Hunt v Archer

HIS HONOUR: "It is only when caught in the swift, sudden turn of death, that mortals realize the silent, subtle, ever-present perils of life." [1] Life is inherently fragile whether our surrounds bespeak of peril or not. The acute unexpected death of Catherine Henrietta Archer aka Kate (Catherine) on 16 March 2023 at St Vincent’s Hospital, Sydney has been the subject of a Coronial inquiry and had a profound effect upon Catherine’s family [2] .

The applicant, Trevor John De Meric Griffin (Trevor), (her asserted de facto husband) in a related proceeding recounts that he left Catherine at the Hospital in the morning to see a cardiac specialist and following her appointment she called him to collect her at the entrance to the Hospital. On his arrival, she was nowhere to be seen. Following frantic searches including notification to the police, her body was found much later that evening in a cubicle at the Hospital [3] . Catherine had suffered from a serious medical history but Trevor says her death on that fateful day was to him entirely unforeseen, overwhelming him with grief [4] .

It is unnecessary and inappropriate to probe, let alone make any findings regarding the circumstances surrounding Catherine’s death or Trevor’s reaction to it. However, her untimely death prior to that of her mother Miriam Anne Hunt, aka Mim (Miriam) (on 16 May 2024) has been the catalyst that has led to four proceedings in this Court regarding their estates.

Miriam married Ralph Hunt AO (a former deputy leader of the National Party [5] ) who predeceased her, there being 3 children of the marriage namely Catherine, Alistair James Hunt (Alistair) and Alexandria Elizabeth Eunice O’Sullivan (aka Alex Weston) (Alexandria).

Catherine, aged 58 was survived by a daughter, Grace Elizabeth Archer (Grace) from a prior marriage to Doug Archer. Trevor, a professional musician, claims to have been in a de facto relationship with Catherine from about 18 July 2018.

The four related proceedings are this proceeding by Alistair against Grace in respect of Miriam’s estate (2025/00273947 - D&WC proceeding) and the following earlier commenced proceedings:

Broadly speaking, in the FP proceedings there are disputed issues, namely as to

If Trevor is found to be eligible only as a dependent member of a household of which Catherine was a member there would also be a question as to whether there are factors warranting the making of his claim.

Broadly speaking, in the D&WC proceeding, there is a disputed issue as to

For present purposes it suffices to note that Trevor contends that for the purposes of his FP proceeding, he has an interest via the estate size issue which will be impacted by the finding on the debt issue in this D&WC proceeding to which he seeks to be joined.

Trevor’s joinder is staunchly opposed by Alistair. Grace also opposes his joinder.

I have determined that Trevor should be joined to the D&WC proceeding. Alistair’s counsel requested reasons for judgment. My reasons are as follows.

On 11 January 2011, Miriam made her last Will and appointed Alistair as her attorney under an enduring power of attorney (EPOA) [9] .

In October 2015, it appears that Miriam was formally diagnosed with dementia [10] - or at least that was the finding of the NSW Civil & Administrative Tribunal (NCAT).

By January 2016, NCAT found that Dr Nicholas Brennan (Miriam’s geriatrician) had noted that although she had been prescribed with Aricept for two months, it was doubtful she was taking it reliably and had continued to drink alcohol which would have the effect of accelerating her dementia. She required monitoring of the medications and nutrition [11] .

On 10 May 2016, Catherine made her last Will.

On 22 December 2016, Alistair lodged an application with NCAT seeking to be appointed as financial manager for Miriam seemingly on the basis that the EPOA “had been insufficient to protect [Miriam’s] finances” [12] .

On 20 April 2017, NCAT made a financial management order in respect of Miriam, ordering that her estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and appointing Alistair as the financial manager [13] .

On 8 June 2017, NCAT delivered reasons for the making of the financial management orders [14] .

It is unnecessary to make any particular findings in respect of Miriam’s condition. It may simply be noted that NCAT recorded in those reasons that:

Consequent upon Catherine’s death on 16 March 2023, probate of her Will was granted on 2 November 2023 to Grace & Alistair, the named executors. Catherine left her estate to Grace “when she attains the age of twenty-five (25) years”. There is no dispute that Grace is, pursuant to Catherine’s will, entitled to the whole of Catherine’s estate.

On 18 December 2023, Trevor commenced the FP proceeding against Grace and Alistair, the then named executors of Catherine’s estate.

On or about 4 October 2024, following Miriam’s death, Alistair sought probate of Miriam’s Will dated 19 January 2011.

Clause 3 of Miriam’s Will gave her estate on trust for sale and conversion into money, to pay her debts funeral and testamentary expenses and to hold the balance of her residuary estate on trust for such of Alistair, Alexandria and Catherine as survived her and if more than one, in equal shares as tenants in common. Grace became entitled under a form of gift over in the event that any of Miriam’s children predeceased her leaving a child who “survive and attain the age of 25 years”.

Clause 4 of Miriam’s Will is in the following terms

There is no dispute that subject to the operation of clause 4, the deceased’s estate is divided in 3 equal shares between Alistair, Alexandria and Grace as tenants in common.

On 23 October 2024, Alastair signed a renunciation of his position as executor of Catherine's estate due to a conflict of interest [18] .

