Hillier v Martin (No 17) [2022] FCA 1156

Hillier v Martin (No 17) [2022] FCA 1156

It was in the interests of justice to dispense with FCR 9.05(3) and order that the joinder of the proposed respondents take effect from 23 May 2022 because doing so would not permit the applicant to overcome any limitation period defence, no prejudice was identified by the respondents or proposed respondents, the delay in bringing the joinder application had been explained, there was a common factual matrix, and the respondents and proposed respondents remained able to plead limitation defences. Leave to plead s 48 of the Limitation of Actions Act 1936 (SA) was granted because no prejudice was identified and the respondents would have sufficient time to respond.

Jurisdiction
Australia
Judgment Date
20 September 2022
Procedural Posture
Interlocutory Application in Federal Court Proceedings / Reasons for Orders on Joinder, Amendment of Originating Application and Leave to Plead S 48 of the Limitation of Actions Act 1936 (sa)
Outcome
Application granted.
Legal Topics
['joinder of Parties' 'federal Court Rules 2011 (cth) Rr 1.32, 1.35 and 9.05' 'relation Back Principle' 'limitation Defences' 'amendment of Originating Application and Statement of Claim' 'limitation of Actions Act 1936 (sa) S 48']
['practice and Procedure' 'commercial and Corporations'] ['joinder of Parties' 'federal Court Rules 2011 (cth) Rr 1.32, 1.35 and 9.05' 'relation Back Principle' 'limitation Defences' 'amendment of Originating Application and Statement of Claim' 'limitation of Actions Act 1936 (sa) S 48']

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Procedural Posture

Interlocutory Application in Federal Court Proceedings / Reasons for Orders on Joinder, Amendment of Originating Application and Leave to Plead S 48 of the Limitation of Actions Act 1936 (sa)

Legal Issues

  1. 1 ['Whether, contrary to FCR 9.05(3), the joinder order should take effect from 23 May 2022 pursuant to FCR 1.32 and 1.35.' 'Whether leave should be granted to file and serve an amended statement of claim and further amended originating application reflecting additional parties, new causes of action and relief.' 'Whether leave should be granted to plead an application under s 48 of the Limitation of Actions Act 1936 (SA).']

Ratio Decidendi

It was in the interests of justice to dispense with FCR 9.05(3) and order that the joinder of the proposed respondents take effect from 23 May 2022 because doing so would not permit the applicant to overcome any limitation period defence, no prejudice was identified by the respondents or proposed respondents, the delay in bringing the joinder application had been explained, there was a common factual matrix, and the respondents and proposed respondents remained able to plead limitation defences. Leave to plead s 48 of the Limitation of Actions Act 1936 (SA) was granted because no prejudice was identified and the respondents would have sufficient time to respond.

Court Disposition

Application granted.

Orders

  • ['Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) (FCR), leave is granted to the applicant to join as respondents to the within proceedings, Stephen Bradley Williams, Norman Waterhouse Lawyers (a Firm), and Norman Waterhouse Lawyers Pty Ltd.' 'FCR 9.05(3) is dispensed with.' 'Pursuant to FCR 1.32 and 1.35,...