Hillier v Martin (No 13)

• Jurisdiction: Australia Federal only
• Judgment Date: 18 August 2022
• Neutral Citation: [2022] FCA 939
• Date: 18 August 2022
• Court: Federal Court

Federal Court of Australia

Hillier v Martin (No 13) [2022] FCA 939

File number(s):	SAD 113 of 2020
Judgment of:	O'SULLIVAN J
Date of judgment:	18 August 2022
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application by the applicant filed 16 May 2022 to join parties and serve a further amended statement of claim – argument heard and decision reserved – subsequently a non-party brought an interlocutory application pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) (FCR) seeking to reopen argument on applicant’s interlocutory application filed 16 May 2022 – non-party seeking leave to appear, make submissions and tender evidence on the applicant’s interlocutory application filed 16 May 2022 – whether non-party has standing to bring application – application dismissed
Legislation:	Evidence Act 1995 (Cth), s 128 Federal Court Rules 2011 (Cth), r 4.05(1)(a)
Cases cited:	Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322 Grant v BHP Coal Pty Ltd [2015] FCA 329 Lawrie v Lawler [2016] NTCA 03, (2016) 168 NTR 1 Levy v Victoria [1997] HCA 31, (1997) 189 CLR 579 McAlister v New South Wales [2014] FCA 702, (2014) 223 FCR 1 Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54, (2011) 248 CLR 37
Division:	General Division
Registry:	South Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	66
Dates of hearing:	27 July 2022, 9 August 2022
Counsel for the Applicant:	Mr R J Whitington QC with Ms H Doyle
Solicitor for the Applicant:	Sykes Bidstrup
Solicitor for the First and Second Respondents:	Mr A Wright of Boylan Lawyers
Counsel for the Interested Person:	Mr T Martin in person

ORDERS

		SAD 113 of 2020
BETWEEN:	JAMES HILLIER Applicant
AND:	VICTORIA MARTIN First Respondent ; NORDBURGER OPERATIONS PTY LTD Second Respondent ; ERIK VARI PTY LTD Third Respondent
OTHER	THOMAS PATRICK MARTIN Interested person

order made by:	O'SULLIVAN J
DATE OF ORDER:	18 August 2022

THE COURT ORDERS THAT:

1. The non-party’s application filed on 21 July 2022 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’SULLIVAN J:

Introduction

1. By interlocutory application filed 21 July 2022, Thomas Patrick Martin (Mr Martin) seeks, amongst other things, that:

1. Argument is re-opened on the applicant’s interlocutory application filed 16 May 2022 seeking the joinder of additional parties and leave to amend the pleadings in this action; and

2. Mr Martin be granted leave, as an interested non-party, to appear at the hearing, make submissions and tender evidence on the applicant’s interlocutory application filed 16 May 2022.

2. Mr Martin, who is a legal practitioner, is not named as a party to these proceedings.

Background

3. On 16 May 2022, the applicant (Mr Hillier) filed an interlocutory application seeking, amongst other things:

1. Leave to join Stephen Bradley Williams (Mr Williams), a legal practitioner and Norman Waterhouse Lawyers Pty Ltd as respondents to these proceedings; and

2. Leave to file a third amended statement of claim (together joinder application).

4. On 14 June 2022, Mr Hillier sought and was granted leave to amend the joinder application by adding to the parties to be joined, Norman Waterhouse (a firm) (in which Mr Williams was a partner) and seeking leave to file and serve a fourth amended statement of claim.

5. Until 10 June 2022, Mr Williams and Norman Waterhouse (initially as a firm and subsequently as an Incorporated Legal Practice) were retained as solicitors for the first and second respondents.

6. The first return date for the joinder application was 19 May 2022, at which time, on the oral application of the first and second respondents, the application was adjourned to 25 May 2022.

7. When the matter returned on 25 May 2022, Mr Ower QC, who appeared for the first and second respondents, sought approximately two weeks to take instructions on the joinder application and to file and serve any documents as may be advised. Mr Blight QC appeared as counsel for Mr Williams, Norman Waterhouse (a firm) and Norman Waterhouse Pty Ltd (proposed respondents) and requested time to consider the documents that had been filed in the matter, file any affidavits, and prepare written submissions. Programming orders were made and the argument was listed on 14 June 2022.

8. The proposed respondents and Mr Hillier complied with the programming orders made on 25 May 2022. The first and second respondents did not file any affidavits or written submissions.

9. On Friday 10 June 2022, Mr Williams filed a notice under r 4.05(1)(a) of the Federal Court Rules 2011 (Cth) (FCR) giving notice to the first and second respondents of his intention to cease acting as their lawyer in the proceedings.

10. When the matter was called on for argument on 14 June 2022, Mr Ower QC sought leave to appear without instructing solicitors for the first and second respondents for the purposes of applying to adjourn the argument. I granted leave to Mr Ower QC to appear and make the application. Mr Hillier opposed the adjournment and the proposed respondents neither consented nor objected to the adjournment application. After hearing from Mr Ower QC, I refused the application to adjourn and proceeded to hear the argument.

11. The joinder application was supported, amongst other things, by Mr Hillier’s eighth affidavit to which he annexed a proposed fourth amended statement of claim. That proposed fourth amended statement of claim makes allegations against the proposed respondents and also Mr Martin. It seeks no relief against Mr Martin.

12. During the course of the argument on the joinder application, the Court heard detailed submissions from Mr Blight QC for the proposed respondents, as part of his submissions that leave should not be granted to join the proposed respondents, in which he embarked upon a comprehensive examination of the proposed fourth amended statement of claim (4ASoC).

13. At the conclusion of the argument on 14 June 2022, I reserved my decision. In view of this application, the decision remains reserved.

Mr Martin’s interlocutory application - standing

14. Mr Martin brings his interlocutory application on the basis he is an “interested party”, notwithstanding that no relief is sought against him. He is however, identified in the proposed fourth amended statement of claim as a party allegedly involved in a conspiracy.

15. Mr Martin’s interlocutory application came before the Court on 27 July 2022, Mr Whitington QC appeared for Mr Hillier and submitted that Mr Martin had no standing to bring his interlocutory application. The new solicitors for the first and second respondents, and Mr Blight QC for the proposed fourth, fifth and sixth respondents, took no position.

16. I indicated to Mr Martin that he needed to satisfy me he had standing to bring his interlocutory application before I would list his interlocutory application for argument.

17. Mr Martin made order submissions and asked during the course of the hearing that I grant him leave to file a short affidavit on the question of standing. I refused that request...