Probate of Miriam’s estate was granted on 18 December 2024 to Alistair, the named executor. Miriam’s estate (according to the inventory of property) was estimated at $5,631,018.14 (comprising a nursing home bond, monies in Westpac and Macquarie Bank accounts, Macquarie bank term deposits, Vanguard Australian Corp fixed interest deposits, numerous shareholdings and relevantly a loan to Catherine listed as being $872,578.35).

In February 2024, Grace and Alistair swore the administrator’s affidavit in the FP proceeding deposing to the value of the Catherine’s estate as follows [19] .

Mr McDonald (Trevor’s solicitor) deposes that based on the above amounts, if no debt was owed to Miriam’s estate, the value of Catherine’s estate would be between $1,229,940.83 and $1,779,490.83 [20] .

On 29 May 2025, in the FP proceeding, Alistair (then still the second defendant) filed a notice of motion seeking:

The form of cross summons sought interlocutory relief (pursuant to r 7.8 UCPR as indicated above) and final relief (being a declaration that Catherine’s estate owes $484,144.39 to Miriam’s estate and judgment against Catherine’s estate for that amount plus interest).

On 4 July 2025, each of Catherine’s probate proceeding, Miriam’s probate proceeding and the FP proceeding were listed before Lindsay J.

In Catherine’s probate proceeding, Lindsay J relevantly, noting Grace was the sole beneficiary of Catherine’s estate, revoked the grant of probate of her estate to the intent that Alistair would cease to hold the office of the legal personal representative and ordered that Grace be granted probate of Miriam’s unadministered estate, to the extent that it remained unadministered (with consequential orders).

In Miriam’s probate proceeding, Lindsay J pertinently:

In the FP proceeding Lindsay J pertinently:

On 17 July 2025, Alistair commenced a fresh proceeding against Grace in respect of Miriam’s estate (D&WC proceeding) essentially claiming that:

On 14 August 2025, Trevor filed a notice of motion in the D&WC proceeding seeking leave to be joined as a defendant pursuant to UCPR r 6.19 or 6.24 (joinder motion).

On 18 September 2025, Registrar Gerritsen listed the joinder motion for hearing before me on 8 October 2025.

There have been a number of listings before me including on 8 October 2025, 24 November 2025 and 9 February 2026 and I will refer to the transcript of those occasions respectively as T1, T2 and T3. Mr Fernon SC appeared for Trevor, Mr Li appeared for Alistair and Mr Underwood and or Mr Turnbull appeared for Grace.

There was a substantive hearing of the joinder motion on 8 October 2025. I contemplated that clarifying the parties positions as to the construction of clause 4 of the Will may help the parties inter se understand each other’s position regarding the operation of clause 4 and in turn inform the Court as to whether any aspect of their positions might favour or count against joinder of Trevor.

I made a number of notations and adjourned the matter to 24 November 2025 to complete the hearing. I directed the interested parties to provide by 17 November 2025, an outline of their respective contentions as to the proper construction of clause 4 of Miriam’s Will including brief mathematical examples demonstrating the contended practical effect of the operation of that clause.

On 24 November 2025, there was a further listing and hearing before me. I adjourned the matter to before me on 9 February 2026 and made directions including the following:

On 9 February 2026, at the further listing of the matter, I noted the further affidavits that had been filed, oral submissions were completed and I reserved my decision.

For the purposes of the hearing, the parties prepared a Court Book (CB) [21] .

Trevor relied upon affidavits of:

Alistair relied upon affidavits of:

Counsel for the parties helpfully provided written submissions as follows:

Provisionally, Alistair’s belief about clause 4 of the Will is that subject to any ultimate construction by the Court, every dollar recovered by Miriam’s estate from Catherine’s estate will result in a net 33.33 cents gain in the dollar for each of himself and Alexandria [22] .

Concerning the construction of clause 4, each of Mr Turnbull [23] and Mr Fernon SC [24] made reference to the statement of Rich J in In re Tennant; Mortlock v Hawker & Ors (1942) 65 CLR 473 (Re Tennant) at 482 that “The intention of a testator inserting a hotchpot clause in his will is to provide that there should be a fair division amongst his children, and that they shall be equal inter se”.

Mr Li submitted [25]

Mr Turnbull submitted in part that [26]

Mr Fernon SC submitted that clause 4 contains no limitations to the advances that should be added back like those considered in Re Tennant and the clause does not have the effect of creating an alleged debt due and payable to Miriam’s estate by Catherine’s estate but rather an adjustment to the inheritance of the three beneficiaries of Miriam’s estate (being Alistair, Alexandria and Grace) arising from the advances made to Catherine (and Grace). [27]

Based on the written submissions, there was some difference between the positions of the counsel in that Mr Li contends that irrecoverable debts and true gifts are not taken into account for the purposes of the clause [28] and at least in the D&WC proceeding, claims are made on the basis that certain amounts would be recoverable as a debt due by Catherine’s estate or Grace rather than merely as an adjustment [29] .

On the listing on 24 November 2025, it appeared to be the case that counsel agreed that any payments precluded by the Limitation Act would not be taken into account in the hotchpot [30] . The only issue being that on Mr Li’s contentions, it would be necessary to recover amounts from Grace and Catherine’s estate whereas Mr Fernon SC submitted no recovery is required as distinct from an accounting exercise [31] . For his part, Mr Li did not appear to regard the differences being material, although acknowledged that there may be an issue as to how an amount is “notionally taken into account” if there is a dispute as to whether it should be recovered or not [32] .

