Tozer v The State [1978] PGNC 49; [1978] PNGLR 150 (12 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 150 - Robert Tozer v The State 

[1978] PNGLR 150

N132

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ROBERT TOZER

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

FIRST DEFENDANT

PORT MORESBY CITY COUNCIL

SECOND DEFENDANT

CYRIL HECTOR WHITBURN

THIRD DEFENDANT

Waigani

Pritchard J

21 March 1978

12 May 1978

PRACTICE AND PROCEDURE - Parties - Joinder of plaintiff - Principles generally - Power discretionary - Action for negligence - Whether driver of one vehicle may be joined with driver of another - Whether “same transaction or series of transactions” - National Court Rules O. 3 r. 1[cclvi]¹ and 11.[cclvii]²

Order 3, r. 11 of the National Court Rules empowers the Court to join the names of persons as plaintiffs in any cause or matter, and O. 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 the case is such that if such persons brought separate actions some common question of law or fact would arise.”

In proceedings by a car driver claiming damages arising out of the negligence of the third defendant in the driving of his motor vehicle (in the wrong direction along a one way street allegedly at the direction of the first and/or second defendant), the plaintiff filed notice of discontinuance against the third defendant, and sought pursuant to O. 3, r. 11 of the National Court Rules to have him joined as a plaintiff in the action. The application was not opposed, though it was submitted that the joinder could cause confusion as both the first and second defendants would be seeking contribution from the third defendant in the event of judgment being given against either or both.

Held

N1>(1)      The Court’s jurisdiction under O. 3, r. 11 of the National Court Rules to join parties to proceedings is a discretionary one.

Gillespie Ltd. v. Robinson [1930] Q.W.N. 21 referred to.

N1>(2)      The words “same transaction or series of transactions” in O. 3, r. 1 of the National Court Rules can apply to tortious situations:

Bendir and Ors. v. Anson [1936] 3 All E.R, 326 at p. 330, and

Smith v. Foley [1912] VicLawRp 44; [1912] V.L.R. 314 referred to, but causes of action for negligence of the type claimed cannot be said to arise out of “the same transaction” within the meaning of the rule.

N1>(3)      In exercising the discretionary power under O. 3, r. 11 of the National Court Rules, to join a person as plaintiff in proceedings, it is relevant, inter alia, to consider whether the plaintiff may be embarrassed by a defendant setting up a counterclaim against the co-plaintiff, and whether there is any dissension or conflict of interests between plaintiffs.

N1>(4)      In the circumstances with a prospect of conflict obvious, the application should in the exercise of the court’s discretion, be refused.

Principles for exercise of discretion as to joinder of plaintiffs generally discussed.

Application

This was an application made pursuant to O. 3, r. 11 of the National Court Rules, seeking to add a plaintiff in proceedings claiming damages for negligence, arising out of a motor vehicle accident.

Counsel

G. B. Evans, for the applicant/plaintiff.

T. L. Reiner, for the respondent/first defendant.

I. R. Molloy, for the respondent/second defendant.

Cur. adv. vult.

12 May 1978

PRITCHARD J: This is an application by the plaintiff to add the third defendant, against whom he has already filed notice of discontinuance, as a plaintiff in this action. The affidavit of the plaintiff’s solicitor filed in support of the application discloses that after the third defendant was served with the writ herein he approached the plaintiff and his solicitors and after conferences between them and consideration of competing questions of liability the decision to discontinue was made. The third defendant has now instructed the plaintiff’s solicitors to commence an action against the first and second defendants and to attempt to have that action consolidated with this one or alternatively to have him joined as a plaintiff in this present action. It is this second alternative that this present application seeks.

The statement of claim on the original writ claims that the plaintiff suffered loss and damage arising out of the negligence of the first and second defendants in or about the direction of traffic and out of the negligence of the third defendant in the driving of his motor vehicle on or about 11th September last.

I have asked counsel to inform me of the background against which this cause of action arose. It appears that on the date mentioned the vehicles of the plaintiff and the third defendant had a head-on collision on a bend in Le-Hunte Road, Port Moresby. This road is a dual carriageway and is a one-way street out-bound from the Port Moresby town area between Ela Beach and Koki. The in-bound street, also one way and a dual carriageway, is Healy Parade which runs from Koki to Ela Beach along the waterfront, below and mostly out of sight of Le-Hunte Road. The brief allegation against the first and second defendants is that they were negligent in closing Healy Parade to traffic and diverting in-bound traffic, including the third defendant, along Le-Hunte Road thereby bringing about the accident.

The application is made under O. 3, r. 11 of the National Court Rules which (where relevant) reads:

“The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or Judge to be just, order ... that the names of any person who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added either as plaintiffs or defendants.”

Counsel for the second defendant did not oppose the application but submitted that the joinder sought could cause confusion as his client would be seeking contribution from the third defendant should any judgment be obtained by the plaintiff against his client, the City Council. Counsel for the first defendant likewise did not oppose the application but agreed with the submission of counsel for the second defendant and confirmed that his client, if unsuccessful, would also be seeking contribution from the third defendant. The position could arise that the third defendant, if joined as a plaintiff, could be a third party as well.

Mr. Evans, counsel for the plaintiff (and in fact for the third defendant) submits that as the claim of the plaintiff and the intended claim of the third defendant arise out of the one accident it is desirable that the matter be litigated once only and any difference in the result of each claim could adequately be dealt with by the trial judge, who in addition would have a discretion as to costs if such a need did arise.

I do not think that the problem is as simple as that. There is no doubt that the Court’s jurisdiction in matters of this type is a discretionary one. Gillespie Ltd. v. Robinson[cclviii]³.

