Johnston v Vintage Developments Pty Limited (ACN 067 567 006) [2006] FCAFC 171 (28 November 2006)

Last Updated: 8 December 2006

FEDERAL COURT OF AUSTRALIA

Johnston v Vintage Developments Pty Limited (ACN 067 567 006)

[2006] FCAFC 171

CORRIGENDUM

GRANT HEATON JOHNSTON v VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) AND ANOR)
NSD 915 OF 2006

TAMBERLIN, JACOBSON AND RARES JJ
28 NOVEMBER 2006 (CORRIGENDUM 1 DECEMBER 2006)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GRANT HEATON JOHNSTON Applicant/Appellant
AND:	VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) First Respondent ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277) Second Respondent

JUDGES:	TAMBERLIN, JACOBSON AND RARES JJ
DATE OF ORDER:	28 NOVEMBER 2006
WHERE MADE:	SYDNEY

CORRIGENDUM

1. In paragraph [34] the words ‘ought to have ordered’ should be replaced with ‘ought to have been asked to order’.
2. In the appearances section of the judgment:

(a) ‘Baker & McKenzie’ should read ‘Shand & Associates’;
(b) ‘Shand & Associates’ should read ‘Baker & McKenzie’; and
(c) ‘Mr P R L Lancaster’ should read ‘Mr R P L Lancaster’.

I certify that the preceding two (2) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Jacobson and Rares.

Associate:
Dated: 7 December 2006

FEDERAL COURT OF AUSTRALIA

Johnston v Vintage Developments Pty Limited (ACN 067 567 006)

[2006] FCAFC 171

PRACTICE & PROCEDURE – Federal Court procedure – pleadings – joinder – amended application and further amended statement of claim naming additional respondent filed within limitation period but without leave – notice of motion seeking leave for joinder filed after limitation period expired – whether pleading a nullity – whether pleading capable of commencing a cause of action within limitation period - grant of leave nunc pro tunc

Held - irregularity able to be cured by granting leave nunc pro tunc; appeal dismissed with costs

Federal Court of Australia Act 1976 (Cth) s 51
Federal Court Rules O 1 r 5A(1); O 6 rr 2, 4, 8; O 13 rr 2-3A

Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 228 ALR 387 applied
Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 followed
Cropper v Smith (1884) 26 Ch D 700 cited
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 cited
Fernance v Nominal Defendant (1989) 17 NSWLR 710 distinguished
Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 cited
Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 cited
National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209 applied
Purden Pty Limited v Registrar in Bankruptcy (1982) 64 FLR 306 cited
Queensland v JL Holdings Pty Limtied [1997] HCA 1; (1997) 189 CLR 146 cited
Vintage Developments Pty Limited v GHD Pty Limited FCA [2006] 531 varied










GRANT HEATON JOHNSTON v VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) AND ANOR
NSD 915 OF 2006

TAMBERLIN, JACOBSON AND RARES JJ
28 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GRANT HEATON JOHNSTON Applicant/Appellant
AND:	VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) First Respondent ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277) Second Respondent

JUDGES:	TAMBERLIN, JACOBSON AND RARES JJ
DATE OF ORDER:	28 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal be granted and the appeal be treated as having been instituted and heard instanter.
2. The orders made by Bennett J on 11 May 2006 be varied by adding the following order:

(2) Leave be granted nunc pro tunc to the applicants to file on 2 December 2005 and to serve the amended application and the further amended statement of claim as filed on 2 December 2005.

