes and Lead Mining Co Ltd Document includes originating process, an indorsement of claim on originating process and a pleading; r 36.01(2). A further power to amend is contained in Rule 9.06. Rule 9.06 gives the court the power to remove, add, or substitute a person as a party. It reads:
At any stage of a proceeding the Court may order that--

a.

any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party; b. any of the following persons be added as a party, namely

1.

a person who ought to have been joined as a party 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 1. a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

c.
applies.

a person to whom paragraph (b) applies be substituted for one to whom paragraph (a)

Under r 9.06, the court may at any stage of a proceeding order that a person be removed, added or substituted as party. Removal as

party is dealt with in r 9.06(a), which provides that the court may order that any person who is not a proper or necessary party, whether or not he or she was one originally, cease to be a party.Whether a person was originally or is now a proper or necessary party is determined in accordance with rr 9.02 and 9.03. A proceeding against a new defendant added or substituted by order made under r 9.06 or 9.08 commences upon the amendment of the filed originating process in accordance with r 9.11(1) or (2): r 9.11(3)(a). It is a rule of practice that the plaintiff will not be given leave to add or substitute a defendant after the limitation period applying to the claim against that defendant has expired. The rule is founded on the concept that to allow the addition or substitution would serve no useful purpose, in that the new defendant would, if made a party, have an unanswerable defence of time-bar. It is not founded on the concept that the addition or substitution relates back to the date of the writ, so that to allow the addition or substitution would deprive the new defendant of an accrued defence under the limitation statute; Ketteman v Hansel Properties Ltd.

Factors affecting amendment


The power of the court to allow amendments is discretionary. There is no requirement imposed on the court to allow an amendment; it is a question of what the court considers to be just in the circumstances. The discretion is unqualified. The court may allow whatever amendments are necessary in such a manner and on such terms as may be just; Etna v Arif. Bowen LJ explained the principle in Cropper v Smith:
Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rightsI know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of graceIt seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if that can be done without injustice, as anything else in the case is a matter of right.

In the earlier case of Tildesley v Harper Bramwell LJ stated his practice to be the allowance of amendments, unless the party seeking the amendment was acting in bad faith or a blunder had caused an injustice to the other party that could not be compensated by costs. A further expression of the principle is found in Abela v Giew where Taylor J stated:
If a party satisfies the court that he genuinely desires to amend his pleadings so as to modify or alter an existing claim or defence or to introduce a new claim or defence he should be permitted to do so subject to proper terms unless the proposed amendment is obviously futile or to cause substantial injustice which cannot be compensated for.

A party should be allowed to make any necessary amendment so that the merits of the controversy are submitted for the decision of the court. Terms regarding costs may be imposed as a condition of the amendment. This recognises that in allowing one party to amend pleadings, the other party was put to some unnecessary effort and incurred greater costs than would otherwise have been the case. Generally, amendments are allowed on condition that the party amending a pleading pays the extra costs caused to the other party as a result of the amendment. The intention is to compensate for the costs and delay caused by the amendment. Thus, one factor now considered is the inadequacy of a costs award to meet the actual expense incurred by the other party as a result of an amendment; J & H Manktelow Pty Ltd v Alloway Grazing Pty Ltd. Where the parties are not individuals but government or a business corporation there is lacking the personal strain that might justify the conclusion that costs are not an adequate remedy for prejudice caused by an amendment of pleadings; Queensland v J L Holdings Pty Ltd. The House of Lords reassessed the principles for granting leave to amend in its decision in Ketteman v Hansel Properties Ltd. According to Lord Griffiths, allowing amendments is discretionary and the court is guided according to where justice lies. However, justice cannot always be measured in financial terms. The court may consider the strain litigation imposes on the parties, especially personal litigants, anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues. In addition, according to Lord Griffiths, the court must also weigh the pressure on the courts caused by the increase in litigation and the consequent need for the courts to conduct legal business efficiently. Lord Griffiths distinguished amendments sought before a trial begins from amendments sought at the end of a trial. Indulgence cannot be extended to the negligent conduct of litigation. Indeed, Lord Griffiths thought that sometimes justice is better served by exposing negligent lawyers to liability than by allowing an amendment at a late stage of a proceeding. There is some acknowledgment in Australian authorities that issues besides compensating the innocent party with an order for costs are relevant in deciding whether a party would suffer prejudice from the allowance of an amendment. In GSA Industries Pty Ltd v NT Gas Ltd Samuels JA agreed with Lord Griffiths' statement that in exercising its discretion the court must be conscious of the public interest in conducting litigation efficiently. His Honour discarded the notion that an order for costs could be complete compensation for the grant of an amendment or adjournment. Justice must of course be done, but, in Holcombe v Coulton McHugh JA said that he could not accept that:
[T]he interests of justice require that cases should be heard and re-heard until every conceivable factual pattern or every

