Cameron v National Mutual Life Association of Australasia Ltd (No 2) [1991] QSCFC 14 [1992] 1 Qd R 133

IN THE SUPREME COURT OF QUEENSLAND REVISED COPIES ISSUED Court Reporting Bureau Date: /3/ 3 /a f ■m twi —ri i ■ iim ii ■mTnu.MM'iiiiinV i a iBKMI.I YTiT*~t mi -FULL COURT Writ No. 4778 of 1988 BEFORE: Mr Justice McPherson S.P.J. Mr Justice Derrington Mr Justice Moynihan BRISBANE, 7 MARCH 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter ,Court Reporting Bureau.) BETWEEN: IAN DOUGLAS CAMERON, GWENDOLINE MARGARET emeline Cameron, cyril nausbaum, liapa pty. LTD., REES FREDERICK ROWE, NOLA MARION ROWE, GEOFFREY KERSHAW, PATRICIA KERSHAW, TREVOR WILLIAM SHAW, LORRAINE CLARE SHAW, BLANCHE ABRAHAMS, BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) Respondents -and- NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T & G MUTUAL LIFE SOCIETY LTD.) (First Defendant) Appellant -and- GRAHAM EVANS & CO. (QLD) PTY. LTD. (Second Defendant) Appellant -and- COMALCO FABRICATORS LIMITED (Third Defendant) Appellant -and- THE DAVIS HEATHER GROUP (NSW) PTY. LTD. (Fourth Defendant) Appellant •Govt. Printer, Qld. l [1991] QSCFC 14 -- 1 of 32 -- 1 10 20 30 40 50 60 1 JUDGMENT MR JUSTICE MCPHERSON: The Court in this appeal consisted of Mr. Justice Ryan, Mr. Justice Moynihan and me. In my opinion, the appeal should be dismissed with costs. I publish my reasons. I am authorised by Mr. Justice Ryan to say that in his opinion the appeal should be dismissed with costs and also to publish his reasons, which I do. MR JUSTICE MOYNIHAN: I agree with the order proposed for the reasons which I publish. MR JUSTICE McPHERSON: The order is: /. appeal dismissed with costs. 10 20 r 30 50 60 -Govt. Printer, Qld. 2 -- 2 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Writ 'No. 4778 of 1988 BETWEEN : IAN DOUGLAS CAMERON. GWENDOLINE MARGARET EMELINE CAMERON, CYRIL NAUSBAUM. LIAPA PTY LTD. REES FREDERICK ROWE . NOLA MARION ROWE . GEOFFREY KERSHAW . PATRICIA KERSHAW . TREVOR WILLIAM SHAW. LORRAINE CLARE SHAW. BLANCHE ABRAHAMS. BARBARA GRACE SPROULE AND BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) Respondents AND: NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T. & G. MUTUAL LIFE SOCIETY LTD.) (First Defendant) Appellant AND : GRAHAM EVANS & CO. (OLD) PTY LTD (Second Defendant) Appellant AND: COMALCO FABRICATORS LIMITED (Third Defendant) Appellant AND : THE DAVIS HEATHER GROUP (NSW) PTY LTD (Fourth Defendant) Appellant McPHERSON S.P.J. RYAN J. MOYNIHAN J. Reasons for judgment delivered on 7th March, 1991 by McPherson S.P.J., Ryan and Moynihan JJ. Moynihan J agreeing with the reasons of McPherson S.P.J. and Ryan J. All concurring as to the Order. "APPEAL DISMISSED WITH COSTS. II -- 3 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4778 of 1988 Before the Full Court Mr. Justice McPherson S.P.J. Mr. Justice Ryan Mr. Justice Moynihan BETWEEN: IAN DOUGLAS CAMERON . GWENDOLINE MARGARET EMELINE CAMERON . CYRIL NAUSBAUM . LIAPA PTY . LTD . . REES FREDERICK ROWE . NOLA MARION ROWE . GEOFFREY KERSHAW . PATRICIA KERSHAW . TREVOR WILLIAM SHAW . LORRAINE CLARE SHAW. BLANCHE ABRAHAMS. BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) NATIONAL MUTUAL - and - LIFE ASSOCIATION - and .- Respondents OF AUSTRALASIA LIMITED ( formerly T . MUTUAL LIFE SOCIETY LTD.) (First Defendant) Appellant GRAHAM EVANS & CO. (OLD) PTY. LTD. (Second Defendant) COMALCO FABRICATORS LIMITED (Third Defendant) - and - THE DAVIS HEATHER GROUP (NSW) PTY. LTD. (Fourth Defendant) JUDGMENT - MCPHERSON S.P.J. Delivered the Seventh day of March, 1991 Appellant Appellant Appellant CATCHWORDS Limitation of actions - Running of time - Suspension of - By action "brought" - Whether action in representative form brought by represented defendants - Limitation of Actions Act 1974, s. 10(1(a). Practice - Parties - Numerous plaintiffs - Action in representative form - Brought on behalf of plaintiffs named and unnamed - Whether action brought by unnamed plaintiffs - R.S.C. 0.3, r .10. Counsel: J. Douglas Q.C., P. Freeburn, for the appellants (defendants) F.L. Harrison Q.C. , R.J. Douglas, for the respondents (plaintiffs) Solicitors: Messrs. Fletcher & Cross for the appellants Messrs. Bowdens McCafferty Waters & Ward for the respondents Hearing Dates: 20 and 24 September, 1990. -- 4 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4778 of 1988 BETWEEN : IAN DOUGLAS CAMERON . GWENDOLINE MARGARET EMELINE CAMERON . CYRIL NAUSBAUM. LIAPA C ± i . MARION J-l X XJ • r ROWE. GEOFFREY KERSHAW. \jnCi , iNWi-fM. PATRICIA KERSHAW. TREVOR WILLIAM SHAW. LORRAINE CLARE SHAW, BLANCHE ABRAHAMS . BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 ( Plaintiffs ) Respondents - and - NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T. & G. MUTUAL LIFE SOCIETY LTD.) (First Defendant) Appellant - and - GRAHAM EVANS & CO. (OLD) PTY. LTD. (Second Defendant) Appellant COMALCO FABRICATORS LIMITED (Third Defendant) Appellant - and - THE DAVIS HEATHER GROUP (NSW) PTY. LTD, (Fourth Defendant) Appellant JUDGMENT - McPHERSON S.P.J. Delivered the Seventh day of March, 1991 The writ in this action was issued on 22 December 1988. It was directed to four named defendants of whom it is enough to say that they are alleged to be the persons responsible for the defective condition of a building at Surfers Paradise in which the plaintiffs own units or "lots" under a building -- 5 of 32 -- 2 units plan registered in respect of the land on which the building stands. The claim indorsed on the writ is against all defendants for damages for breach of contract and damages for negligence. The 13 plaintiffs are 12 individuals and a company each of whom is named in the title to the writ. They also profess in the title to the writ, in the indorsement to it, and in para. 1 (a) of the statement of claim, to sue on behalf of other persons not so named. In the title to the proceedings they are expressed to be suing "on behalf of and for the benefit of themselves and the other proprietors of lots in building units plan no . 