3. Leave be granted to the appellant to file a notice of appeal in the form of a document filed in Court on the hearing of the appeal.
4. The appeal be otherwise dismissed.
5. The appellant pay the costs of the first and second respondents of the application for leave and the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GRANT HEATON JOHNSTON Applicant/Appellant
AND:	VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) First Respondent ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277) Second Respondent

JUDGES:	TAMBERLIN, JACOBSON AND RARES JJ
DATE:	28 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 Vintage Developments Pty Limited and Errol Investments Pty Limited commenced proceedings against GHD Pty Limited in July 2005. The application claimed damages under s 82 of the Trade Practices Act 1974 (Cth) arising out of the purchase by Vintage of land at Rothbury from Hunter Valley Estates Pty Ltd. The contract for that purchase was entered into on 4 December 1999. Before the contract was made GHD was alleged to have prepared and published to Vintage and Errol, either by itself or together with Hunter Valley Estates, an information memorandum concerning the Rothbury property. Vintage and Errol allege that GHD’s information memorandum contained misleading or deceptive information or representations on which they relied which caused them damage because Vintage purchased the Rothbury land.

2 In July 2005, Vintage and Errol commenced proceedings by filing an application and statement of claim against GHD. In early November 2005 Vintage and Errol amended the statement of claim, but GHD remained the sole respondent.

3 On 29 November 2005 the docket judge granted leave to GHD to file and serve a cross-claim in a form to which Vintage and Errol had consented. She also granted leave to Vintage and Errol and file and serve any further amended statement of claim to join Hunter Valley Estates (which was the cross respondent to the proposed cross-claim) as a respondent to the principal proceedings on or before 12 December 2005.

4 Two days later, on 1 December 2005, Mr Chapple, the solicitor for Vintage and Errol, identified that the limitation period in which his clients could commence proceedings against Hunter Valley Estates and anyone who may have aided and abetted its alleged misleading conduct would arguably expire on Saturday 3 December 2005. That was 6 years after the date on which he said his clients had entered into the contract to purchase the Rothbury land. He sought instructions on that day from representatives of Vintage and Errol in relation both to joining Hunter Valley Estates as a respondent to the proceedings and also to joining two individuals, Donald Johnston and Grant Johnston.

5 Mr Chapple said that because of the imminent potential expiry of the limitation period, his clients did not have sufficient time to have the matter re-listed for the purpose of seeking leave to join Donald and Grant Johnston as parties to the proceedings prior to filing a further amended statement of claim. Instead, on 2 December 2005 Mr Chapple caused an amended application and a further amended statement of claim to be filed which joined Donald and Grant Johnston as third and fourth respondents and pleaded causes of action against each of them. Later, the proceedings against Donald Johnston were abandoned.

6 On 5 December 2005 Mr Chapple arranged for service on among others Grant Johnston. On 13 December 2005, before Grant Johnston was served but after the limitation period had expired, Vintage and Errol applied by notice of motion for an order that they be granted leave ‘... pursuant to Order 6, rule 2 of the Federal Court Rules, to join Donald Brian Johnston and Grant Heaton Johnston as Respondents to the proceedings’. On the same day, the docket judge made orders, inter alia, providing for Hunter Valley Estates to serve any request for further and better particulars of the further amended statement of claim within a week and to file and serve its defence to that pleading by early February 2006.

7 The motion for joinder of Grant Johnston was opposed. Grant Johnston argued before her Honour that the pleadings failed to disclose a properly framed cause of action such as would warrant his joinder. The essence of the application to join him was that he was a person liable under s 75B of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW) and he either had been knowingly concerned in the making of the misleading representations by GHD or Hunter Valley Estates or had himself engaged in misleading or deceptive conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW).

8 During the course of the argument, her Honour dealt with the complaints about the adequacy of the pleading in a way in which the parties agreed there was no need for her to deliver a judgment. Suffice to say that she found that the pleading of the proposed causes of action against Grant Johnston was sufficient. The sole matter that remained for debate before her Honour was whether to grant leave to join Grant Johnston.

9 At no point until the argument before us was any application made by Vintage and Errol formally for leave to amend the application and statement of claim so to conform to the documents actually filed on 2 December 2005.