conceivable legal principle of relevance that finally occurs to the parties have been litigated.

In Hobartville Stud Pty Ltd v Union Insurance Co Ltd Giles J regarded as relevant the late stage in a proceeding that an amendment was sought. Lord Griffiths made the same point in Ketteman v Hansel Properties Ltd when he said that allowing an amendment before a trial begins is different from allowing it at the end of a trial. Prejudice to persons other than the parties must be considered; United Motors Retail Ltd v Australian Guarantee Corp Ltd. The principles of promissory estoppel and waiver can also prevent an amendment. The High Court decision in Commonwealth v Verwayen demonstrates that a party may lose the ability to amend a pleading if the original pleading creates an expectation in the other party that the action will proceed as pleaded. Conduct leading to an expectation that certain matters will not be pleaded may create an estoppel. The court has an equitable discretion to prevent the party who created the expectation from resiling from it. The Court can make whatever order is necessary to prevent an injustice.

Case management - In determining whether to allow an amendment of pleadings courts today are aware of the need in the public interest to achieve finality in litigation (Ting v Blanche), and to conduct litigation efficiently by avoiding disruption in court lists and the consequent inconvenience to the court and prejudice to other litigants waiting to be heard; Ketteman v Hansel Properties Ltd. - "The public interest ... has become an increasingly significant element in the application of judicial resources. Inefficiencies in their use arising from lost and wasted time can never be compensated by costs": Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd. - Efficiency in the conduct of litigation is especially important in a controlled list where a judge in charge has set a timetable for the conduct of the litigation; GSA Industries Pty Ltd v NT Gas Ltd. - However, case management is not an end in itself. While it is an important and useful aid for ensuring the prompt and efficient disposal of litigation, and is a relevant consideration upon an application for leave to amend proceedings, it needs to be borne in mind that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim: Queensland v J L Holdings Pty Ltd. The rules and practices of the court must be used in aid of doing justice to the parties rather than become an inflexible barrier to its achievement: Howarth v Adey. However, it would be erroneous to treat Queensland v J L Holdings Pty Ltd as authority for the proposition that the justice of the case will usually require that a party be given leave to amend a pleading to include a fairly arguable claim or defence regardless of the timing of the application: Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd.

Amendment to add statute barred claims


With regard to amendment of pleadings after the expiry of the limitation period, the rule in Weldon v Neal is applicable. Under this rule, other than in exceptional circumstances, an amendment to the pleadings will be refused after the expiration of the limitation period if the effect of the amendment would be to set up a new cause of action. In Victoria, limitation legislation specifically abolishes the rule in Weldon v Neal and the court may allow an amendment to pleadings where: 1. The amendment would have been permitted except for the expiration of the relevant limitation period; and 2. The court is satisfied that no other party to the proceeding would be prejudiced by the amendment in a way that could not be met by an adjournment, an award of costs, or otherwise; s34(1) Limitations of Actions Act 1958. In accordance with the general rule that amendment of a document operates from the date of the document, a cause of action introduced by amendment will be treated as if included originally, notwithstanding that it has become time-barred since the proceeding commenced. The defendant will thus be deprived of any limitation defence which might have been available if the plaintiff had been required to raise the cause of action in a fresh proceeding; Adam v Shiavon.