5451". In the indorsement this expression of capacity is limited to "all plaintiffs who purchased lots in" the plan "from the first defendant or" another named corporation, and the claim is stated to be "against the first defendant for damages for breach of contract pursuant to which such plaintiff purchased such lot". In the statement of claim, it is - simply alleged that the plaintiffs "sue on behalf of and for the benefit of themselves and the other proprietors ... of lots in" the registered plan. So far as concerns the persons not named in the writ, the form in which the plaintiffs claimed to bring the action rested on 0.3, r . 10 of the Rules of the Supreme Court. The Rule is expressed in the well known terms originating in the rules made under the Judicature Act 1873 (Eng.) authorising one or more of numerous persons having the same interest in the subject matter of a cause to sue "on behalf or for the benefit of all persons so interested". Confronted with a writ -- 6 of 32 -- 3 in this form, the defendants applied to the Master, who on 6 September 1989 struck out of the writ and the other proceedings in the action the words "on behalf of and for the benefit of themselves and the other proprietors of lots" in the building units plan. From this decision an appeal was taken to Dowsett J., in the capacity of Chamber Judge. Under 0.86, r.8(4), such an appeal has the character of a hearing de novo. The appeal was, according to the formal order, dismissed on 5 March 1990; but on that date his Honour simultaneously gave leave to "all persons who were as at 22nd December 1988 proprietors of lots...and not named as plaintiffs to elect to be joined as plaintiffs in the action by filing in the Registry a written consent to be so joined...", provided the consent was filed before 26 March 1990. The order permitting such joinder is expressed to be "without prejudice to the rights of the defendants to plead any defence of the Limitation of Actions Act in bar as if each of the plaintiffs had been named as a plaintiff at the time when the writ was issued". His Honour further ordered that the plaintiffs have leave to amend the writ to insert the names of the individual proprietors who so consented. Appeal is now brought by leave against the order of Dowsett J. giving leaving to those unnamed plaintiffs to be joined in the action, and to the named plaintiffs to insert the names of those persons in the writ. The essence of the appellant defendants' submissions on appeal is that his Honour ought not, in the absence of special -- 7 of 32 -- 4 circumstances, to have permitted the joinder of the unnamed plaintiffs as parties-plaintiff at a date (5 March 1990) when their claims may have been statute-barred. The relevant period of limitation is six years whether the action is laid in contract or in tort : Limitation of Actions Act 1974, s.10(1). Relevant events for this purpose are or may be occasions when water entered the building, which is alleged in para. 36 of the statement of claim to have happened on 3, 4 June 1983, and 7, 8 April 1984. The earlier date is more than six years before the writ was issued; but, what is more important say the defendants, it may be that some or all of those who elect to became named plaintiffs after the order made by his Honour on 5 March 1990, may not do so until six years after the date on which the cause of action arose. On appeal much attention was given to the question whether the unnamed plaintiffs were parties to the action from its inception; that is, from the date when the writ issued on 22 December 1988. The answer to this question depends on the character of representative suits or actions invoking the provisions of 0.3, r.10. The rule has its genesis in the pre:-Judicature requirement, at times bordering on obsession, of the Court of Chancery that "all persons materially interested in the subject ought generally to be made parties to the suit, either as plaintiffs or defendants, or ought by service upon them of a copy of the bill, or notice of the decree, to have an opportunity afforded of making themselves active parties in the cause". See Daniel's Chancery Practice. 5th ed. (1871) vol.1, at 172. The underlying reason is, as -- 8 of 32 -- 5 both Daniel and in Duke of Bedford v. Ellis [1901] A.C. 1, at 8, Lord Macnaghten explain, is "in order that a final end might be made of the controversy". The aim of equity was to do complete justice in a single suit (Daniel, at 172). The requirement was difficult if not impossible to satisfy where the parties were very numerous; and its application in practice exhibited increasing signs of stress when confronted in the early nineteenth century with cases involving unincorporated joint stock companies involving vast numbers of individuals. To accommodate those cases, the procedural device was evolved of permitting named parties to sue and be sued on behalf of all others interested. In this way, the fundamental requirement of Chancery procedure could be preserved. In Bedford v. Ellis [1910] A.C. 1, at 10, Lord Macnaghten gives credit to Lord Eldon for holding "broad and liberal" views on this subject. Some of the difficulties, as well as much of- the interest, of proceedings in this representative form became apparent only after the Judicature Act, when the procedure was extended to common law claims. Neither before nor after "introduction of the Judicature system has there been any procedure for compelling disclosure of the names of the unnamed parties in proceedings brought in