GRANT JOHNSTON’S ARGUMENT

10 Grant Johnston submitted that her Honour should have refused leave to have him joined because the motion was only filed after the expiry of the limitation period and no leave had been granted prior to that period either for his joinder or for the pleadings to be amended so as to raise a cause of action joining him. Because of the failure to obtain leave, he submitted that the amended application and further amended statement of claim filed on 2 December 2005 were nullities which are incapable of being saved under s 51 of the Federal Court of Australia Act 1976 (Cth) or any provision of the rules. If he is correct, then it is accepted that the proceedings should be dismissed against him because of the expiry of the limitation period.

11 The Court heard the application for leave to appeal as if it were the appeal proper.

ISSUES

12 The essential issue is whether the Court can, by order, cure the want of any grant of leave to join Grant Johnston or to amend the application and further amended statement of claim prior to the expiry of the limitation period. That expiry is agreed to have occurred on 4 December 2005.

13 Vintage and Errol applied at the hearing of the appeal for an order granting them leave to amend the application and further amended statement of claim in the form in which those documents were filed on 2 December 2005 so far as they concern the joinder of Grant Johnston.

14 The parties were granted leave to file further written submissions on the issue of whether the joinder on 2 December 2005 was an irregularity which was curable by force of s 51 of the Federal Court of Australia Act 1976 (Cth) or the Federal Court Rules. Lengthy submissions were provided. Grant Johnston advanced arguments as to the prejudice to him if the filing of the pleading were regularised. Much of the argument invited a consideration of the merits of the cross-claim and the prejudice to Mr Johnston following its late institution. This was notwithstanding that the hypothesis for the grant of leave nunc pro tunc was to regularise the commencement of the cross-claim against him within, rather than outside the limitation period.

RELEVANT PROVISIONS

15 Critically, s 51 of the Federal Court of Australia Act 1976 provides:

‘(1) No proceedings in the Court are invalidated by a formal defect or an irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

(2) The Court or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid by reason of a defect that it or he or she considers to be formal, or by reason of an irregularity.’

Although lengthy it is helpful to set out the relevant provisions of the rules.

Order 6 r 2 Joinder of parties generally

Two or more persons may be joined as applicants or respondents in any proceeding:
(a) where:

(i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court gives leave so to do.

4 Leave under rule 2 and subrule 3 (2)

(1) The Court may grant leave under rule 2 before or after the joinder and may grant leave under subrule 3 (2) before or after the non-joinder.

(2) An applicant may apply for leave under rule 2 or subrule 3 (2) either before or after the filing of his originating process and may apply without serving notice of the motion on any person on whom the application has not been served.

8 Addition of parties

(1) Where a person who is not a party:
(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;

the Court may order that the person be added as a party and make orders for the further conduct of the proceeding.

(2) A person shall not be added as an applicant without the person’s consent.

13 r 2 General

(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5) or (6) or paragraph (7) (a) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.

(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:

(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or

3 Amendment of pleading without leave

(1) A party may, without leave, amend any pleading of his once at any time before the pleadings are closed.

(2) A party may further amend any pleading of his before the pleadings are closed and without the leave of the Court if he obtains the consent of all other parties.

(3) Subject to subrule (4), an amendment may be made even if:

(a) the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief, whether by way of substitution for an existing claim for relief or foundation in law or not; or

(b) the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.

(4) Subrule (3) does not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.

3A Date when amendment takes effect

Unless the Court otherwise orders, an amendment of a document that is made under rule 2 or 3 takes effect:

(a) if the amendment is made under paragraph 2 (7) (b), subrule 2 (8) or subrule 3 (3) - on the date when the amendment is made; and

(b) in any other case - on the date when the document was first filed.’

CONSIDERATION

16 Order 4 r 1(1) provides that except as otherwise provided in the rules, all proceedings in the Court’s original jurisdiction are to be commenced by filing an application. Order 1 r 5A(1) provides that a document that is required by the rules to be filed may be presented to a registry when it is open for business. The word ‘filed’ is the word traditionally used to describe the act or process of placing documents in the records of a court or registry: Purden Pty Limited v Registrar in Bankruptcy (1982) 64 FLR 306 at 309-310; 43 ALR 512 at 515 per Bowen CJ, Fisher and Lockhart JJ; Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471C-D, 473B per Burchett, Lehane and Finkelstein JJ. In this context the act of filing a document is the act of the Court, as opposed to the act of lodging it, which is the act of a party.

