welcome to laws 137 civil procedure this is topic four parties and Joiner non-compliance Amendment and time I'm Andrea Turner topic four is concerned with how parties and causes of action may be joined in one proceeding these procedures are designed to avoid multiplicity of proceedings and inconsistency of results and to promote finality in litigation in litigation we also encounter situations where parties do not comply with the rules and situations where amendment is necessary it's also important to understand how time is calculated extended and Abridged and to deal with these issues that arise in litigation the objectives for topic four involve you being able to explain the contexts of residue dearta and issues of stopple understand the issues governing Joiner of parties into claims and how parties can be added substituted and removed identify the special Joiner rules associated with certain types of parties when is it possible to consolidate proceedings and when do they need to be split you will also be able to identify the circumstances when a traditional representative proceeding is required how non-compliance is dealt with by the rules how you amend to cure mistakes in documents and parties and to take advantage of the slip rule you will also learn about the concept of want of prosecution and understand how time is reckoned extended and Abridged let's start by considering res judicata and issue of stopple res judicata and issue of stopple are important considerations in relation to the Joiner of claims and parties the failure to join a claim in a proceeding May preclude the suit of such a claim in a later proceeding the failure to join a person as a party will normally mean that a decision is made in the proceeding will not be binding upon that person The Plea of res judicata applies where a court has given judgment in relation to matters that are subject of litigation it precludes the relitigate of claims made in earlier proceedings between the same parties or persons so closely connected with the parties and their claims in respect of the same subject matter it is sometimes described as cause of ction a stopple issue a stopple on the other hand is concerned with the redetermination of a finding made in earlier litigation issue of stopple occurs where there is an essential element common to two or more sets of proceedings involving the same parties courts promote and control joinder by three processes firstly they maintain a flexible and liberal construction of Joiner of parties and causes of action rules secondly they utilize consolidation rules which seek to prevent multiplicity of proceedings or in other words multiple actions being commenced on the same issues and thirdly they make use of amendment rules to ensure that the real issue or issues between the parties are determined by the proceeding there are three other matters which also affect joinder these are limitation periods cost orders and representative or class action Provisions whereby large numbers of parties can be represented by a single party we're going to start to examine all these issues in this discussion firstly let's have a look at Joiner of parties Joiner is concerned with the decision taken by the plaintiff prior to the issue of proceedings as to who should be a party in the proceedings there is both permissive Joiner and there is mandatory or compulsory Joiner with respect to permissive Joiner multiple parties be they be a plaintiff or a defendant can be included in the one proceeding see rule 65 which specifies the CR criteria if separate proceedings were bought by or against each of them and a common question of law or fact may arise in all the proceedings all all rights to or All rights to relief sought in the proceeding whether they be joined to several or alternative rights arise out of the same transaction or event or series of transactions or events that is sufficient for permissive Joiner similarly under rule 652 two or more persons may be joined as defendants or respons respondence if there is real doubt as to the person from whom the plaintiff or applicant is entitled to relief or the respective amounts for which each may be able may be liable for damage or losses being caused to the plaintiff or applicant by more than one person whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant so that deals with permissive Joiner mandatory or compulsory Joiner is dealt with in rules 62-64 66 and 67 these rules overcome what's known as the ple abatement that that is where two or more persons were jointly liable upon a contract the failure to join one of them as a defendant released those persons joined as defendants and gave rise to a substantive defense in that defendant or defendants joint see van gelder and so be Bridge society which is 1890 um case I'll pop the citation up for you in other words it really prevented Justice from occurring in a particular case so The Plea of abatement has now been overcome by rule 62 which provides that all necessary parties must be joined rule 63 provides that all persons jointly entitled to relief must be joint a potential defendant jointly and severely liable with a defendant need not however be joint that's under rule 60 for if there is only joint liability or potential defendants they should be joined under rule 64 there's a difference between the position of joint and several liability and the position of joint liability only it is not necessary for every defendant or respondent to be interested in all the relief sort or in every cause of action included in a proceeding see rule 66 if the parties are incorrectly included or not included that does not prevent a court from deciding the outcome of a proceeding under rule 67 you can see the rules are very Broad in their application and enable all sorts of permutations and combinations with regards to the joinder of parties let's now look at the joinder of claims this can be looked at from the perspective of Joiner by plaintive and from the perspective