representative form : see Leathlev v. Robert McAndrew & Co. T 18751 W.N. 259. Their consent to the institution of proceedings on their; behalf is not required : Markt & Co. Ltd, v. Knight Steamship Co. Ltd. [1910] 2 K.B. 1021, at 1039, and they are not subject to the ordinary liabilities of litigants in respect of -- 9 of 32 -- 6 discovery, etc. : ibid. Nor are they liable for costs : Scott v. Pascall (1847) 2 Ph. 390; 41 E.R. .993; Price v. Rhondda U .p . C. (1923) 130 L.T. 156. Their presence in the proceedings is designed to ensure that they are bound by the judgment; and bound they undoubtedly are : see Commissioners of Sewers v. Gellatlv (1876) 3 Ch.D. 610, at 617. In the light of all these considerations the conclusion has been reached that such represented but unnamed persons are not parties : Price v. Rhondda U.D.C. (1923) 130 L.T. 156, at 1 57, per Eve J.; but are, at the very most, capable of being considered as "quasi-parties" : see Scott v. Pascall (1847) 2 Ph. 390 , at 393; 41 E.R. 993, at 995. According to Lord Denning in Moon v. Atherton [1972] 2 Q.B. 435, at 441, such persons are not "full parties". If the question before us turned on whether the unnamed plaintiffs in this case were or were not "parties" to the action, it might be difficult to decide. But, although that was the trend of the submissions before us, I do not, with respect, consider it to be the critical question. The problem here concerns the application of the Limitation of Actions Act. Its operation depends not upon whether the unnamed plaintiffs were "parties" to the action but on whether they brought an action. Whether or not they were parties may perhaps assist in resolving the problem, but is not decisive of the matter. By s .10 of the Limitation of Actions Act :- " (1 ) The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose - -- 10 of 32 -- 7 (a) an action founded on contract ...or tort...." The section uses the expression "action brought". It does not say that the plaintiff must bring the action, although that must needs be implicit in the requirement. An action is brought when a writ is issued, or more specifically, when it is sealed : see 0.7, r.1; cf. Gower v. Woodman Sales Ptv. Ltd. [1988] 2 Qd.R. 15. The writ in the subject action was sealed and so issued on 22 December 1988. The question therefore is whether the unnamed plaintiffs "brought" the action at that date . Speaking generally, a writ must name persons as plaintiff and defendant. That is not expressly required by the Rules but it is implicit in the forms in the schedule to the Rules : see Friern Barnet U.D.C. v. Adams [1927] 2 Ch. 25, at 31, per Atkin L.J.; Re Wykeham Terrace [1971] Ch. 204. Those decisions led to insertion in the English rules of a provision authorising actions against persons unnamed : see McPhail v. Persons. Names Unknown [1973] Ch. 447; cf. R. v. Wandsworth County Court , ex.p. Wandsworth London B.C. [1975] 1 W.L.R. 1314. Unnamed defendants were involved there; but the requirement is equally applicable to plaintiffs : Re a Former Officer of ASIO [1987] V.R. 875. Except where otherwise provided by legislation or the Rules, the writ must therefore name the plaintiff. The writ issued in this action on 22 December 1988 does not name the plaintiffs to whom Dowsett J. on 5 March 1990 gave leave to accede to the action as named co-plaintiffs. The question then is whether, although they were not -- 11 of 32 -- 8 previously named; they nevertheless "brought" the action commenced on 22 December 1988. That falls to be decided according to the language of 0.3, r.10. It says that one or more numerous persons "may sue...on behalf...of all persons so interested". The word "sue" is apt to describe the old Chancery suit begun by bill of complaint. The post-Judicature Rules require it to be applied to proceedings commenced by writ of summons; indeed 0.3, r.10 specifically speaks of a "cause", which is a common law conception. The terms of 0.3, r.10 thus apply to bringing an action, and to doing so "on behalf of all persons... so interested". The rule, it will be seen, makes no distinction between named plaintiffs and unnamed plaintiffs. The action is brought by one or more persons on behalf of them all. In view of this, I do not think it possible to say that the action is brought by or on behalf of the named plaintiff or plaintiffs but not by or on behalf of those not named . In terms of the rule and of s .10(1 ) of the Limitation of Actions Act , the action is "brought" on behalf of all of them. On that view of the matter the plaintiffs, both those named and those represented but not named, brought this action when the writ was sealed on O o o 22 December 1988. There is no direct authority on the matter. The decision in Coombs v. Bristol & Exeter Ry. Co. (1858) 1 F. & F. 206; 175 E.R. 693 comes close to deciding that an action brought in the name of one person may be continued by substituting the name of the person on whose behalf it .was brought although the limitation period has expired. That is a report of the trial -- 12 of 32 -- 9 at nisi prius; for the relevant facts it is necessary to consult the report of the subsequent proceedings before the Court of Exchequer : see 3 Hurlstone & Norman 510; 157 E.R. 572. The only other decision that bears on the point is Moon v. Atherton [1972] 2 Q.B. 435, in which the Court of Appeal held that an unnamed person on whose behalf an action had been brought in representative form was a "party" and so entitled to be substituted as named plaintiff when the original named plaintiff decided to discontinue the action. The Court decided that she was entitled to an order to that effect even though a new action in her own name would have been statute-barred. Their Lordships did not advert to the point