Amendment of parties (mistake)


Rule 36.01(4) provides that in the exercise of the general power of the court under r 36.01(1) to order that any document in a proceeding be amended, the court may correct a mistake in the name of a party whether or not the effect is to substitute another person as party. Rule 36.01(4), in so far as it refers to the substitution of one person for another as party, deals with a matter usually governed by r 9.06. Under r 9.06 the court may at any stage of a proceeding order that a person be removed, added or substituted as party. Normally, the court will not make an order for the addition or substitution of a party where time under any limitation period applying to the claim by or against the person to be added or substituted has expired. However, r 36.01 establishes an exception to that rule of practice by authorising the substitution of another person as party after the expiry of the limitation period where the substitution is the result of the correction of a mistake in the name of a party. Rule 36.01(6) provides that notwithstanding the expiry of any relevant limitation period after the day the proceeding commenced, the court may order that a document be amended. Thus, an order may be made to correct a mistake in the name of a party the effect of which is to substitute another person as party, for, by virtue of para (4), the power of the court under para (1) to amend a document includes the power to correct such a mistake; Bridge Shipping Pty Ltd v Grand Shipping SA.

The proceeding is taken to have commenced with respect to the person substituted as party on the day the proceeding commenced: para (5).

Relation back - If an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding is taken to have commenced with respect to that person on the day the proceeding commenced: r 36.01(5). The amendment thus relates back to the date originating process was filed; Brook v Flinders University of South Australia This accords with the general rule that an amendment to a document dates, not from when the amendment is made, but from the date of the original document. - Rule 36.01(5) constitutes an exception to r 9.11(3)(a), which provides that where a person is added or substituted as defendant, the proceeding is taken to have commenced against the new party only when the filed originating process is amended. - A rule of court such as r 9.11(3)(a) affords the rationale of the modern approach in the ordinary case to adding or substituting a defendant where since the date of the writ the limitation period has expired: leave to make the change of party will be refused, not because it will relate back to the date of the writ, so that to allow the addition or substitution would deprive the new defendant of an accrued defence under the limitation statute, but because no useful purpose would be served in making defendant a person who would have an unanswerable defence of time-bar. Prejudice to new party - The power of the court to allow a document to be amended where a period of limitation has expired since the proceeding commenced cannot be exercised unless the court is satisfied that any other party to the proceeding would not, by reason of the order, be prejudiced in the conduct of his claim or defence in a way that could not fairly be met by an adjournment, an award of costs or otherwise: r 36.01(6). Change of party under r 9.06 compared - In the ordinary case, change of party by the substitution of a person as plaintiff or defendant is governed by r 9.06, not r 36.01; Lynch v Keddell (No 2). - However, r 36.01 affords some limited scope for substitution of a party. Rule 36.01(4) recognises that an order for amendment of a particular kind, namely, to correct a mistake in the name of a party, made in the exercise of the general power with respect to amendment of a document under r 36.01(1), might operate to substitute one person for another as party. - A substitution of party cannot be achieved by resort to r 36.01(4) except by an amendment that corrects a mistake in the name of a party. - Rule 36.01(4) does not allow a plaintiff to sue any person and then at a later time substitute another person for the original defendant. The right to amend is subject to three limitations: 1. First, there must be a mistake. 2. Second, the mistake must be "in the name of a party". 3. Third, the court must be satisfied that no prejudice will be caused to another party which cannot be overcome by an adjournment, an award of costs or otherwise; Bridge Shipping Pty Ltd v Grand Shipping SA. - A "mistake in the name of a party" is the key to r 36.01(4). The meaning of the expression is far from straightforward. The words are apt to describe the mistake in any of four situations outlined below. (1) Misnomer, clerical error, misdescription The first category consists of a mere case of "misnomer, misdescription, typographical or clerical error and the like": Bridge Shipping Pty Ltd v Grand Shipping SA. Amending the name Browne to Brown when the name of the party intended to be called Brown had been misspelled Browne is an example of the correction of a mere misnomer. Clearly, an actual person of the name Browne exists, but the example does not raise any question of substitution of party. Originating process, a pleading or any other document in a proceeding may be amended under r 36.01(1) to correct a misnomer; Hill & Son v Tannerhill. In Whittam v WJ Daniel & Co Ltd the word "Ltd" had been omitted from the name of the defendant company. Leave was given to insert the word, there being no other entity in existence to which the words "W J Daniel & Co" could refer. In Rainbow Spray Irrigation Pty Ltd v Hoette there was another company Rainbow Spray Sales Pty Ltd. Walsh J would have refused the plaintiff leave to change its name in the action from one company name to the other if he had decided that the effect would be to substitute parties. Instead he concluded that it was "a case of correcting an error in naming the true plaintiff". In Vulcan-Hart Corp v Vulcan Aust Ltd the party intended to be named as applicant was the relevant subsidiary company of a parent corporation. That subsidiary company was Hobart Corporation but by mistake the name Vulcan-Hart Corporation was used as applicant. The latter entity had merged into Hobart Corporation. It was held to be a case of misnomer, and an amendment of the name of the applicant was allowed. Apart from rules of court, a court has inherent power to correct a misnomer; Alexander Mountain & Co v Rumere Ltd. Even in a case of misnomer, the court has a discretion whether to allow the mistake to be corrected. It must be satisfied that the other party will not be prejudiced by the amendment: Vulcan-Hart Corp v Vulcan Aust Ltd. (2) Mistake as to name of particular identified person

