Payne v Young [1980] HCA 54

High Court of Australia Aickin J. Barwick C.J. Stephen, Mason and Murphy JJ. Payne v Young

ORDER Amend writ by striking out the names of all plaintiffs save the sixth named plaintiff, George Weston Foods Ltd. and the seventh named plaintiff, Tip Top Abattoirs Pty. Ltd. Sixth named plaintiff to have leave to amend the statement of claim generally. Reserve liberty to apply to all parties generally. Plaintiffs (including those struck out) to pay the applicants' costs and the costs of the other defendants. Certify for counsel for the applicant and counsel for the plaintiffs. Appeal dismissed with costs. 1979, Aug. 30 Aickin J.

In this matter I have concluded that the application should be allowed but I think it convenient that I should read my reasons for arriving at that conclusion. The first point which arises is whether the plaintiffs numbered 1 to 5 and 7, using those numbers as what I call the amended numbers, are properly joined pursuant to the provisions of O. 16, r. 1. It is clear that there is a common question of law within sub-r. (1) (b) but sub-r. (1) (a) requires that there must also be a right to relief in respect of, or arising out of the same transaction or series of transactions.

In the statement of claim the various plaintiffs make a common claim against all the defendants concerning the invalidity of the regulations. Each plaintiff, however, goes on to make an individual claim against one defendant only for the repayment of fees paid to that defendant. Thus each relevant defendant has only a single claim made against it for repayment of money paid under compulsion or paid under a mistake of law.

I do not think it can be said that the claims for sums of money are for relief in respect of or arising out of the same transaction or series of transactions. It is true that it has been held that the rules should be construed in a liberal sense so as to permit joinder of parties wherever reasonably practicable (see Re Beck [1] and Payne v. British Time Recorder Co. [2] ). The most that can be said here is that the claims arise out of similar transactions or several series of similar transactions. I do not think the rule can be extended to cover such a case. Therefore I am satisfied that the case does not fall within O. 16, r. 1 and that under O. 16, r. 4 the names of the parties improperly joined should be struck out.