that, with respect, I consider to be critical, namely, whether the action in that case was within the meaning of the Limitation Act "brought" by the unnamed plaintiff whether or not she was a "party" to the original action. Subject to that qualification, the decision in Moon v. Atherton is authority for the course taken by the learned judge in the present case. It was submitted that Moon v. Atherton was distinguishable because it was not there disputed that the action was propbrly brought in representative form, whereas here it was held that the action was not properly so brought. The decision of the Master gave effect to that objection, and it is not now sought to challenge it. However, even if that is a valid ground of distinction, I do not consider it to be fatal to the plaintiffs' present submission. Reference was made by the defendants on appeal to Hilton v. Sutton Steam Laundry [1946] K.B. 65 as demonstrating that an -- 13 of 32 -- 10 action wrongly brought in representative form is a nullity; cf. also Austin v. Hart [1983] 2 A.C. 640, at 647-648. However, both those decisions involved non-compliance with a statutory requirement. In this instance no deficiency of that kind is involved. In any event, few if any procedural defects nowadays result in nullity as distinct from irregularity : see Pontin v. Wood [1962] 1 Q.B. 594, at 609. Since the latter case was decided the relevant Rules both in England and Queensland have undergone further amendment by the substitution of what in Queensland is now 0.93, r.17, providing that a failure to comply with Rules is to be treated as an irregularity "and shall not nullify the proceedings". In Harkness v. Bell's Asbestos & Engineering Ltd. [1967] 2 Q.B. 729, at 735, Lord Denning said that the effect of the corresponding English rule was to abolish the old distinction between nullities and irregularities. That view of the matter was adopted in this Court in Perez v. Transfield (Old.) Ptv. Ltd. [1979] Qd.R. 444 by Hoare J., with whom the other members of the Court agreed. It is not clear that the rules of court of Trinidad considered by the Privy Council in Austin v. Hart contained any provision corresponding to 0.93, r.17, or that it was relied on in that case. In my view the use of the representative form of action in the present case did not make either the writ itself or the indorsement of the representative form of claim a nullity. At most it was an irregularity that was capable of being cured, and was cured, by the order made by Dowsett J. giving the ) O O -- 14 of 32 -- unnamed plaintiffs leave to be joined as named plaintiffs. The fact that under the Rules the action ought not to have been brought on their behalf does not mean that it was not so brought. The case does not differ in any material particular from one in which a party wrongly joined in one capacity (say as trustee) is struck out in that capacity but allowed to remain in some other capacity. That is a state of affairs that is expressly catered for by 0.32, r . 1(4), provided that "the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ...he might have sued". If only by analogy, . that is so in . the present case. In my opinion the appeal should be dismissed with costs. -- 15 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4778 of 1988 Before the Full Court Mr. Justice McPherson, S.P.J. Mr. Justice Ryan Mr. Justice Monynihan BETWEEN: IAN DOUGLAS CAMERON. GWENDOLINE MARGARET EMELINE CAMERON. CYRIL NAUSBAUM, LIAPA PTY. LTD. . REES FREDERICK ROWE. NOLA MARION ROWE, GEOFFREY KERSHAW. PATRICIA KERSHAW. TREVOR WILLIAM SHAW. LORRAINE CLARE SHAW. BLANCHE ABRAHAMS. BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) - and - NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T. & G. MUTUAL LIFE SOCIETY LTD.) (First Defendant) - and - GRAHAM EVANS & CO. (OLD) PTY. LTD. (Second Defendant) COMALCO FABRICATORS LIMITED (Third Defendant) - and - THE DAVIS HEATHER GROUP (NSW) PTY. LTD. (Fourth Defendant) Appellant JUDGMENT - RYAN J. Respondents Appellant Appellant Appellant Delivered the Seventh day of March, 1991. CATCHWORDS: Practice - Representative action wrongly brought - Leave given to persons to be joined as plaintiffs - Whether persons wrongly represented could be joined as plaintiffs - whether joinder should be permitted where claims may be statute barred. Counsel: J. Douglas Q.C., P. Freeburn, for the Appellants (Defendants) F.L. Harrison Q.C., R.J. Douglas, for the Respondents (Plaintiffs) Solicitors: Messrs. Fletcher & Cross for the Appellants Messrs. Bowdens McCafferty Waters & Ward for the Respondents Hearing dates: 20-24th September, 1990. -- 16 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4778 of 1988 BETWEEN: IAN DOUGLAS CAMERON, GWENDOLINE MARGARET EMELINE CAMERON. CYRIL NAUSBAUM, LIAPA PTY. LTD. , REES FREDERICK ROWE, NOLA MARION ROWE, GEOFFREY KERSHAW. PATRICIA KERSHAW. TREVOR WILLIAM SHAW. LORRAINE CLARE SHAW, BLANCHE ABRAHAMS. BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) Respondents - and - NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T. & G. MUTUAL LIFE SOCIETY LTD.) (First Defendant) - and - GRAHAM EVANS & CO. (OLD) PTY. LTD. (Second Defendant) COMALCO FABRICATORS LIMITED (Third Defendant) - and - THE DAVIS HEATHER GROUP (NSW) PTY. LTD. (Fourth Defendant) JUDGMENT - RYAN J, Delivered the Seventh day of March, 1991. A writ was issued on 22nd December, 1988 which named as plaintiff twelve individuals and a company "on behalf of and for the benefit of themselves and the other proprietors of lots in building units plan No. 5451". It named National Mutual Life Association of Australasia Ltd. as first defendant, and three companies respectively as second, third and fourth defendants. A notation on the writ stated that "the plaintiffs' claim