17 There can be no doubt that the amended application and further amended statement of claim were filed in the Court on 2 December 2005 for they bear the Court’s ‘filed’ stamp on that date together with its seal. It follows, that when the amended application and further amended statement of claim including the names of Donald and Grant Johnston as respondents were presented to the registry and accepted by it, proceedings were commenced against them by force of O 4 r 1(1).

18 In a practical way this accords with the view that her Honour took. She said that while the further amended statement of claim may have had some formal defects, it was ‘considered’ as an amended document, or in effect, a fresh pleading filed within O 13 r 3A. Her Honour reasoned that O 13 r 2(1) permitted the document in the proceedings to be amended by an order granting leave to do so in such a manner as the Court thought fit and that Order 13 r 3A enabled the amendment to have effect from the date on which it was filed, 2 December 2005.

19 Grant Johnston submitted that the amended application and further amended statement of claim filed on that date were nullities. That argument should not be accepted. In Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 228 ALR 387 at 389-390 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ noted the doctrine that acts by superior courts of record in excess of jurisdiction cannot be characterized as invalid until quashed or set aside on appeal (228 ALR at 389 [11]). They continued (228 ALR at 390 [13]):

‘There is also a very real difficulty in characterising proceedings as "invalid". The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the Court, which in modern times is found primarily in the Rules.’

20 They went on to explain that even where a procedural rule was expressed in mandatory form, if the party to whom it was addressed chose to disregard it, ‘... the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the Court’ (228 ALR at 390 [14]). And, significantly, they said:

‘Generally there is, in law, no restriction upon a person’s right to start an action and to carry it on to the point which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.

None of the above denies the possibility of a defendant denying the plaintiff’s right to invoke the jurisdiction of a court, for example, where the plaintiff’s right is conditional upon there being an action cognisable within the jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law and not outside it.’ (228 ALR at 390 [15]-[16]) (emphasis added)

21 In National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209 at 217, Gummow J had to deal with a similar position. Cross-claims were filed in existing proceedings well outside the time in which the rules permitted that filing without leave. He said that the cross-claims were irregularly filed. His Honour considered but rejected an application under O 1 r 8 that the Court dispense with the requirements of the rules after the cross-claims had been filed and struck them out so that a substantive application for leave to file them could thereafter be made (22 FCR at 218).

22 In Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 335C-D Burchett, Ryan and Marshall JJ referred to Gummow J’s approach and said that it was consistent with their view that s 51 of the Federal Court of Australia Act 1976 (Cth) could be availed of to correct a defect arising from the irregular filing of a cross-claim, filed without leave, when leave was required. The Court granted leave nunc pro tunc saying that the failure to obtain leave before filing a cross-claim and after the time fixed for the filing of a defence, is a formal defect. They held it to be an irregularity which could be remedied by an order of the Court granting leave to file the cross-claim with effect from the date on which it had been filed (82 FCR at 334B-C). They continued:

‘It should also be noted that the word "proceedings" is used in s 51(1) of the [Act]. The use of the plural rather than the singular supports the view that any irregularity or formal defect in relation to a step taken in prosecution of a controversy justiciable by the Court may be remedied.’

23 We agree with this approach. The arguments advanced by Grant Johnston as to prejudice that would flow to him from granting leave nunc pro tunc and avoiding the expiry of the limitation period should not be accepted. The cross-claim was irregularly filed before the expiry of the limitation period. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 555, if the action has been brought within time, difficulties of recollection and all the other issues as to prejudice to which Grant Johnston pointed would be of no present relevance. Once it is accepted that the filing of the cross-claim on 2 December 2005 was not a nullity, the prejudice to Vintage and Errol would be incurable if the cross-claim were struck out because the limitation period has by now expired. As Bowen LJ said in the well known passage in Cropper v Smith (1884) 26 Ch D 700 at 710 (cited with approval in Queensland v JL Holdings Pty Limtied [1997] HCA 1; (1997) 189 CLR 146 at 152-153 per Dawson, Gaudron and McHugh JJ):

‘... 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 rights. ... I 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.’