Mr McDonald states that the alleged debt owed by Catherine's estate to Miriam’s estate has been an issue in the FP proceeding and the subject of much correspondence - including between Mr Duffy (solicitor for Catherine's estate) and Mr McDonald and his employed solicitor Mr Zelinka (on behalf of Trevor) over the period 2 July 2024 through to 16 December 2024 [33] .

On 6 September 2024, Mr Duffy sent Mr McDonald a forensic report from Pitcher Partners, being a lengthy spreadsheet headed "MIM Hunt Loan Kate Archer" concerning the alleged debt and stating that the accountant was still investigating the matter (Spreadsheet) [34] . According to Mr McDonald, the Spreadsheet asserted the alleged debt to be $934,528.42 as at 28 August 2024, with interest accruing at 7.5% daily [35] . The Pitcher Partners report only relates to one of the credit cards in Miriam's name [36] . There are more bank accounts and credit cards to investigate [37] .

For reasons not entirely clear, Pitcher Partners have used compounding interest in the Schedule. Mr Underwood observed that at least on one view having regard to the familial relationship between the parties [38] and the nature of the advances, there is an issue as to whether there should be any interest payable at all [39] .

On 23 October 2024, Grace, in Catherine's probate proceeding swore an affidavit in which she referred to a debt of $729,746.56 disclosed in the executor’s affidavit filed in the proceedings owing to Miriam's estate. Grace noted that the amount of the debt was in dispute [40] .

On 13 November 2024, Mr Duffy on behalf of Grace in the FP proceeding acknowledged that Catherine's estate was indebted to Miriam's estate (seemingly based on the administrator's affidavit) [41] .

On 9 December 2024, Mr Kelly informed Mr Duffy that based on the inventory of property in Miriam’s estate, Catherine’s loan (debt) was $872,538.35 [42] .

On 11 December 2024, there was a mediation of the FP proceeding [43] . The mediation had to be adjourned in circumstances where not only probate of Miriam's estate had not been issued, but the amount of the debt outstanding between Miriam's estate and Catherine's estate could not be determined [44] .

On 17 July 2025, Mr Kelly deposed that the total claimed by Miriam's estate was $598,827.61 ($484,144.39 up to Catherine's death plus $114,683.22 thereafter). He had not at that stage commissioned a forensic accountant report nor sought discovery as to the circumstances surrounding each of the relevant payments said to support the claim. He was hoping at that stage to postpone incurring costs until all reasonable attempts at obtaining an agreed statement of facts or a compromise with Grace (both in her personal capacity, and as executor of Catherine's estate) had been exhausted [45] .

On 14 August 2025, Mr McDonald stated that since the commencement of the FP proceeding, Trevor has been advised 7 different figures for the alleged debt ranging from $460,000 to $1.5 million [46] .

In respect of the credit card indebtedness, it appears the first advancement of monies from Miriam to Catherine occurred on 27 June 2014 [47] . The balance 6 years prior to the commencement of the D&WC proceeding was $442,911.05 [48] .

The amounts claimed in the D&WC proceeding against Grace in her capacity as executor of Catherine’s estate ($484,144.39) but also personally ($114,683.22) were understood by Mr Fernon SC to not contain any interest component [49] .

For the purposes of the joinder motion, I have recited certain details above including findings recorded by NCAT. Further, the following facts are pertinent.

Alistair “does not believe that he has personal knowledge of any, or at least substantially all, of the transactions in which [Catherine] obtained a financial benefit, whether by consent or otherwise, or by loan or otherwise from [Miriam]” [50] .

The best information available to (Mr Kelly and Alistair) on behalf of the estate is the Spreadsheet supplied by Pitcher Partners on 9 July 2025 [51] .

Trevor’s position regarding evidence as to the payments is stated in his affidavit as follows:

Broadly, Trevor’s evidence regarding the matter was summarised by Mr Fernon SC as follows [52]

Alistair’s position in respect of payments from Miriam’s accounts is conveyed in the evidence of Mr Kelly, namely that estate’s current position is that [53] :

Further, Alistair’s position as executor of Miriam’s estate is that any operation of limitation period on recovery is postponed by operation of s 52 Limitation Act by reason of Miriam’s diagnosis of dementia in or around October 2015 [55] .

Trevor’s position as articulated by Mr Fernon SC is that:

Joinder of a person whose interests are directly affected by the orders sought depends on matters of right affecting non-parties which rest on general law principles of natural justice rather than upon rules of Court [60] . One aspect of this is to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard [61] .

The principle that all persons materially interested in the subject-matter of the suit ought generally to be made parties to it so as to settle the controversy by binding those interested to final orders is sourced in the practice of Chancery [62] and is reflected in the current rules of Court (UCPR r 6.24) [63] .

Because the underlying concern is at least based on natural justice, where no prejudice would be suffered by a party not being joined, joinder may be dispensed with [64] .

Further, another reason underlying the principles regarding joinder of parties is sourced in the law’s concern to avoid multiplicity of suits and to achieve finality in litigation. This is voiced in statutory provisions which seek to encourage parties to bring forward all claims they have against one another so that they may be completely and finally determined, and avoiding multiplicity of proceedings [65] and empowering the Court to give such relief as the nature of any case may require with a view to finality [66] . The avoidance of “multiplicity of proceedings” was emphasised by the High Court in John Alexander’s Clubs to be an important consideration in relation to joinder. [67] .