on Appellant Appellant Appellant Appellant -- 17 of 32 -- 2 behalf of all plaintiffs who purchased lots in Building Units Plan No. 5451 from the First Defendant or T. & G. Mutual Life Society Ltd. against the first defendant for damages for breach of the contract pursuant to which such plaintiff purchased such lot, interest pursuant to the Common Law Practice Act (as amended) and costs. The plaintiffs' claim against all defendants for damages for negligence, interest pursuant to the Common Law Practice ACt (as amended) and costs". A statement of claim was delivered on 26th July, 1989. It alleges that the plaintiffs sued on behalf of and for the benefit of themselves and the other proprietors of lots in Registered Building Units Plan No. 5451 ("the plan"). The plan was registered under the Building Units and Group Titles Act 1980 on 23rd December, 1982. It relates to a residential unit block situated at Surfers Paradise. The unit block was constructed pursuant to an agreement entered into by T. & G. Mutual Life Society Ltd. (T. & G. ) with the second defendant. An order of the Federal Court of Australia made on 24th March, 1983, had the consequence that any cause of action which had accrued or would accrue in favour of any of the proprietors against T. & G. in consequence of the allegations in the statement of claim was enforceable against the first defendant. Prior to, during the course of and, after construction of the unit block, the T. & G. sold lots in the plan in respect of the unit block to purchasers. After construction of the unit block, the first defendant sold lots in the plan to purchasers. Annexed to the statement of claim is a list (Annexure A) naming the persons who purchased lots in the plan from T. & G. and the date of purchase, and a -- 18 of 32 -- 3 list (Annexure B) naming the persons who purchased lots in the plan from the first defendant on the dates referred to in the annexure . : It is alleged that the second defendant was a builder. The third defendant was a manufacturer and installer of window and door fittings in multi-storeyed residential unit dwellings. The fourth defendant carried on the practice of architecture. Prior to and during the course of construction the fourth defendant produced drawings and details detailing the construction profile and details required in respect of the construction and installation of the fittings. The fittings were constructed and installed in the unit block by the second defendant and the third defendant manufactured the fittings. It is alleged that on or about the third and fourth days of June 1983, and the seventh and eight days of April, 1984, substantial water ingress occurred in the unit block through the fittings in the unit block. It was caused by the fittings not being manufactured and constructed such that they would prevent the penetration of rain and other water to the interior parts of the unit blocks. As a result, each of the proprietors had suffered loss and damage. The damage alleged amounts, according to particulars in a schedule annexed to the statement of claim, to $4,622,430.00. It is divided into an amount of $2,825,000.00 for proprietors works, and $1,797, 330.00 for body corporate works.... It is not particularised in relation to each individual unit. An application was made to a Master on the part of the first and fourth defendants for orders'that the writ of summons and/or -- 19 of 32 -- the statement of claim be struck out, or alternatively that the names of all persons improperly joined as plaintiffs be struck out . Before the Master, the plaintiffs relied upon 0.3 r.10 of the Rules of the Supreme Court. This provides: , "When there are numerous persons having the same interest in the subject matter of a cause or matter, one or more of such persons may. sue, and the Court or Judge may authorise one or more of such persons to be sued, or may direct that one or more of such persons shall defend, in such cause or matter, on behalf or for the benefit of all persons so interested." The conclusion of the Master is expressed as follows: "It ■ seems ; to-: me that the purchasers and the proprietors do not have the same interest in the subject matter of the proceedings, since the interest of the purchasers is based in contract, and that of . the proprietors upon breach of duty. While, therefore, the possibility of representative proceedings may exist for thebenefit of the proprietors it seems to me that it does not for the benefit, of the purchasers ... it appears that not all the purchasers are direct purchasers from either T. & G. or the first defendant, and the terms of particular contracts may differ. There may be rights conferred : upon some purchasers under their contracts which are not conferred upon others, and there may be defences available to the first defendant in relation to some of the transactions of sale and purchase but not in relation to others. No doubt the purchasers could be joined in one action pursuant to 0. 