Proceedings often begin with the wrong people on the record — someone essential is missing, or someone irrelevant has been sued. Order 5 Rules 8 to 11 of the National Court Rules 1983 supply the cure.
Order 5 Rule 8
(1) Where a person who is not a party —
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.
(2) A person shall not be added as plaintiff without his consent.
(3) Where a person not a party to proceedings for possession of land is in possession (by himself or by a tenant) of the whole or any part of the land, the Court, on application by him, may order that he be added as a defendant.
The outsider applies. A person who is not a party but who has an interest may apply to be joined. This is the ordinary route for an intervener.
A party applies. A defendant who says “you have sued the wrong company — the contract was with the parent” may apply to have the parent added.
The Court acts of its own motion. The Court need not wait to be asked. It may add a party itself where the dispute cannot otherwise be completely determined.
Anyone actually in possession of land the subject of a possession proceeding may apply to be added as a defendant — whether or not the plaintiff wants them there. Where a claim for possession is made against named occupiers but others are living on the land, this is how they get a hearing.
Customary land disputes are a different matter again: they go first to mediation and the Local Land Court under the Land Disputes Settlement Act (Chapter 45), not to the National Court.
Order 5 Rule 9
Where a party —
(a) has been improperly or unnecessarily joined; or
(b) has ceased to be a proper or necessary party,
the Court, on application by any party or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings.
Both rules give the Court power to act on terms. A defendant wrongly joined and put to the expense of engaging lawyers will ordinarily be released with costs against the plaintiff who joined them. See costs.
Removal is not the same as dismissal. A party removed under Rule 9 was never properly there; the proceeding continues against the rest.
Procedure
- File a notice of motion in the existing proceeding. Under Rule 8 of the Motions (Amendment) Rules 2005, it must contain a concise reference to the Court’s jurisdiction — here, Order 5 Rule 8 or Rule 9.
- Support it with an affidavit setting out who the person is, what their interest is, and why the dispute cannot be effectually determined without them (or why they are unnecessary).
- Serve it on every party. Where an outsider applies to be joined, serve all parties; where a party applies to add an outsider, serve the outsider as well.
- Obtain consent if the person is to be added as a plaintiff — sub-rule (2) is mandatory. If they will not consent, Rule 3(1)(b) requires them to be made a defendant instead.
- Ask for consequential orders — amendment, service, time to file a notice of intention to defend.
The listings mention expressly considers joinder of necessary parties and causes of action. Where the point is uncontroversial, raising it at a directions hearing is quicker and cheaper than a formal motion.
Rule 11 — further conduct
(1) Orders for the further conduct of proceedings may include orders relating to (a) service of the order and other documents; (b) amendment; (c) appearance of added parties; and (d) substitution of one party for another.
(2) Where a party is substituted, all things done before the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old — but notice of intention to defend by the old party shall not dispense with notice of intention to defend by the new.
(3) Subject to sub-rule (2), where a party is added, the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended so as to add him.
Adding a defendant does not relate back to the original filing date. As against the added party, the proceeding starts on the date of the amendment.
So if the limitation period under the Frauds and Limitations Act 1988 has expired between the writ and the joinder, the newly added defendant has a limitation defence the original defendant does not.
Note the contrast with substitution under sub-rule (2), where earlier steps do carry over. Whether an order is one of addition or substitution can therefore be decisive — and it is worth asking for the right one.
Where the State is to be added, remember the separate six-month section 5 notice requirement under the Claims By and Against the State Act 1996.
Rule 10 — assignment and transmission
Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties.
It may act on application by a party, by the person to whom the interest passes, or of its own motion. This covers a company that assigns a debt mid-proceeding, land that changes hands, and a business sold as a going concern. Death and bankruptcy are dealt with separately — see what happens if a party dies.
Sources
- National Court Rules 1983 — O 5 rr 3, 7–11; Motions (Amendment) Rules 2005 r 8
- Frauds and Limitations Act 1988
- Claims By and Against the State Act 1996 — s 5
- Land Disputes Settlement Act (Chapter 45)
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.