24 Given that no possible reason for refusing leave to file the cross-claim on 2 December 2005 could have been advanced by Grant Johnston had the application been made on that day, he can suffer no relevant prejudice by the regularisation of that irregular filing.

25 Here, the relevant procedural requirements are supplied by s 51 of the Federal Court of Australia Act 1976 (Cth) and the relevant provisions of the rules. The rules contemplate, especially in O 6 r 4, that leave to join a party can be granted after the applicant has filed in the Court an amended pleading which in fact joins the party. The rule contemplates, in effect, that the Court can confirm the prior acts of the parties in presenting, and of the registry of the Court in accepting, a document, by making an order granting leave to have done so after the actual joinder has taken place. Likewise, under these procedural provisions, the Court can refuse leave, thereby setting aside the prior joinder. But unless and until the filing of the document is set aside it has an operative effect, albeit subject to the possibility of disallowance under the rules.

26 An irregularity occurred because the joinder was to an existing proceeding and no leave had been sought to authorize either the joinder or the amendments which pleaded causes of action against either of Donald or Grant Johnston. An order granting leave to amend the application or statement of claim so as to conform with the documents actually filed on 2 December 2005 ought to have been made. The failure to make that order was a procedural irregularity which was capable of being cured both within the provisions of the rules themselves (with or without the use of the power to dispense with compliance under O 1 r 8) or by granting leave under O 6 r 2(b), O 4(1), O 13 r 2(1) or O13 r 3A. Each of these provisions authorises the Court, procedurally, to permit what happened on 2 December 2005.

27 Mr Chapple, the solicitor for Vintage and Errol, gave unchallenged evidence that explained how the documents came to be filed on 2 December 2005 without leave. Whether or not prudence would have suggested applying ex parte to the duty judge or the docket judge for leave to file the documents in the form they were against the proposed new respondents, including Grant Johnston, is not to the point. The documents were filed and accepted by the Registry as parts of the records of the Court thereby engaging its jurisdiction to hear and determine the matter pleaded against Grant Johnston. The failure to obtain prior leave of the Court was an irregularity which the rules themselves contemplate could be cured, as does s 51 of the Federal Court of Australia Act 1976 (Cth).

28 In Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 at 736A-B (and see too at 735B-C) Lord Denning MR said that the effect of a rule, in broader terms than s 51, had the effect that it was not possible for an honest litigant to be defeated by a mere technicality, any slip or any mistaken step in his litigation. Diplock LJ said, somewhat appositely to the present proceedings (at [1967] 2 QB at 736C-D):

‘Thomas William Harkness, retired boiler-lagger, if he had followed, as I have no doubt he has, the intricacies of the interlocutory proceedings in the case, must have thought that "the law is a [sic] ass". I am not sure that this judgment will change his opinion, but at any rate he will not feel that it is such an unjust ass as he must have felt before.’

29 Grant Johnston argued that there was a substantive prejudice to him were leave to be granted in that he would lose any right to plead a limitation defence based on the failure to file with leave on 2 December 2005. In our opinion, there is no prejudice to Mr Johnston, since an amended application and further amended statement of claim were in fact filed joining him to the proceedings on that date.