3 r. 1 . Upon the footing that all the named plaintiffs are proprietors of lots in the Building Units plan they may be jointed under 0.3 r. 1. Because the action is * for damages- they are not entitled to sue on behalf of and for the benefit of themselves and the other proprietors of lots in Building Units Plan No. 5451 I therefore order that those words be struck out on the writ and other proceedings in the action. I give leave to the plaintiffs to deliver an amended statement of ■ claim. I order the respondents to pay the costs of the applicants of and incidental to the application to be taxed. Liberty to apply." ■ An appeal was made by the plaintiffs to the Chamber Judge from the order that the words "on behalf of and for the -- 20 of 32 -- 5 benefit of themselves and the other proprietors of lots in Building Units Plan No. 5451" be struck out on the writ and other proceedings in the action and from the order as to costs . The learned Chamber Judge expressed his view as being that "there is not the same interest in the subject matter binding the various unit holders together which would be required in order to justify an action pursuant to 0.3 r.10. Thus I am of the view that the Master's decision was correct." It is clear from this and from the formal order made that the appeal from the decision of the Master failed before the Chamber Judge. He was then asked to give leave to amend the writ and statement of claim to add the names of' the various parties who were represented wrongly by the nominated plaintiffs. His Honour ordered that leave be given to all persons who were as at 22nd December, 1988 proprietors of lots in Building Units Plan No. 5451 and not named as plaintiffs to elect to be joined as plaintiffs in the action by filing in the Registry a written consent to be so joined provided that filing of the consent take place on or before 26th March, 1990 or such extended time as may be allowed by the Judge in charge of the Commercial Causes B List or the Master upon reasonable cause being shown and without prejudice to the rights of he defendants to plead any defence of the Limitation of Actions Act in bar as if each of the plaintiffs had been named as ' a plaintiff at the time when the writ was issued. He further ordered inter alia that the plaintiffs have leave to amend the writ to insert the names of the individual proprietors who so consented. He gave to the plaintiff leave to appeal any or all of his orders. -- 21 of 32 -- 6 The defendants appealed to this Court, asking that the orders made granting leave to persons who elected to be joined as plaintiffs to be so joined and giving leave to the plaintiffs to amend the writ be set aside. Order 86 r.8(1.) provides that subject to Rule 7, any person affected by any order or decision of a Master may appeal therefrom, by notice .in writing, to a Judge in Chambers. Order 86 r.8(6) provides that except by leave of a Judge no appeal shall be from the decision of a Judge under this Rule. In this case, the plaintiffs had appealed from an order of a Master. That appeal had been dismissed. The learned trial judge had given the plaintiffs leave to appeal. Upon dismissal of the appeal, the plaintiffs had sought other orders from the Chamber Judge, and he had made these orders. The appeal to this Court is not from the order of the Master, but from the order made by the Judge after he had dismissed the appeal from the Master. In my opinion, the instant appeal is not rendered incompetent by 0.86 r . 8. In making the order granting leave to amend the writ and statement of claim to add the names of the various parties who were represented wrongly, by the nominated plaintiffs, the learned Chamber Judge relied upon Moon v. Atherton (1972) 2 Q.B. 435. He treated that case as authority for the proposition that where persons are represented by a nominal plaintiff in a representative action, they are parties in the proceedings, and in the event that the nominal plaintiff does not proceed with the action they may ask to be joined, even after the expiry of the limitation period. • -- 22 of 32 -- 7 It was submitted by the appellant that where an action is not a properly brought representative action, as his Honour found, the persons purportedly represented could not have been parties on any view of the writ of summons or the statement of claim. They could not have been bound by. the result. Insofar as the writ of summons purported to be brought on their behalf it was a nullity. Accordingly, they should . not have been treated as if they had been parties from the date of commencement of the action, which, it is asserted is what His Honour did by limiting the defendants' rights to plead the Limitation of Actions Act defence. In Moon v. Atherton, it was not in contention before the. Court of Appeal that the action was properly brought, as a representative action. Denning M.R. observed (at p. 442) that if it were not a proper case for a representative action^ the defendant ought to have applied to stay the action or to strike it out at the initial stage. That is exactly what the defendants did in this case. In a representative action, according to Denning M.R. (at p. 441):- "the [one] person who is named as plaintiff is, of course, a full party to the action. The others, who are not named, but whom she represents, are. also parties to the action. They are all bound by the eventual decision in the case. They are not full parties because they are not liable individually for the costs. That was held by Eve J. in Price v. Rhondala U.D.L. [1923] W.N. 228. But they are parties because they are bound by the result." The respondents are unable to rely on that decision to establish that the persons to whom His Honour . gave leave to be joined were already parties. Nor can they rely for that purpose on the definition of "party" in s. 1 of the Judicature Act 1876. -- 23 of 32 -- 8 The persons in question were not "served with notice of or attending any proceeding although not named on the record". Accepting, as I do, that the persons on whose behalf the action purported to be brought were not parties, the question arises as to the effect of the writ of summons. As already mentioned, it was submitted on behalf of the appellants that insofar as the writ purported to be brought on their behalf it was a nullity. For that proposition, reliance was placed on Hilton v. Sutton Steam Laundry [1946] K.B. 65, and Austin v. Hart [1983] 2 A.C. 600 at p. 647-648. There is authority referred to in those pages in Austin v. Hart that proceedings are a nullity