Most disputes involve more than two people. Order 5 Division 1 of the National Court Rules 1983 governs when several plaintiffs may sue together and several defendants be sued together.
Order 5 Rule 2
Two or more persons may be joined as plaintiffs or defendants in any proceedings —
(a) where —
(i) if separate proceedings were brought by or against each of them, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceedings, 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 to do so.
Both sub-paragraphs must be satisfied. A common question alone is not enough; a common transaction alone is not enough. If either limb fails, joinder is by leave only, under paragraph (b).
Contrast Rule 1, which lets a plaintiff join unrelated causes of action against one defendant with no common-question test at all. The Rules are stricter about dragging in extra people than about piling up extra claims.
Sub-paragraph (ii) expressly contemplates alternative claims. So a plaintiff who does not know which of two defendants is liable — the employer or the employee, the principal or the agent, the driver or the owner — may sue both in the alternative and let the Court decide.
This is a common and proper use of the rule. It is not an admission of uncertainty that counts against the plaintiff; it is what the rule is for. See pleading in the alternative.
Rule 3 — when joinder is compulsory
(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him —
(a) all persons so entitled shall be parties to the action; and
(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.
(2) Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.
Two people hold a joint right — joint tenants of land, joint parties to a contract, joint account holders. One wants to sue; the other will not join in.
Rule 3(1)(b) is the answer: the reluctant person is made a defendant. They are before the Court, bound by the outcome, and the plaintiff is not stopped by their refusal.
Under Rule 8(2), a person shall not be added as plaintiff without his consent — which is why the rule sends them to the other side of the record rather than adding them as an unwilling plaintiff.
Rule 5 — common liability
(1) Where relief is claimed against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant.
(2) Where persons are jointly, but not severally, liable under a contract, and relief is claimed against some but not all of them, the Court may, on the application of any defendant, stay the proceedings until the other persons so liable are added as defendants.
| Liability | Must all be sued? | Rule |
|---|---|---|
| Joint and several | No — sue any one of them for the whole | r 5(1) |
| Joint only (contract) | In substance yes — a defendant may obtain a stay until the others are added | r 5(2) |
| Several only | No — each is separately liable for their own share | — |
| Joint entitlement (plaintiffs) | Yes — all must be parties; non-consenters become defendants | r 3 |
Concurrent tortfeasors are ordinarily jointly and severally liable, so a plaintiff may sue whichever is worth suing. Contribution between wrongdoers is governed by the Wrongs (Miscellaneous Provisions) Act (Chapter 297), and a defendant who wants to bring another wrongdoer in may do so by third party notice under Order 8 Division 3 rather than by joinder.
Rule 6 — separate trials
Where any joinder of parties or causes of action may embarrass or delay trial of the proceedings or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
Rule 6 is the answer to over-enthusiastic joinder. A defendant joined in a sprawling proceeding, with no real connection to most of the evidence, applies under Rule 6 for a separate trial — or for the proceeding against them to be dealt with separately.
The Court may equally make such other order as it thinks fit, which includes removing a party under Rule 9 where they have been improperly or unnecessarily joined.
Getting it wrong is not fatal
Proceedings shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party, and the Court may determine the issues in dispute so far as they affect the rights and interests of the parties.
Under Rule 11(3), where a party is added, the date of commencement of the proceedings so far as concerns him is the date the amended originating process is filed. A defendant added after the limitation period has run may have a complete answer.
Joinder is also a standing item at the listings mention, which considers joinder of necessary parties and causes of action.
Sources
- National Court Rules 1983 — O 5 rr 1–11; O 8 Div 3
- Wrongs (Miscellaneous Provisions) Act (Chapter 297)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.