of Joiner by the defendant such as counter claims and set offs it's only permissible for a plaintive to join several causes of action in a single proceeding under rule 60 provided that at least one of the following conditions is satisfied firstly if a separate proceeding were bought for each cause of action a common question of law or fact may arise in all the proceedings secondly All rights to relief sought in the proceeding whether joint several or in the alternative are in relation to or arise out of the same transaction or event or a series of transactions or events or thirdly the Court gives leave either before or after the start of proceedings a plaintiff must satisfy at least one of those three before it's possible for a plaintiff to include several causes of action in a single proceeding under rule 60 if there is an inconvenient inclusion of a cause of action or a party or potential delay associated with that Joiner rule 68 enables a court to order separate trials to enter a stay to award costs or to make any other appropriate order in the circumstances now let's consider joined up by the defendant in relation to counter claims and set off by counter claim a defendant may not only make a claim against plaintiff but also seek to join a third person to the counter claim a claim and counter claim would result in two separate judgments although although for the purposes of execution that is in terms of recovery there are the costs and also relation to the claim there would be a set off one amount against another and one amount would be the final sum which will be sought with respect to counter claims have a look at rules 175 through to 185 which really mirror the procedures for claims as in effect a counter claim is just a claim brought by the defendant against the plaintiff rule 184 enables judgment for the balance in respect of the competing claims of the plaintiffs and defendants in circumstances where money claims are made and the competing claim can be properly categorized as a set off cross claim in other jurisdictions or in our case in Queensland a counter claim you'll find these Concepts easier to understand once you spend some time looking at the rules let's move on to the addition substitution and removal of parties this is governed by rule 69 which permits including substituting or removing a party in terms of inclusion the following persons may be included according to rule 69 1B a person whose presence before the court is necessary to enable the court to adjudicate effectively and completely on all matters in dispute in the proceeding secondly a person whose presence before the court would be desirable just and convenient to enable the court to adjudicate effectively and completely on all matters in dispute connected with the proceeding there are quite broad Powers relating regarding the presence of particular people before court in terms of removal of a person who has been improperly or unnecessarily included as a party or who has ceased to be an appropriate or necessary party under rule 691a the court must not include or substitute a party after the end of a limitation period unless the strict requirements of rule 692 permit a court may give directions about the future conduct of the proceeding under rule 693 let's now look at dealing with particular parties starting with persons under a disability each jurisdiction has rules that require persons under a disability for example minors under the age of 18 and handicapped persons unable by themselves to conduct litigation to Sue or be sued through a litigation Guardian a litigation Guardian can be appointed under the ucpr rules 93 to 99 a person under a legal incapacity may start or defend a proceeding only by the person's litigation Guardian that's rule 931 similarly compromise of actions by or on behalf of persons under illegal disability claiming monies or damages is valid only with the sanction of the court or Public Trustee see the Public Trustee act 1978 Queensland section 59 another particular party a partners in a partnership each jurisdiction has rules to facilitate proceedings by her against Partners in the name of the firm of which they are Partners have a look at rules 82 through 88 sometimes businesses use business names and they are Partnerships a proceeding may be started against a name registered on a business names register under rule 89 or even in respect to unregistered business names under rule 19 similarly coroporation s can sue or be sued under their corporate name according to the corporations act 2001 and that's in sections 1531 and 471b they are the main peculiar or particular parties that I'd like you to be aware of the next item to consider is consolidation which combines several actions into one consolidation permits two or more proceedings or issues within proceedings to be tried jointly in a single Consolidated proceeding that that can be achieved under rules 78 through 81 this saves costs reduces delay and perhaps provides greater access to Justice by consolidating everything into one action another way of reducing the size of litigation is through representative proceedings these rules are derived from Equitable practice which permits a person to represent a group of plaintiffs or defendants having the same interest in the litigation and this is found in rules 75 through 77 the main rule is Rule 75 a proceeding may be started and continued by or against one or more persons who have the same interest in the subject matter of the proceeding as representing all the persons who have the same interest and could have been parties in the proceeding in their own right another example of a representative proceeding is a class action these are becoming more common in jurisdictions such as the federal court New South Wales Victoria and in Queensland and have specific class action rules the main reason is that it's a way of reducing the potential cost of litigation by having one party represent everyone instead of having large