In the second situation, the plaintiff mistakenly believes that a particular person, whom the plaintiff can otherwise identify, bears a certain name, for instance, where the plaintiff has named the defendant Smith when the correct name is Brown; Jiminez v Jayform Contracting Pty Ltd. Again, there is really no question of substitution of one person for another as party in the sense referred to in r 36.01(4). The court will amend the name of the defendant under r 36.01(1) and without reference to r 36.01(4). Applying the test proposed by Devlin LJ in Davies v Elsby Bros Ltd it could fairly be said that the defendant, upon reading the writ, would have believed that the plaintiff intended to make him or her defendant, but got the name wrong. (3) Mistake in selection of person meeting correct legal description Where the legal description which will entitle the plaintiff to sue or make the defendant liable to be sued has been identified correctly, but the selection of the person to fit that description is wrong, a mistake has been made in the name of a party for the purpose of r 36.01(4), and an order may be made correcting the name of the plaintiff or defendant, as the case may be, which has the effect of substituting the correct person as party: Bridge Shipping Pty Ltd v Grand Shipping SA. An example is suing the operator (as distinct from the owner) of certain machinery in circumstances where the owner could not legally be made liable and naming Smith defendant when the operator was another person, Brown. Where an order to correct a mistake in the name of a party has the effect of substituting another person as party, the proceeding is taken to have commenced with respect to that person on the day the proceeding commenced: r 36.01(4). Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff intending to sue a person he or she identified by a particular description, was mistaken as to the name of the person who answers that description: Bridge Shipping Pty Ltd v Grand Shipping SA. In Brandsma & Crockett Pty Ltd v Heindal Pty Ltd the plaintiff intended to sue an entity, a company, that had carried out a particular operation. The plaintiff identified the defendant by the wrong name. The name used was that of another related company. The plaintiff was given leave to make the necessary amendment. See also Seas Sapfor Ltd v Far Eastern Shipping Co (owner of goods damaged while carried on a vessel under a bill of lading suing carrier who was also the owner of the vessel allowed to correct mistake in name of the person made defendant as owner); Bransma & Crockett Pty Ltd v Heindal Pty Ltd (plaintiff suing company in negligence for professional advice given permitted to change the name of the defendant to that of another company of similar name); McDonald v DGJ Group Pty Ltd (plaintiff permitted to amend name of defendant to identify correctly the solicitors intended to be sued); Stiles v Permanent Trustee Aust Ltd (plaintiff partners suing in name of partnership permitted to amend so as to sue individually). (4) Mistake in legal description of proper party Where a person has been selected as party according to the wrong legal description, the mistake the correction of which will substitute another person as party is not a mistake in the name of the party for the purpose of r 36.01(4). It is a mistake as to the legal description appropriate for the selection of the person to be made party. An example is in a negligence claim, suing a person as owner not as driver of a motor car. For the purpose of r 36.01(4), in determining whether there has been a mistake in the name of a party the correction of which will have the effect of substituting another person as party, the proper distinction is between, on the one hand, the case where there has been assigned to the person made party the correct legal description, that is, a description which in law would give relief or remedy for or against the person, as the case may be, and, on the other hand, the case where the mistake consists of selecting the person made party according to the wrong legal description. Rule 36.01(4) applies in the former case but not the latter: Central Insurance Co Ltd v Seacalf Shipping Corp (The Aiolos). As McHugh J said in Bridge Shipping:
Rule 36.01(4) ... should be interpreted to cover 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.