unless the plaintiff is entitled to sue at the date of the writ. Entitlement to sue at the date of the writ is riot the issue here. In-my opinion, the persons other than the named plaintiffs who fell within the description "the other proprietors of lots in Building Units Plan No. 5451" were persons who were improperly joined in the writ as plaintiffs. The improper joinder of persons in a writ does not have the consequence that the writ will be set aside as bad; rather, it enables the ' Court or a Judge to order that the names of any persons improperly joined be struck out. That is what happened in this case, and there is no appeal from the order of the Master or the Chamber Judge to that effect. The question' next to be considered is whether His Honour was empowered to make the order granting leave to amend the writ and statement of claim to add the names of the persons who were wrongly represented. The answer-involves the examination of two matters. The first is whether these persons could be joined as -- 24 of 32 -- 9 plaintiffs. The second is whether, if they could be so joined, an amendment should be allowed permitting the joinder. Order 3 r . 1 provides that all persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may be joined in an action as plaintiffs, provided that the case is such that if such persons brought separate actions some common question of law or fact would arise. In Stroud v. Lawson (1898) 2 Q.B. 44, Vaughan Williams L.J. stated that the object of the corresponding English rule, 0.16, r.1, as it . had . been amended following the decisions in Smurthwaite v. Hannav [1894] A.C. 494 and Carter v. Rigby & Co. (1896) 2 Q.B. 113, was to facilitate the joinder of different causes of action and to allow plaintiffs to join different causes of action where under the old rules, they could not do so. There were two conditions subject to which joinder was allowable, namely there must be a common question of law or fact, and the right to relief must arise from the same transaction or series of transactions. In relation to the second of these conditions he said (at p. 545): "I do not think that the rule means that the whole of a transaction must be involved in each of the causes of action joined. I think that, if there was a transaction or series of transactions in respect of which one plaintiff was interested up to a certain point and other plaintiffs were interested, not only up to that point, but in respect of the entire transaction or series of transactions from beginning to end, under this rule they might join their separate causes of action in one action, because there would be one transaction or series of transactions in respect of which the various plaintiffs all claimed a right to relief. , Their remedies or damages might be different, -- 25 of 32 -- 10 but they would. be claiming relief in respect of the same transaction or series of transactions." This statement was cited with approval by Mason J. (as he then was) in Payne v. Young (1980) 145 C.L.R. 609 at p. 615. Mason J. added the comment that "the rule may well authorise the joinder of separate causes of action accruing to various plaintiffs against different defendants so long as the causes of action arise out of the same transaction or series of transactions" . In Bendin v. Anson [1936] 3 All E.R. 326, Lord Wright M.R. said in relation to 0.16, r.1 (at p. 330): "The word 'transaction', I think, necessarily means .. an act, the effect of which extends beyond the agent to other persons ... It seems to have been used in the first instance rather with reference to cases in which there was something in the nature of a contractual relation, . or some relation of that nature between parties, but it has quite clearly been extended from that more limited connotation." .. In the instant case, the plaintiffs have in common the fact that they . are all- proprietors of lots in a residential unit block. They obtained their entitlement in various ways: as original purchasers from T. & G. or the first defendants in which the assets of T. & G. vested pursuant to an order of the Federal Court of Australia; or, it appears, as subsequent purchasers from -original purchasers.. Those proprietors who purchased their lots from T. & G. or the first defendant claim damages for breach of contract from the first defendant. All the .proprietors claim damages for negligence against each of the defendants. It is clear that if each of the proprietors brought separate actions, common questions of law or fact would arise. I consider also that the claim of each of the proprietors -- 26 of 32 -- 11 n O o u to relief arises out of the same transaction or series of transactions. This would consist in the construction of the unit block pursuant to an agreement between T. & G. and the second defendant; the preparation of plans and specifications for the construction of the unit block and the supervision of construction by the fourth defendant; the construction and the installation of fittings manufactured by the third defendant in the unit block; and the sale of the individual units to purchasers. The joinder of the causes of action, whether they arise in contract or in tort, is authorised as the relief claimed is in respect of or arising out of this particular series of transactions for the construction of the unit block and the sale of units in the block. I turn now to the question whether it was correct to make an order permitting the joinder in the circumstances. Jurisdiction to make that order was, I consider, conferred by 0.3 r. 11 . It was not a case where an amendment ought be made under 0.32 r.1(3) on the ground that the parties were mistakenly described. There was no misdescription of the parties in the writ or statement of claim. The case is