courtrooms full of council representing different people and the whole process becoming much more expensive and unmanageable a court can appoint one or more parties as a representative under rule 76 let's now move on to third party proceedings and cross claims all arising out of the action rules 191 through to 207 provide for claims by Def defendant against third parties a third party not notice commences the third party proceeding under rule 191 rule 16 through to 18 and Rule 23 which we have previously looked at apply in relation to third party notices as if the notice were a claim and the defendant making the claim were a plaintiff and the third party were a defendant so in effect it's another litigation except that what was a defendant becomes in effect a plaintiff and what was the third party in effect becomes a defendant the reasons for a third party claim are set out in rule 192 namely that a defendant May file a third party notice if the defendant wants to claim against a person who is not already a party to the proceeding a contribution or Indemnity or claim against a person not already a party to the proceeding relief relating to or connected to the original subject matter of the proceeding and substantially the same as some relief claimed by the plaintiff or requires a question or issue relating to or connected with the original subject matter of the proceeding to be decided not only just between the plaintiff and the defendant but also between either of them and a person who is not already party to the proceedings in other words the third party the various rules then set out the procedures as to the form of service a notice of intention to defend by the third party pleadings and counter flame and what have you please spend the time and work your way through those those rules and you'll see the similarity of these rules with the rules we've already discussed in previous weeks the rules enable parties to the proceedings to seek contribution or Indemnity from another party or parties and we see this in ucpr rules 206 and 208 in effect they're saying that whatever occurred is theirs as well as the responsibility of another party or parties within the same proceedings and they should therefore contribute towards the cost or provide an Indemnity for the actual potential liability so there's Provisions for contributions and indemnities what happens if there's non-compliance litigation as you know is expensive and courts through case management and other procedures are quite Keen to ensure that cases proceed efficiently non-compliance and Amendment are continual perennial issues that run counter to the effective to the efficient administration of justice because they involve change which caes a consequential flow reactions that involves time and money these issues are addressed in rules 371 373 and 374 rule 371 sets out the effect of a failure to comply with the rules after noting that a failure to comply with these rules is an an irregularity it does not render receiving a document a step taken or order made in the procceedings a nullity an irregularity doesn't turn into a nullity the court has power to set aside all or part of the proceeding or set aside a step taken in the proceeding or order made in the proceeding or declare a document or step taken to be ineffectual or declare a document or step taken to be effectual or make another order that could be made under the rules that could be in order dealing with the proceeding generally as the court considers appropriate or make such other order dealing with the proceeding generally as the court considers appropriate this is obvious going to be very much case-by casee basis as to what these the court may consider to be appropriate rule 373 prevents the court from setting aside a proceeding or originating process simply on the ground that the proceeding has been started by the incorrect originating process making a mistake in the originating process doesn't enable or empower the court to set aside a proceeding or an initiating process simply on that basis without limiting the power to punish for contempt rule 374 enables a party who is entitled to the benefit of an order by application to require the party who has not complied with the order to show cause why an order should not be made against it the court has wide powers to deal with the application you can get an order requiring somebody to comply with the rules but that doesn't put aside or limit the power of the court to punish for contempt let's now look at amendment in more detail there are general rules for amendment of documents found in rules 375 and 376 and more spe specific rules for the amendment of pleadings found in 377 rule 375 deals with the power to amend at any stage of a proceeding whereas rule 376 restricts Amendment after the expiry of a limitation period the relevance of the expiry of a limitation period is that Amendment becomes much more restrictive in terms of what you can do to remedy rule 377 basically says that an originating process may not be amended except if the amendment is a tech technical matter with the leave meaning permission of the regist of the court if the originating process has not been served and all sealed copies of the originating process and other documents filed with the originating process are returned to the court that issued the originating process then with the leave of the register of the court if the above condition cannot be satisfied then you will need leave of the Court there are lots of factors affecting Amendment so let's look at some of these a party seeking an amendment must satisfy the court that their opponent will not be prejudiced in any way that cannot be remedied by either an adjournment costs or some other appropriate remedy after Aon risk Services Australia limited and Australian National University that's two the 2009 case the citation being 239 CLR 175 it is no longer sufficient that costs even Indemnity costs will be a sufficient remedy such as