The non-joinder of affected parties to proceedings does not render orders made a nullity. The modern Court rules (sourced in Chancery practice) provide that proceedings are not defeated merely because of non-joinder of any person as a party to the proceedings [68] .

However, despite non-joinder, an affected party who should have been joined is generally entitled to have orders set aside [69] . In fact, McHugh J referred to “the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order” [70] .

Claims for relief are critical (and perhaps decisive) to determining who are proper parties to proceedings [71] .

The UCPR [72] has a wide range of rules which require parties who are proper or necessary to proceedings to be joined, deal with the effect of non-joinder and removal of parties, and permit joinder. There is some degree of overlap in the rules regarding joinder so that the boundary of the rules are not fixed, with there being some common ground where certain parts of some rules may validly operate [73] .

The Court’s power to join parties to proceedings is not exhausted by UCPR rr 6.19, 6.24 and 6.27 nor even necessarily dependent upon it.

For example, there are other statutory provisions and rules which permit joinder in specific cases. The general position in respect of family provision claims is the applicant must only join as a defendant any administrator, unless the plaintiff is the sole administrator of the estate and that other persons are not joined as defendants. Nonetheless there is a power of joinder if there is “sufficient reason for doing so” [74] .

Having said that, the most frequently used UCPR provisions addressing joinder of non-parties to proceedings are UCPR r 6.19 and r 6.24.

Construing court rules as with other statutory construction depends upon the purpose, text, context, coherence and legislative history of the relevant provision [75] .

UCPR 6.19 provides as follows:

The reference to “originating process” in UCPR r 6.19 definitionally includes a cross-claim [76] .

The predecessor of UCPR 6.19 was SCR Pt 8 r 2, which at material times and relevantly up to the introduction of the UCPR was in the following form

Order 6 r 2 of the Federal Court Rules (Cth) were (relevantly at least pre 2011) in the same terms as SCR Pt 8 r 2.

Clearly r 6.19(1) permits joinder in cases where there is both a common question and relief in respect of a same transaction or series of transactions.

There is suggestion that UCPR r 6.19 applies only to joinder by the moving party on the relevant originating process when some relief is sought by the moving party against the proposed defendant [77] . It is not necessary to address those matters as it is accepted here that the requirements of r 6.19(1)(b) are not satisfied.

However, there is a residual discretion in r 6.19(1) conveyed by the concluding 11 words “or if the court gives leave for them to be joined” (residual discretion).

In the early 1990s, there was an initial flurry of cases dealing with joinder applications involving large groups in representative proceedings.

In Bishop v Bridgeland Securities (1990) 25 FCR 311 (Bishop), Wilcox J addressed the residual discretion at 314-315 as follows:

In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ATPR 41-078, Rogers CJ Comm D considered the discretionary aspect of SCR Pt 8 r 2 [78] . His Honour considered a number of matters but relevantly referenced the decision of Wilcox J (above) stating that at least one of the basic principles that guided the operation and application of that part of the rule is that the Court must take whatever course is most conducive to adjust resolution of the dispute between the parties, but having regard to the desirability of limiting so far as practicable, the costs and delay of the litigation [79] .

In Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382, the Court of Appeal addressed principles relevant to a form of representative action under the then SCR Pt 8 r 13. Kirby P albeit in that context favourably commented on the decision of Wilcox J in Bishop [80] stating as follows at 397B-E

A decade later, Austin J in Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64; [2002] NSWSC 525 (Dean-Willcocks) at [28]-[38] considered the residual discretion at some length. In particular at [34], Austin J stated:

In 2005, the specific introduction of CPA Pt 10 setting up a detailed framework for dealing with such representative claims lessened the need for resort to other joinder powers (and relevantly r 6.19 and its predecessors).

Since then, the decision of Wilcox J in Bishop has been rarely commented upon in this Court.

In Australian Securities and Investments Commission v Somerville [2008] NSWSC 788 (Somerville), Austin J had cause to revisit the issue this time expressly having regard to the provisions of the discretion in UCPR 6.19 stating at [43]-[45]:

In Ghose v Cx Reinsurance Company Ltd and Ors [2010] NSWSC 110 (Ghose) Austin J considered the consolidation provisions of UCPR r 28.5 and in that context very briefly referenced the decision in Bishop [81] . Ghose does not advance the Bishop analysis.

In Hughes v Fong [2016] NSWSC 1451, Campbell J at [18] stated regarding the general discretion:

In Prime Capital Securities Pty Ltd v Boikov [2021] NSWSC 1608 (Boikov), Campbell J at [17] referenced Bishop. Further, Boikov, also does not relevantly advance the Bishop analysis.

Of some significance is that the operation of the rule in discretion was briefly addressed by the Court of Appeal in CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81 (Bazem). Bishop was not cited nor were the decisions of Austin J in Dean-Willcocks and Somerville.

Macfarlan JA at [27]-[29] relevantly stated (Beazley JA at [1] Hodgson JA at [2] agreeing).

It may be accepted that a number of the above-mentioned decisions including the decision of Wilcox J occurred in very different factual circumstances to that of this case. Nonetheless, acknowledging the exercise is fact-sensitive, the observations of Rogers CJ Comm D, Austin J and Campbell J suggests that the approach to be taken in relation to the discretion can proceed safely in accordance with the principles outlined by Wilcox J and the remarks of Macfarlan JA in Bazem do not suggest otherwise.