30 Grant Johnston argued that the filing on 2 December 2005 was akin to the situation in Fernance v Nominal Defendant (1989) 17 NSWLR 710. There, a Master had granted leave to join a defendant, without granting leave to amend the pleadings. There was no draft pleading before the master at the time of the making of the order. The limitation period expired after the grant of leave had been made without any originating process being filed joining the new defendant. Subsequently, an amended statement of claim was filed. Gleeson CJ and Clarke JA held that the rules could not operate to save the proceedings against the new defendant from being defeated by a limitation defence and that therefore the proceedings against the new defendant should be dismissed. Gleeson CJ pointed out that a particular form of amendment existed by way of the addition of a new party, but that the general power to amend the proceedings had, as its source, another provision of the rules (namely the analogues of Orders 6 and 13)

31 As Gleeson CJ noted, the analogue to s 51, s 81 of the Supreme Court Act 1970 (NSW), gave the Court power to overlook or rectify irregularities. But, he said that in that case there had not been a failure to comply with the requirements of the Supreme Court Act 1970 (NSW) or of the rules, but merely a failure by the plaintiff to take advantage of an opportunity, limited in point of time, created by the consent order to file a pleading joining as a defendant a new party (17 NSWLR at 723E-G). And, as he noted, s 81 could not operate to avoid the substantive effect of the Limitation Act 1969 (NSW) which extinguished the plaintiff’s cause of action against the new defendant in the event that there had not been a pleading filed within the time provided by the latter legislation (17 NSWLR at 723G-724B). This situation is not analogous to that in which the parties found themselves on 2 December 2005 and thereafter.

32 In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, the majority (Dawson, Toohey and Kirby JJ) upheld the subsequent grant of leave to apply for an order that a company be wound up in insolvency notwithstanding that when the order had been made leave had not been sought. They referred to the long standing powers of courts to grant leave nunc pro tunc (see at 188 CLR at 125 per Dawson J agreeing with Toohey J and applying Scholl J in Re Testro Bros Consolidated Limited [1965] VR 18 at 33-35, Toohey J at 128 and 132 and Kirby J at 153). Toohey J referred with approval to what Lord Eldon LC had said in Donne v Lewis (1805) 11 Ves Jun 601 [32 ER 1221 at 1222], namely:

‘The Court will enter a Decree nunc pro tunc, if satisfied from its own official documents, that it is only doing now what it would have done then.’

33 Had an application been made on 2 December 2005 for leave to file and serve the amended application and further amended statement of claim against Grant Johnston, there can be no doubt that leave would have been granted. Grant Johnston would then have been made a party to the proceedings in a regular way, notwithstanding that he may later have applied to set aside the grant of leave and his joinder. Any procedural irregularity flowing from the failure to seek such leave, should be cured by an order now regularizing the matter.

34 Although the joinder was irregular, it could not have been a nullity for the reasons given in Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 228 ALR 387. For these reasons, her Honour ought to have ordered that leave be granted to file and serve the amended application and further amended statement of claim filed in the Registry on 2 December 2005 to the extent that they joined Grant Johnston and pleaded causes of action and claims of relief against him (see also Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 at 154-155).

35 It follows that leave to appeal should be granted and the substantive appeal dismissed. But it is necessary to regularize the actual filing of the amended application and further amended statement of claim by granting leave for those documents to have been filed with effect from 2 December 2005. This will protect any rights Grant Johnston has to plead a limitation defence for events which occurred more than six years prior to the time of filing.

36 Leave should be granted to Grant Johnston to file a notice of appeal in the form of a document filed in Court on the hearing of the appeal. Grant Johnston should pay the costs of Vintage and Errol of the application for leave and the appeal. Grant Johnston should be ordered to file the notice of appeal in the form handed up to the Court at the hearing of the appeal within 7 days.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Jacobson and Rares.

Associate:

Dated: 28 November 2006

Counsel for the Applicant/Appellant:	Ms J E Richards
Solicitor for the Applicant/Appellant:	Baker & McKenzie
Counsel for the Respondents:	Mr P R L Lancaster
Solicitor for the Respondents:	Shand & Associates
Date of Hearing:	7 November 2006
Date of Final Submissions:	20 November 2006
Date of Judgment:	28 November 2006