If the plaintiff gets the description of the defendant, as opposed to the name merely, wrong, there is no mistake "in the name of the party" for the purpose of the rule: Keller v Bayside City Council.

WANT OF PROSECUTION
The defendant may apply to the court for an order dismissing an action for want of prosecution if the plaintiff fails to proceed expeditiously. Thus, want of prosecution is taken to mean a failure to proceed expeditiously. - Under r 24.01 the court has power to dismiss a proceeding for want of prosecution upon the failure of the plaintiff to serve a statement of claim or to set a proceeding down for trial within the time limited. - The power of the court to dismiss a proceeding for want of prosecution derives from 24.01 and also from its inherent jurisdiction. Rule 24.05 recognises the existence of this aspect of the inherent jurisdiction of the court. - Speaking generally, the court will not dismiss a proceeding for want of prosecution in the exercise of the inherent jurisdiction unless there has been delay on the part of the plaintiff which is inordinate and inexcusable. In most cases of application under the inherent jurisdiction, the limitation period applying to the plaintiff's cause of action has expired, so that dismissal of the proceeding will effectively prevent a further proceeding for that cause of action and thus bar the plaintiff's claim. If the limitation period has still to elapse, an order for dismissal will not ordinarily be made if there is a reasonable likelihood that were the proceeding to be dismissed the plaintiff would promptly commence another for the same cause of action. In the case of dismissal for want of prosecution under r 24.01, the power to dismiss arises simply upon the failure of the plaintiff to observe the time limit for one of the two steps mentioned, namely, service of a statement of claim and setting the proceeding down for trial. To justify dismissal, the delay of the plaintiff need not be inordinate. - Dismissal of a proceeding for want of prosecution, whether under r 24.01 or the inherent jurisdiction of the court, is no bar to the commencement of a fresh proceeding for the same cause of action. There is no finding on the merits or a judgment for the defendant, and so no basis for estoppel by res judicata. Only the expiration of the relevant limitation period would prevent a second proceeding; Magnus v National Bank of Scotland. - According to the House of Lords in Birkett v James the decision in Allen v Sir Alfred McAlpine & Sons Ltd established that it is proper to dismiss a proceeding for want of prosecution where the court is satisfied either: a. That the default of the plaintiff has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or b. That there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyer, and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the questions in the proceeding or is such as likely to cause or to have caused serious prejudice to the defendant as between himself or herself and the plaintiff or as between himself or herself and a third party. These principles were repeated by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd. They have been applied in Victoria, most recently in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells. Plaintiffs Defence - According to the test for dismissal of a proceeding for want of prosecution propounded by the House of Lords in Birkett v James prejudice to the defendant in the relevant sense will not justify dismissal of the proceeding unless the plaintiff's delay is inordinate and inexcusable. To avoid dismissal the plaintiff must give a proper explanation for the delay. There must be a credible excuse explaining the delay and justifying tolerance: Duncan v Lowenthal. Not all delay is blameworthy. Sometimes delay is essential in order to obtain justice between the parties, as where the plaintiff needs time for injuries to stabilise or to locate witnesses or other evidence. Negotiations conducted in an effort to settle the claim may excuse delay; Family Housing Association (Manchester) Ltd v Michael Hyde & Partners (a firm). Considerations - Matters to be considered in the exercise of the discretion to dismiss a proceeding for want of prosecution include: i. The length of the delay on the part of the plaintiff; ii. The explanation for the delay; iii. The hardship to the plaintiff if the proceeding were dismissed and the cause of action left statute barred; iv. The prejudice to the defendant if the proceeding is allowed to continue notwithstanding the delay; v. The conduct of the defendant in the litigation; and vi. The degree of risk that a fair trial of the questions in the proceeding will not be possible; Allen v Sir Alfred McAlpine & Sons Ltd. - In Transport Industries Insurance Co Ltd v Masel, a complex proceeding between numerous parties, the court declined to -