The Court in making case management decisions is entitled to consider the effect of such a decision on Court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties [82] . What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources [83] .

Mr Li submitted, citing Walker at 503 and Coastal at [49] that the residual discretion element of r 6.19 only permits joinder by the moving party on the relevant originating process with some relief sought by the moving party against the proposed defendant. In Walker Needham J relevantly stated [84]

The High Court in Payne v Young (1980) 145 CLR 609 (Payne) dealt with an application to joinder pursuant to O 16 rr 1,4. There was a decision by Aickin J which was appealed to the Full Court (comprising Barwick CJ, and Stephen, Mason and Murphy JJ). The appeal was allowed. O 16 r1 was relevantly in the following terms [85]

Relevantly, two things are evident from the reasons for judgment. First, the wording of O 16 r 1 whilst bearing some similarity to SCR Pt 8 r 2 is materially different in that it simply does not contain the disjunctive “residual discretion” provision of SCR Pt 8 r 2(b). Secondly, Barwick CJ, Stephen and Mason JJ only relevantly addressed the terms of O 16 r 1(a) (“relief in respect of, or arising out of, the same transactions…”) [86]

The balance of the comments of Needham J at 503A-B are expressly directed to Pt 8 r 2(a). It is simply not the case that Walker supports the proposition that the residual discretion under SCR Pt 8 r 2(b) (or relevantly here the residual discretion under r 6.19) may only be exercised if some relief is to be sought by the plaintiff against the proposed new defendant.

UCPR r 6.24 is as follows

Within the Judicature system, the essential language and structure of the rule has been in place for over 150 years, with a delayed introduction in NSW until the commencement of the SCA in July 1972 [87] .

Relatively soon after the commencement in NSW, Needham J emphasised the appropriateness of construing the rules without gloss [88] .

Elucidation and adoption (or application) of the principles have not always been uniform [89] . Doubtless this is because, “both the justification for, and the practical significance of, a distinction between, on the one hand, a person who “ought to have been joined” and, on the other, a person whose joinder is “necessary”, is extremely difficult to formulate” [90] . The Court of Appeal has observed that determination of who “ought to be joined” or who “is a necessary party” is not always uncontroversial and not necessarily simple [91] . In law, such difficulties often lead lawyers and judges to explain or describe the terms of statutory provisions by reference to other terms or concepts. Sometimes that is useful. However, it risks gloss [92] with consequential diversion (by enlargement, restriction or otherwise) from the true meaning and operation of the power.

“Ought” conveys the meaning of being bound in duty or moral obligation or requirement as matter of justice or propriety [93] . “Necessary” is to similar effect conveying something that is indispensable or requisite [94] .

There is seemingly no bright line between the “oughtness” limb and the “necessary” limb, which have been described as being overlapping [95] . Nonetheless, UCPR r 6.24 requires satisfaction of either the “oughtness” limb or the “necessary” limb, and no occasion for the exercise of any discretion regarding joinder arises unless one of those two limbs is satisfied [96] .

Broadly speaking, the “necessary” joinder basis falls into two types of cases being where:

The reason for joinder differs between those categories. For the first category, reasons include protection of the person’s rights or liabilities, binding them by any judgment or order, or according them procedural fairness. For the second category, it is to assist the court to determine, effectually and completely, all matters in dispute in the proceedings [99] .

Beyond the above, the question of what constitutes “oughtness” or necessity” is explained by case law of the highest authority. Thus, where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined [100] .

Mere notice to the person affected by the order is insufficient. There is an obligation (rather than a discretion) upon the party seeking the order to join the affected person [101] .

In Ross, the Court of Appeal did not need to reach a concluded view regarding the role of CPA ss 56-59 in relation to joinder [102] . That said, prima facie, nothing in CPA ss 56-59 undermines the general law joinder principles [103] , and on one view it is easy to see that in many cases the overriding purpose and case management guidelines and dictates reinforce the sensibility of joinder of an affected party.

The “direct affect” test has being described in terms of not merely affecting the “rights or liabilities” of a non-party but more broadly in terms of a party’s “interests” in the “subject matter” of the dispute [104] .

Non-exhaustively, a number of propositions discerned from case law may be stated:

However, caselaw on joinder is not uniform on the point, even as to the same judge. In Vandervell Trustees Ltd v White [1971] AC 912 (Vandervell), Lord Diplock stated that a party to an action must be a person who, in that action, claims some relief against another party to the action or be the party against whom such relief is claimed and there is no jurisdiction to add as a party to an existing action, a person by and against whom no relief which the court has jurisdiction to grant can be claimed [112] . Yet, it has been said that the test posed by Lord Diplock in Vandervell is inconsistent with his Lordship’s earlier comments in Pegang [113] .

The mere absence of relief by or against the party proposed to be joined is not conclusive against joinder [114] . Thus, cases in the second “assist the court” category include where the person seeking joinder “is in a position to put before the Court matters which could be relevant to the exercise of discretion”, on the matter in dispute, and “there is no one else who has been shown to have any interest in putting forward such matter” [115] . Joinder has been permitted to enable the third parties to be bound by a determination (guarantors of a debt) [116] (though it may be noted that Multi-Tech Services was not followed by Needham J in Walker).