to allow an amendment the principles of case management are going to be taken taken seriously into account in Queensland and JL Holdings proprietary limited which is 1997 189 CLR 146 at paragraphs 169 to70 Kirby J set out the considerations for and against the exercise of discretion in an application for Amendment factors in favor of the grant um for leave to to amend were that the amendment sort is the only way in which the true issues and the real Merit factual and legal can be litigated and artificially avoided that the relevant oversight is adequately explained that the pro proposed amendment is of considerable importance to the rights of a party particularly where it provides a complete answer to a claim that any fault is attributable to the party's legal Representatives that there has been the perception of an important new Point by new legal Representatives that the hearing date is not jeopardized factors mitigating a the grant of leave to amend the absence of an explanation for a late application the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions The Strain in which the litigation May Place upon those involved and the natural desire of most litigant to be freed as quickly as possible from the anxiety distraction and disruption which Med uh meditation um which mediation causes the proximity to the hearing date the length of time that the proceedings have been pending the longer the time the more reasonable it is to expect that the matter should have been raised earlier the extent to which a new issue would give rise to a substantial and new case in reply a navigation um navigation abuse manifest in repeated to fault on the part of a lyric and his contact has the effect a frustrating proper timetable fixed for the for the trial now let's move on to the slip rule which provides a jurisdiction for a court to correct a mistake or an error in a judgment or or order so rule 388 applies if there is a clerical mistake or an order or certificate of the coroner order or certificate of the court or an error in the record of an order or certificate of the Court a mistake or error that resulted from an accidental slip or emission in these circumstances the court on application by a party or on its own initiative May at any time correct that mistake or error this is a handy rule for dealing with typos mixing up the parties and various things in judgments and orders want of prosecution is another topic this relates to the failure to prosecutor proceeding with due diligence which may under the inherent jurisdiction result in proceedings ending abruptly the same principles apply under rule 280 of the uniform civil procedure rules if the party or applicant is required to take a step required by these rules or comply with an order of the court within a stated time and the plaintiff or applicant does not do what is required within the state of time for for doing that act a defendant or a respondent in the proceeding can apply to the court for an order dismissing the proceedings for want of prosecution in other words a failure to prosecute proceedings the court May dismiss the proceedings or make any other order it considers appropriate it can make an order of dismissing the proceeding for want of prosecution and may set it aside which may only then be set aside on appeal or if the parties agree to being set aside the Advent of case management makes it far less likely that lengthy times frames formally associated with litigation will occur hence the need for dismissal for want of prosecution the next area to consider a self-executing orders which set out the consequences taking effect upon non-compliance with the order itself this is provided for in rule 374 which applies if a party does not comply with an order to take a step in a proceeding the rule doesn't limit the power of the court to punish for contempt and a party who is entitled to the benefit of such an order May by application require the party who has not complied to show cause why the order why the order should not be made against it these are orders which outline the consequences of failure to comply the last concept I'd like to touch on briefly today is time the rules of time deal with the reck with deal with Reckoning in other other words how time is calculated how it's extended how it's Abridged or made shorter how it's fixed vacation and registry closures and the effect of that the Reckoning of time is dealt with primarily by the acts interpretation act 1954 Queensland section 38 and I'll just take one example from that section you do need to study it thoroughly because it's going to permeate right throughout all the legislation and rules that you consider in this unit section 381 says that if a period beginning on a given day act or event is provided or allowed for a purpose by an act the period is to be calculated by excluding the day or the day of the act or event so you exclude the first day in other words when it refers to allow for the purpose by an act that also includes subordinate legislation such as rules of court and there are numerous time rules associated with Section 38 you need to spend the time sorry for the pun there but you do need to spend the time looking at them they're very important extension and abridgment are provided for by rule 7 of the ucpr and it just says that the court May at any time extend a time set under these rules or by order and if a time set under these rules or by an order includes a time for service and if that's not ended then the court May shorten the time for service so it allows for both lengthening and abridgment or the shortening of time frames in summary in topic four we've examined in four main areas parties and Joiner non-compliance Amendment and time as you're going through the readings for this week just think about the objectives for this week's work and make sure you tick each one off so that you understand them in the next topic we'll be examining pleading and summary disposition until then bye for now