characterise as inexcusable delay caused by the difficulties of the plaintiff in relation to counsel, which involved "a substantial attempt to occasion initially retained counsel to attend to the matter followed by a comprehensive attempt to obtain replacement counsel". Also, the court was not prepared to disregard delay occasioned by attempts to settle the litigation. In McKenna v McKenna a reason for dismissing the plaintiff's claim for damages for bodily injury was that as 17 years had elapsed since the accident the subject of the claim, a fair trial was not possible. It is for the plaintiff and his or her legal advisers to get on with the proceeding and to see that it is brought to trial with reasonable despatch. The defendant is normally under no duty to stimulate the plaintiff into action: Allen v Sir Alfred McAlpine & Sons Ltd. "It is not for a defendant to prosecute the action and he is under no duty to stir up the sleeping dog; he is not acting improperly if he lets it lie": Duncan v Lowenthal. Nonetheless, a warning by the defendant to the plaintiff of the consequences of further delay may strengthen a claim by the defendant that justice requires that the proceeding be dismissed: Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd. A plaintiff who, after periods of inordinate delay, is given a judicial warning is thereafter under an obligation to move with special urgency: Imported Collectibles Storage And Management Pty Ltd v South British Insurance Co. The critical question is whether there was in the circumstances a substantial risk that a fair trial cannot be had because of inordinate and inexcusable delay; Spitfire Nominees Pty Ltd v Ducco. Prejudice to the defendant caused by delay as a factor relevant to the exercise of the discretion to dismiss a proceeding for want of prosecution bears two aspects. 1. The first is prejudice in the proper conduct of the defence which may be presumed or proved to follow from delay. 2. The second is the hazard of being kept at risk in respect of the subject matter of the litigation. The defendant has an interest in the reasonably prompt determination of his position, and the fact that he has been and is being kept at risk is relevant to the exercise of the discretion to dismiss as a matter distinct from prejudice in the conduct of the proceeding; Bourke v Kecskes. The onus is on the defendant to show that the proceeding should be dismissed; Tate v McLeod. Whether the court will infer prejudice from delay depends on the circumstances. All the defendant need show is an inordinate and unexplained delay, and leave it to the court to infer prejudice from the delay; McKenna v McKenna.

CROSS-VESTING
In 1988 the Commonwealth and the States and Territories enacted a scheme of legislation whereby the jurisdiction of the Federal Court of Australia and the Family Court of Australia was vested in the Supreme Courts of the States and the Territories and vice versa. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). Following the High Court of Australias decision that the legislation was unconstitutional insofar as it purported to confer state jurisdiction on federal courts (Re Wakim; Ex parte McNally), the legislation was amended so it no longer purports to confer State jurisdiction on the Federal Court or the Family Court. This scheme provides for the transfer of proceedings between Supreme Courts, between a Supreme Court of a State and a State Family Court of that State, from the Federal Court or the Family Court to a Supreme Court and between the Federal Court and the Family Court. The scheme also provides for the transfer of cases from a State or Territory Supreme Court to the Federal Court or Family Court, but only if the relevant court has jurisdiction to hear the matter. A transfer under the scheme may be made by order of the transferor court only. Thus, the legislation provides for two different schemes: A scheme of cross-vesting, whereby a court is invested with the subject matter jurisdiction of another court and may therefore hear that particular matter. Note that in this respect, the purported vesting of State jurisdiction on Federal courts has been held to be invalid. A scheme of transferring cases, where a court may order for the transfer of a case to another court if it decides that this should be done in the interests of justice. The cross-vesting legislation provides that a proceeding pending in the Supreme Court of a State or Territory shall be transferred to the Supreme Court of another State or Territory in two cases. These cases are the following: 1. Where proceedings are already pending in the other Supreme Court and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or 2. Where it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of another State or Territory.

