Australia, Nov. 12 -- The Federal Court of Australia issued the following judgement on Nov. 7:

1 This is the fifth judgment I have delivered in relation to this proceeding: see Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited [2022] FCA 1243; (2022) 165 ACSR 550; Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited (No 2) [2023] FCA 899; Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited (No 3) [2023] FCA 1329; Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited (No 4) [2024] FCA 280. It assumes familiarity with, and adopts the definitions used in, my earlier judgments.

2 By way of brief background, this class action was commenced by MPG as the representative applicant in May 2022. The first respondent, VAH, and the second and third respondents (Director Respondents) have eventually given standard discovery pursuant to orders made in July 2023, with VAH serving a revised verified list of documents in July 2024. In the same month, leave was given to MPG to file and serve a further amended statement of claim (FASOC) and further amended originating application (although MPG was not then able to determine the precise nature and extent of the amendments it intended to make).

3 What presently matters is that without undue delay, and following completion of the process of inspecting discovery, MPG seeks, among other things, an order that Velocity Rewards Pty Limited (as trustee for the Loyalty Trust) (VRPL) be joined to the proceeding as the nineteenth respondent.

4 MPG also sought an order to expand the class pursuant to s 33K of the FCA Act. This was opposed but this order was made for reasons disclosed on the transcript and will not be referred to further in these reasons.

B THE DETERMINANTIVE ISSUE

5 There was no dispute as to the applicable principles.

6 FCR 9.05 provides that a party may apply to the Court for an order that a person be joined as a party to the proceeding if (among other things) the proposed party is a person "who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid a multiplicity of proceedings": FCR 9.05(1)(b)(iii). It is common ground that the party seeking joinder must establish that it has an "arguable case against the parties proposed for joinder, at least to the standard of being able to resist an application for summary judgment if the relevant persons had been sued in separate proceedings": Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277 (at [23] per Dodds-Streeton J). That standard requires an inquiry into whether the prosecution of the proceeding has no reasonable prospect of success: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (at 139 [52] per Hayne, Crennan, Kiefel and Bell JJ); Revill v John Holland Group Pty Ltd [2020] FCA 1633 (at [21] per Jackson J).

7 Further, the decision as to whether to join a party is a practice and procedure decision and the starting point in exercising the power must be the statutory charge in s 37M(3) of the FCA Act: that is, the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

*Rest of the document and Footnotes can be viewed at: (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca1293)

Disclaimer: Curated by HT Syndication.