The phrase “all matters in dispute in the proceedings” is not limited to matters that arise on the existing pleadings. It also includes “subjacent” (i.e. underlying) matters. It thus extends to the determination of questions about the liability of an alternative potential party [117] .

UCPR r 6.27 is in the following terms

First impressions suggest that it is a rule in broad untrammelled terms. If that were the case, one might think r 6.27 would be the gateway for most applicants to joinder. However, there are a few cases that deal with it. On rare occasions, r 6.27 appears to have been used as a type of standalone or independent power for joinder without reference to r 6.24 [118] .

As I have mentioned above, understanding the scope of the provision depends upon the purpose, text, context, coherence and its legislative history [119] .

Section headings and marginal notes such as the comparative reference to SCR are generally not taken to be part of the UCPR [120] . However, parenthesised comparative notes to r 6.24 “(cf SCR Part 8, rule 8(1)…)” and to r 6.27 “(cf SCR Part 8, rule 8…)” show a connection between the rules with both rules being sourced from a common predecessor namely SCR Pt 8 r 8(1).

There is nothing in the draft Civil Procedure Bill (including the draft UCPR rules) (Bill) and the Explanatory Note, or the Second Reading Speeches for the introduction of the Bill in either of Legislative Assembly (by the Attorney General the Honourable Bob Debus) on 6 April 2005 [121] , which suggest r 6.27 was intended to be a novel new power.

The Attorney General referenced the Working Party established in early 2003 to rationalise and simplify civil court rules in New South Wales chaired by Justice Hamilton [122] and highlighted the overriding purpose provision and associated developed case management guidelines and principles [123] .

The Attorney General noted that whilst the [UCP] rules carried over a large number of the existing [SCR and other] rules and generally follow the existing order of those rules, the opportunity had been taken to group like rules together where appropriate. He cited as an example, the rules in relation to parties to proceedings being grouped together in Part 7 UCPR instead of being scattered throughout the rules. Specifically, the Attorney General identified some new matters are addressed in the rules. However, this did not include changes to the provisions regarding the basis for joinder of non-parties to proceedings [124] .

Generally, substantive rule change was not on the agenda. In the process of unification, and modern drafting, the Working Party’s aim was to “consolidate provisions about civil proceedings into a single bill and develop a common set of rules, simplified where possible but without radical changes in substance or form” [125] . The uniform rules largely reflect existing provisions and continued to use phrases that had a settled legal meaning to expressly avoid debates about substantive changes [126] .

Likewise, in the Legislative Council the Honourable Henry Tsang, Parliamentary Secretary, made the same point [127] :

None of the other Second Reading Speeches [128] , nor the ‘Attorney General's Department of NSW – An Introduction to the Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005’ even remotely suggests that in the rules which deal with joinder of parties, r 6.27 was intended to create a new independent and unqualified basis for joining parties [129] .

Predominately, r 6.27 does not appear to have been construed as an independent power permitting joinder other than in accordance with the ‘direct affect’ requirements, for what I will describe as a ‘proper’ purpose, nor to circumvent or undermine the provisions of r 6.24 [130] The commentary in NSW Civil Procedure (which expressly links r 6.27 with r 6.24) is to the same effect [131] .

Other occasional use of r 6.27 without reference to r 6.24, properly construed does not undermine the proposition. Thus, it appears to have been deployed without reference to r 6.24 in circumstances for example where a party who contends to be interested in funds that have been paid into court seeks an order for payment out of funds [132] , where a beneficiary seeks to pursue action which a trustee has declined to prosecute [133] , in some cases where the Attorney-General seeks to intervene in proceedings [134] or potentially in some cases involving a non-party who is the recipient of a subpoena.

If the above is the case, what is the purpose of r 6.27? In the absence of submissions on the matter, I will not venture any concluded view. However it seems to me that a principal purpose of r 6.27 is facilitative, thus making it clear that non-party may invoke r 6.24 to seek joinder. Such a construction is consistent with above-mentioned cases. Likewise, it seems to me that r 6.27 would similarly be read with r 6.19, making it clear that a non-party may invoke r 6.19 to seek joinder.

Mr Fernon SC referenced the High Court decision in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; [2011] HCA 54 (Roadshow Films).

Applications to intervene are sometimes coupled with applications for joinder. Nonetheless, there is a difference between intervention in the sense of a Court permitting a party to appear and make submissions whether as amicus otherwise on the one hand and joinder on the other [135] .

The Roadshow Films principles referenced by Mr Fernon SC are to the effect that:

However, Trevor’s application is not for intervention to merely make submissions but for joinder in a full party participation sense.

Finally, having regard to the nature of issues in the proceedings, I note that there are instances of parties being joined to family provision proceedings to address issues regarding the value of an estate. In Zerella v Zerella [2014] SASC 100, Bampton J dismissed an appeal against an order of a Master of the court joining the trustee of the family trust in circumstances where the principal asset of the estate was said to be debt due to the deceased from the trustee in this capacity is trustee of the trust. Bampton J considered that the joinder was appropriate in circumstances where the value of the debt was directly relevant to the value of the estate and the subject matter of the family provision proceedings, the court had jurisdiction to determine the size and value of the estate and that it was appropriate to join the trustee for it to be bound by any finding as to value [138] . In particular, an aspect of the basis for the application for joinder was that if there was subsequent need for action by the executors against the trustee for repayment of the debt or an action for devastavit or for breach of fiduciary duty, the determination of the value of the debt would be binding upon the trustee [139] .