Nature of the discretion to cross-vest - The jurisdiction to order a transfer to another participating court is generally to be exercised where the interests of justice require it or where a determination is made that another participating court is the more appropriate court to decide the proceeding; Bankinvest AG v Seabrook. - Courts proceed on the basis that a party seeking a transfer does not carry any onus of persuasion to show that the court whose jurisdiction has been properly invoked should not exercise that jurisdiction; Bankinvest AG v Seabrook. - A party applying to have proceedings transferred from one court to another does not have to demonstrate that the former court is a clearly inappropriate forum, only that the latter court is a more appropriate forum; BHP Billiton v Schultz. - In determining the interests of justice, the interests of all parties must be considered. - The interests of the plaintiff in selecting a particular forum are not, as such, to be preferred over the interests of the defendant in having the case heard in another forum; BHP Billiton v Schultz. - Considerations in determining whether to transfer include: What the most appropriate court is Bankinvest AG v Seabrook. The interests of justice - Bankinvest AG v Seabrook. The most natural forum (the court which has the most real and substantial connection to the action) Spilada per Lord Goff. Location where the wrong occurred BHP Billiton v Schultz. Residence of the parties BHP Billiton v Schultz (unless the parties live in different jurisdictions, in which case this factor bears less significance). Convenience to the parties and to the witnesses Ewins v BHP. The law governing the proceeding BHP Billiton v Schultz. Experience of a court in providing an efficient and speedy trial BHP Billiton v Schultz. The condition of the parties (e.g. health, ability to travel) Ewins v BHP. - It is not necessary to consider:

The plaintiffs choice of forum - BHP Billiton v Schultz. The location of witnesses Ewins.

JOINDER OF PARTIES
The Rules allow for permissive joinder of parties under 9.02, which has two limbs: 1. Where if separate proceedings were brought there would be (i) some common question of law or fact and (ii) the rights arise out of the same transaction; 9.02(a). The conditions in para (a) are cumulative; CE Heath Casualty & General Insurance Ltd v Pyramid Building Society. Transaction is interpreted widely it is not necessary that each of the joined causes of action arise from the whole of the transaction, nor is it necessary that each of the joined plaintiffs be seeking the same relief; Payne v Young. All matters of relevance to, or which have a connection with, the transaction which is the subject of a dispute are encompassed. The situation must be viewed as a whole, and if, when viewed as such, there is a common question among the plaintiffs arising out of that transaction, they must all join in the same action as plaintiffs; Birtles v Commonwealth. 2. Where the court, before or after the joinder, gives leave to do so; 9.02(b). Joinder is permitted in the exercise of the courts discretion only when it is just and convenient. In determining whether to permit joinder in cases where the court is requested to grant leave to join a party, the court should take whatever course seems to be most conducive to a just resolution of the dispute between the parties; Bishop v Bridgelands Securities Ltd. Matters relevant to the exercise of the courts discretion to permit joinder of parties include: a. The degree to which joinder will minimise costs and delay; b. Whether joinder would occasion unfairness to any party; c. The degree to which individual parties are relying on matters particular to them; and d. The number of joined parties; Bishop v Bridgelands Securities Ltd. The general rule is that a plaintiff cannot be joined without their consent; 9.07(1). However, where two or more parties are jointly entitled to the remedy they must be joined; 9.03(1). This is known as compulsory joinder. If the person does not consent to being joined, they must be added as a defendant; 9.03(1)(b). The court has the power to add, substitute or remove a party from proceedings under 9.06. Where substitution or addition is made, the action is taken to have commenced against the new party from the date of the amendment; 9.11(3)(a). The rule only applies where the individual is a proper and necessary party. The considerations are the same as for 9.02. The general practice of the court is to deny substitution or addition where the new party would be time-barred because of the expiry of a limitation period; Stout v RA Wenham Builders. Naming the wrong defendant does not necessarily defeat the action, as 9.06 provides for the addition and substitution of parties.

JOINDER OF CLAIMS A joinder of parties cannot be prevented simply on the ground that different causes of action are involved. The Rules expressly allow for the joinder of claims against a defendant; 9.01. - Where the joinder would be likely to embarrass or delay the trial, or cause prejudice to any party or is otherwise convenient; 9.04. This rule against joinder where it would be inconvenient applies equally to joinder of parties under 9.02. CONSOLIDATION - The court may consolidate multiple actions under 9.12 where: a. Some common question of law or fact arises in all of them; and b. The rights claimed arise out of the same transaction. - The court also has a general discretion to allow consolidation even where the above requirements are not satisfied; 9.12(1)(c). - The court will generally not order consolidation where the parties could not have been joined properly under the ordinary procedure; Bolwell v Foley. REPRESENTATIVE PROCEEDINGS