one where leave has been given for persons who were not parties to be added, and the question is whether the jurisdiction was properly exercised when the claims of some unit owners would probably have been barred had they been commenced at the date of the order made on 5th March, 1990, but might not have been so barred had they been commenced on 22nd December, 1988, the date of the original writ. In the statement of claim, the damage is alleged to have occurred in June, 1983 and April, 1984. -- 27 of 32 -- 12 In Lynch v. Keddell (No. 2) (1990) 1 Qd.R. 10, it was said (at p. 12) that "it has become established that an addition of parties or ah amendment of proceedings setting up a new cause of action will not ordinarily be ordered if the effect is to deprive a person of an accrued right to plead the statute of limitations". It has been a settled rule of practice since Weldon v. Neal (1887) 19 Q.B. 394 that an amendment will not be allowed to set up a cause of action which is barred, at the time of the amendment, by a statute of limitation, except in "very peculiar circumstances". The rule has been applied to applications to join or substitute parties or to sue parties in a different capacity. See the review of the cases in McGee v . Yeomans (1977) 1 N.S.W.L.R. 273 at p. 277. In my opinion, the question which must be considered is whether special circumstances exist to permit the addition of new plaintiffs out of time. I consider that they do. ' The defendants have been aware, since the date of issue of the writ, that claims based on contract and on tort were being asserted against them, and that those claims purported to be made on behalf of all the proprietors. The use of a representative procedure instead of the joinder of their claims by the proprietors was an irregularity which could be and was cured by the subsequent application to the Chamber Judge. No injustice would be done to the defendants in the circumstances by correcting that irregularity and permitting proceedings to continue against them on the proper basis. I would dismiss the appeal with costs. -- 28 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4778 of 1988 Before the Full Court Mr. Justice-McPherson Mr. Justice Derrington Mr. Justice Moynihan BETWEEN: AND: AND: AND: AND: IAN DOUGLAS CAMERON, GWENDOLINE MARGARET EMELINE CAMERON. CYRIL NAUSBAUM, LIAPA PTY . LTD . , REES FREDERICK ROWE , NOLA MARION ROWE, GEOFFREY KERSHAW. PATRICIA KERSHAW. TREVOR WILLIAM SHAW. LORRAINE CLARE SHAW. BLANCHE ABRAHAMS. BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) Respondents NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T. & G. MUTUAL LIFE SOCIETY LTD.) (First Defendant) Appellant GRAHAM EVANS & CO . ( OLD .) PTY . LTD . (Second Defendant) Appellant COMALCO FABRICATORS LIMITED (Third Defendant) Aptfellant THE DAVIS HEATHER GROUP (NSW) PTY. LTD. (Fourth Defendant) Appellant JUDGMENT - MOYNIHAN J. Delivered the 7th day of March, 1991 -- 29 of 32 -- 2 Counsel : Solicitors: Hearing Dates : J. Douglas Q.C. with P. Freeburn for . the Appellants (Defendants) F.L. Harrison Q.C. with R.J. Douglas for the Respondents (Plaintiffs) Messrs. Fletcher & Cross for the Appellants Messrs. Bowdens McCafferty Waters & Ward for the Respondents 20th - 24th September, 1990 -- 30 of 32 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4778 of 1988 BETWEEN : IAN DOUGLAS CAMERON. GWENDOLINE MARGARET EMELINE CAMERON. CYRIL NAUSBAUM. LIAPA PTY. LTD.. REES FREDERICK ROWE. NOLA MARION ROWE. GEOFFREY KERSHAW. PATRICIA KERSHAW. TREVOR WILLIAM SHAW. LORRAINE CLARE SHAW. BLANCHE ABRAHAMS. BARBARA GRACE SPROULE and BARRY JAMES SPROULE on behalf of and for the benefit of themselves and the other proprietors of Lots in Building Unit Plan No. 5451 (Plaintiffs) Respondents AND: NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (formerly T. & G. MUTUAL LIFE SOCIETY LTD.) (First Defendant) Appellant AND: GRAHAM EVANS & CO. ( OLD. ) PTY . LTD . (Second Defendant) Appellant AND: COMALCO FABRICATORS LIMITED (Third Defendant) Appellant AND: THE DAVIS HEATHER GROUP (NSW) PTY. LTD. (Fourth Defendant) Appellant JUDGMENT - MOYNIHAN J. Delivered the "/ jJL day of 1991 I have had the advantage of considering the reasons prepared by my brothers the Senior Puisne Judge and Ryan J. In the light of their respective analyses of the issues for determination on -- 31 of 32 -- 2 this appeal and the circumstances which give rise to it it is unnecessary for me to undertake a separate exposition in respect of those matters. The chamber judge, having upheld a decision of the Master that the representative action was improperly brought, gave leave to amend the writ and statement of claim to add the names of the non-nominated parties who the nominated parties sought (improperly in the event) to represent. The essence of the appellant's complaint against this order was that the learned chamber judge should not, in the absence of special circumstances, to have permitted the joinder of the previously unnamed plaintiffs at a date when their claims might have become statute barred. I agree that for the reasons given by my learned brothers the unnamed plaintiffs in the improperly brought representative action were not parties to that action. For the reasons given by McPherson S.P.J. I am however inclined to the view that the action was "brought" on behalf of the unknown but purportedly represented parties from the time of its institution. It follows that I would be content to dispose of the matter on the basis upon which it is disposed of by McPherson S.P.J. In any event as Ryan J. demonstrates the circumstances provide ample justification for the order of joinder made by the learned judge below. It follows that I agree that the appeal should be dismissed with costs. -- 32 of 32 --