In Smith v Smith [2017] SASC 126, Master Roder permitted joinder of parties to address in family provision proceedings a disputed question regarding the existence of a debt. His Honour, at least in part, considered that the joinder would avoid multiplicity of actions [140] .

Discussion regarding joinder principles would not be complete without recognising that the Court may dispense with aspects of the requirements of the joinder rules, or may impose conditions upon joinder and permit alternative positions to be taken which allow some degree of intervention in proceedings which falls short of joinder.

First, the Court may, pursuant to CPA s 14, dispense with any requirement of rules of Court if satisfied that it is appropriate to do so in the circumstances of the case. The dispensation power was not the subject of submissions in the case and I will not dwell on it further.

Secondly, the Court may, pursuant to CPA s 86, make orders on such terms and conditions as at thinks fit.

Thirdly, there are other mechanisms for addressing the position where there is doubt whether the decision is one which could have been made in the proper exercise of its functions short of joining the objector as a party - this includes a non-party participating as an amicus curiae [141] .

Counsel for the parties made various written and oral submissions.

The principal contest arose from the submissions of Alastair to Trevor’s position. Mr Underwood in his submissions on behalf of Grace opposed the joinder raising some similar submissions advanced by Mr Li [142] . For that reason, whilst acknowledging Grace’s position and submissions, and noting that I have taken them into account, there is no need to separately recount her submissions.

Mr Fernon SC in his initial written submissions contended that both limbs of r 6.19(1)(a) and (b) had been satisfied [143] . However, during the hearing before me, he accepted my proposition that he could not satisfy the criteria in r 6.19(1)(b) [144] . Thus, he accepted that to be joined pursuant to r 6.19 he would have to rely upon the “residual discretion” [145] .

Otherwise the submissions of Mr Fernon SC may be summarised as follows:

The submissions of Mr Li may be summarised as follows:

It is convenient to start with the proposition of Mr Fernon SC that the debt issue in the D&WC proceeding and the estate size issue in the FP proceeding are connected in the sense that there is dispute over a “monetary fund" which is Catherine's estate.

There is little doubt that there is a connectedness between the debt issue in the D&WC proceeding and the estate size issue in the FP proceeding. The debt issue is a type of ultimate issue in the D&WC proceeding. Specific relief (in the form of a judgment) is sought in relation to an amount of the debt. In the FP proceeding, the estate size issue is not an ultimate issue. There is no relief sought in the form of a declaration or otherwise as to the size of Catherine’s estate.

The right of an eligible person to seek determination by the Court of his or her application for a family provision order, which is based on statutory provisions, does not give rise to any interest in property (if at all) until such time as a positive order is made under the Succession Act conferring such an interest [188] . Mr Li describes the nature of Trevor's claim in the FP proceeding as being an interest of the prospective unsecured creditor [189] . However, even that characterisation is a little doubtful [190] .

Nonetheless, whether Trevor succeeds in getting any ultimate form of provision relief, will depend upon a number of factors of which on any view of it includes the size of Catherine’s estate including whether it is burdened by a judgment arising from the debt issue in the D&WC proceeding.

The question as to the amount of deceased estate available for distribution in the FP proceeding is not merely a type of consideration which the court can dispense with [191] . Leaving aside very large estates (where it may not be essential to determine precisely how large the estate is), ordinarily no proper determination of a family provision claim can be made unless and until the parties placed before the Court, satisfactory evidence of the funds available for distribution from the estate after payment of funeral testamentary and administration expenses, debts and costs [192] .

Thus, whilst in terms of ultimate relief, the debt issue and the estate size issue in the respective proceedings differ in degree, and in that respect the findings in the debt issue might be said to not have a direct affect on Trevor’s ultimate rights or liabilities, there is no doubt that a finding in the D&WC proceeding will have at least a practical impact upon the FP proceeding.

Ordinarily, the proper parties to proceedings in respect of a disputed loan are the parties to the loan [193] . However, that is not conclusive of the matter. As indicated above, it does not matter that the third party is not a party to the money advances as between Miriam and/or her estate and Catherine and/or her estate and Grace [194] . Further, Mr Li’s submission that there is a dichotomy between "legal" interests and "commercial" or “economic” interests has been said not to be helpful in determining directness of fact or necessity [195] . Mr Li acknowledged that if the Court enters judgment in these proceedings against Catherine’s estate “that may shape the factual matrix in which the amount of [Trevor’s] award is assessed” [196] .

On the other hand, I accept that if Trevor were not joined, the debt issue could be ‘effectively’ determined between the existing parties to the D&WC proceeding, at least in the sense that both Catherine’s estate in Miriam’s estate would be bound by a finding. The difficulty is that Trevor, if not a party, would not be bound. I address this under the residual discretion findings below.

On one view, the debt issue has a direct effect on Trevor’s interests. On that basis, Trevor is regarded as a party who is necessary to the determination of the debt issue in the D&WC proceeding.

However, I accept that the question is vexed and I prefer not to base my determination regarding joinder on a finding that Trevor is a “necessary” party to the D&WC proceeding.