In general, where numerous persons have the same interest in any proceeding, a proceeding may be commenced by or against one or more of those persons as representative of some or all the others having that interest; 18.02. There are three requirements to establishing the requirement of same interest. There must be: 1. A common interest; 2. A common grievance; and 3. The relief must be beneficial to all parties who are represented by the party on the record; Duke of Bedford v Ellis. The question to be asked is whether or not the plaintiff and the members of the represented group have a community of interest in the determination of some substantial issue of law or fact; Carnie v Esanda Finance. The Rule is to be interpreted widely; Carnie. This is to be contrasted with the stricter English position in Markt & Co Ltd v Knight Steamship Co. A plaintiff may sue as the representative of others without a formal representation order from the court; Templeton v Leviathan Pty Ltd and 18.02. Even after representative proceedings have been commenced, a court may order that they be discontinued. A court would normally so order if it appeared that the representative proceeding would involve greater delay, expense and prejudice to the parties than alternative modes of trial; Carnie v Esanda Finance Corp Ltd. A salient consideration is whether the effect of being represented might be to expose represented parties to a risk of a representative counterclaim and thereby to a risk to which they might otherwise not be exposed; Carnie v Esanda Finance Corp Ltd.

GROUP PROCEEDINGS - Representative proceedings may also be commenced and prosecuted under Part 4A of the (VIC) Supreme Court Act 1986. It is supported by a range of procedural provisions in 18A of the Rules. Part 4A largely mollifies the harshness of the English position in Markt v Knight Steamship and seeks to clarify the position where damages are in issue (due to the fact that Carnie did not clarify the position where damages were claimed Carnie only involved declaratory relief). The constitutional validity of the Victorian legislation has been upheld; Mobil Oil Australia Pty Ltd v Victoria. - Under s 33C(1) such proceedings may be commenced only where: a. Seven or more persons have claims against the same person; b. The claims are in respect of or arise out of the same, similar or related circumstances; and c. The claims give rise to a substantial common question of fact or law. Unless the pleadings in a case demonstrate that these conditions are satisfied, such an action may not proceed; Philip Morris (Aust) Ltd v Nixon. Use may be made of representative proceedings notwithstanding that represented plaintiffs have different causes of action arising out of different transactions; Carnie v Esanda Finance. The requirement for the same interest is satisfied if the plaintiff and the members of the represented class have a community of interest in the determination of some substantial issue of law and fact; Carnie v Esanda Finance. - It is not a bar to commencing such an action that the claims arise from separate transactions between the respondent and individual group members, or that they arise from separate acts or omissions by the respondent in relation to group members; s 33C(2)(b). However, the person commencing the proceeding must at the time of commencing the action have an interest sufficient to warrant a proceeding on his or her own behalf, and the person may continue to prosecute the proceeding notwithstanding that the person subsequently ceases to have a claim against the respondent; s 33D. The consent of members of the group is not a prerequisite for their being represented, except where a possible member is the Commonwealth, a State or a Territory or a public officer or body (s 33E), but members of a group may opt out of a representative proceeding; s 33J. The opt out notice must be in Form 18AB; 18A.04. Parties who have not opted out are liable to solicitors acting for the class only in relation to such professional costs as have been advised in an authorised opt out notice; Johnson Tiles Pty Ltd v Esso Australia Ltd. - The claim may involve equitable relief, damages, damages requiring individual assessment or shared relief; s 33C. - The various claims may be based on separate contracts, transactions, acts or omissions; s 33D. - On application by the respondent or defendant, the court may order that a representative proceeding no longer continue where it is satisfied that it is in the interests of justice to do so, either on the grounds that the claims could be more efficiently or effectively prosecuted through other procedures, or that the representative procedure is otherwise inappropriate; s 33N. - An action commenced other than as a representative action cannot be reconstituted as a representative action; s 33Z. - It is not necessary for the originating process to have, or to specify, the number of group members. Section 33H provides, however, that the writ must have indorsed on it the description of the group members to whom the proceeding relates; the nature of the claims made on behalf of the group members and the relief claimed and specify the questions of law or fact common to the claims of the group members. Other than these matters, Part 4A envisages that group proceedings can be conducted even though not all members of the group have been identified or indeed, even if the number of group members is not known. - Section 33KA provides that the court has a discretion to order that a person cease to be a group member, or not become a group member. - A fund may be established to distribute the money awarded under judgment to the group members; s 33ZA.

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