N1>The general principle upon which parties may commence action jointly is set out in the first paragraph of O. 3, r. 1 which reads:

“Persons claiming jointly, severally, or in the alternative may be plaintiffs. 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.”

The words “same transaction or series of transactions” have been considered judicially on several occasions. In Birtles v. Commonwealth of Australia[cclix]⁴ there is such a discussion but in the main it relates to the question of joint defendants. So far as joint plaintiffs are concerned a more valuable discussion of the meaning of the words occurred in the Court of Appeal in Bendir and Ors. v. Anson[cclx]⁵. That was an appeal against an order made by Farwell J that one of two pairs of plaintiffs elect which of them should proceed with the action. They were owners and occupiers of various buildings suing the builders of a new hotel in respect of interference with light to their premises which the new building would cause. At p. 330 Lord Wright M.R. (in discussing the English Rule, which is not worded exactly the same as our own, but which for all practical purposes is the same) said:

“The language of this rule cannot be regarded as very well chosen. The phrase ‘transaction or series of transactions’ is not a term of art, and I cannot find in the authorities any precise definition of the exact scope of those words. But it is quite clear that the tendency of the decisions has been to give a literal interpretation to the rule and to apply it in any cases where you have a claim to relief by more than one person in respect of what has been treated as the effect of the words ‘transaction or series of transactions, whether the relief claimed is jointly, severally, or in the alternative.’ The word ‘transaction’, I think, necessarily means an act, the effect of which extends beyond the agent to other persons. For instance, to take this particular case, the building of the premises by the defendant is an act which from one point of view is limited to the builder and to the area covered by the premises; but its effects on other premises extend also to those premises in respect of which a nuisance or an interference with an easement may be created by the building. In that sense the building of the premises may be regarded as a transaction, and I find on the authorities that that view seems to have been taken. As I have already said, I do not think that the word is very happily chosen. 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.”

His Lordship went on to discuss the facts of the matter and decided that in the exercise of the discretion vested in the court on applications of this type the joinder of the two plaintiffs would produce a condition of things very likely to embarrass the judge. His Lordship held that it was not necessary to decide whether the case fell within the rule or not. The other two members of the court agreed.

It is perhaps unnecessary for me to consider just how far the word “transaction” can be applied to a motor vehicle accident. The rule certainly applies to some tortious situation. For example in Smith v. Foley[cclxi]⁶ it was held in actions for libel and slander the words “same transaction or series of transactions” must be read as meaning “same publication or series of publications”.

N1>Without at this point attempting to define the extent of the causes of action to which the rule applies, I would turn to the practical considerations upon which I believe the court can rely in the exercise of its discretion. One excellent guide is set out in Ritchie, Supreme Court Procedure N.S.W. at p. 30 of the Supreme Court Rules where in par. (8.2.3.) the learned author says:

“As opposed to the saving of costs by having the one action the following must be considered:

(a)      All plaintiffs must act by the same solicitor and counsel.

(b)      Accordingly there is no room for dissension or conflict of interests between plaintiffs.

(c)      Co-plaintiffs may be liable for the increased costs occasioned by adding an unsuccessful plaintiff.

(d)      A solvent plaintiff is at risk if he joins with a practically insolvent plaintiff in speculative proceedings.

(e)      A cross claim may be brought against one only of co-plaintiffs.

(f)      A co-plaintiff may be interrogated or have to give discovery.

(g)      A co-plaintiff may cause embarrassment through non-compliance with directions of the Court.

(h)      Costs will usually be increased if the proceedings become more complicated by the joinder.”

A number of the above considerations could well apply to this present case. Perhaps more to the point I refer to the English Supreme Court Practice (1976 vol. 1 p. 170) where at par. 15/4/3 it is said:

“A plaintiff may be embarrassed by defendant setting up a counter-claim against his co-plaintiff.”

In that same paragraph there is a more detailed discussion and a number of authorities cited for several of the matters set out above as contained in Supreme Court Procedure N.S.W.

Here, it is expressly stated that contribution would be sought against the third defendant by both the first and second defendants if the plaintiff succeeded. I can for example imagine the proposition being put to the third defendant, that knowing he was travelling in the wrong direction on a one-way street he should have been driving very slowly and sounding his horn when approaching corners. The prospect of conflict between him and the plaintiff if this situation arose is obvious. The conflict could well arise at the interrogatory stage.

In my opinion causes of action for negligence of this type do not arise out of “the same transaction” within the meaning of the rule. Even if they did, for the reasons I have above referred to, in the exercise of my discretion I would refuse this application.

I venture the opinion that until both actions are ready for trial, with pleadings, discovery, interrogatories, particulars and other matters attended to, even an application for consolidation would be premature. When all possibilities of problems such as I have posed above have been negatived, it would I believe, be desirable that this matter be the subject of a hearing once only. However, the position would have to be looked at as it exists at that time.

In view of the fact that this application was not opposed I order that the costs of this application be the first and second defendants’ costs in the cause.

Application refused.

Solicitor for the applicant/plaintiff: Gadens.

Solicitor for the first respondent/defendant: Charles Maino-Aoae, State Solicitor.

Solicitor for the second respondent/defendant: Craig Kirke & Wright.r

BR> R>

[cclvi]<infra p. 152.

[cclvii]Infra p. 152.

[cclviii][1930] Q.W.N. 21.

[cclix][1960] V.R. 247.

[cclx][1936] 3 All E.R. 326.

[cclxi][1912] VicLawRp 44; [1912] V.L.R. 314.