Overall, I consider that there are various considerations which favour a finding that under the residual discretion in UCPR r 6.19 that Trevor should be joined to the D&WC proceeding.

First, there is common question between the proceedings regarding the size of Catherine’s estate which is not merely a collateral issue but is a [highly] material issue which will bear upon the ultimate findings in each preceding. The debt amount has been the subject of varying claims ranging from $460,000 to $1.5 million. Whether the amounts sought to be recovered, now stated to be $484,144.39 and $114,683.22 plus interest, is the final claim remains to be seen.

Secondly, neither the debt issue in the D&WC proceeding nor the estate size issue in the FP proceeding is likely to be short. The debt issue bears a degree of complication with the Pitcher Partners report only dealing with part of the transactions. Thus far, it seems that the claims for relief only relate to the single credit card and not to other credit card or cash advances. However, even if it remains that way, that is still a very significant issue which is factually complicated and I consider will likely consume much time and expense in the litigation. Further, in my view, the time and expense on the debt issue is likely to exceed that which is spent on the limitation issue and the hotchpot construction issue.

Thirdly, Mr Turnbull accepted that on the assumption that the D&WC proceeding is determined prior to the FP proceeding and the size of Catherine’s estate is a disputed issue, if Trevor were not joined to that proceeding that he would not be bound by a judgment in it and would be at liberty to challenge in the FP proceeding the amount that is said to constitute Catherine’s estate [197] .

Fourthly, whilst technically it may be said that the D&WC proceeding is properly constituted in the sense that Alastair as executor is the appropriate representative of Miriam’s estate, Grace as executrix of Catherine’s estate and in her own right is joined as a defendant, there is some tension between Grace’s position in respect of the claims personally against her and against Catherine’s estate. Whether that tension amounts to a conflict in a practical sense is debatable. It is understandable that Grace contends that there is no practical conflict because she is entitled to the entirety of Catherine’s estate. However, Mr Fernon SC contends that Grace is conflicted (or at least potentially so) and I accept that it cannot be unequivocally said at this stage that there is no lingering tension or conflict in Grace’s position given the lack of absolute certainty regarding the amounts to be ultimately pursued as debts against Catherine and Grace, the evidence contextualising the payments is not complete and it may be expected that Grace seeks to minimise the claim by Trevor in the FP proceeding.

Fifthly, if Trevor were not joined to the D&WC proceeding, I am not satisfied that he will per se lose the ability to dispute the value of Catherine's estate in the FP proceeding. Mr Turnbull acknowledged as much. However, nonetheless, I consider the prospect that there may be differing findings regarding the value of Catherine's estate potentially as between the two proceedings which is a matter to be avoided if possible. Perhaps more significantly, if there is a finding in relation to the size of Catherine's estate in respect of the FP proceeding, for example, as to a greater amount than any judgment debt in the D&WC proceeding, Grace may well be in some real difficulty having regard to differing findings in the proceedings.

Sixthly, joinder of Trevor to the D&WC proceeding would not merely avoid the potential for conflicting findings in the proceedings in respect of the size of Catherine’s estate, but bind Trevor to a determination as to the debt issue in respect of Catherine’s estate so that that is not re-litigated in the FP proceeding.

Seventhly, I reject (for the reasons earlier stated) the submission of Mr Li that the residual discretion element of r 6.19 only permits joinder by the moving party on the relevant originating process with some relief sought by the moving party against the proposed defendant.

Eighthly, Mr Li’s submission that if Trevor were joined he may influence [198] or shape the outcome in the matter has an unstated premise. For it to be a matter counting against joinder, the premise is that such influence or shaping would either be unjust to Alastair and or Grace or otherwise not conducive to the proper determination of the D&WC proceeding. If that be Mr Li’s concern, I am not convinced that that premise is made out or even likely. Two matters bear significance – context and evidence.

Ninthly, I do not regard the submission that Grace could potentially call Trevor as a witness in the D&WC proceeding as being sufficient basis to exercise the discretion against joinder. First, thus far, neither of the parties to the D&WC proceeding have sought to adduce evidence from Trevor and it seems unlikely in light of the opposition to his joinder to the proceeding that either will do so. Secondly, if evidence was adduced from him, in the absence of him being a party to the proceedings, Mr Turnbull acknowledged he would still not be bound by the outcome.

Tenthly, I do not accept that joinder would necessarily result in Trevor inappropriately engaging “in a roving commission as to the financial relationship” between Miriam’s estate and Catherine’s estate. Nor do I accept that there is basis for thinking that Trevor’s involvement in the D&WC proceeding would be antithetical to those proceedings or otherwise be inconsistent with the CPA s56 overriding purpose. It must be remembered that overall there were two proceedings before the Court. It is artificial to consider the application only by reference to the D&WC proceeding. The impact of non-joinder upon the FP proceeding and on the call uponof the court’s resources and time is relevant. Under modern principles of case management, the Court is entitled to consider case management more broadly on the Court’s resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties - including, relevantly here the FP proceeding. This is one of the significant points made by Wilcox J in Bishop.

Eleventhly, in a sense, there are already a multiplicity of proceedings. In that respect, joinder will not reduce the number of proceedings. However, the salient point is that Trevor’s joinder to the D&WC proceeding will very arguably ensure the most efficient use of resources for all parties. There is no evidence that Trevor’s joinder will result in excess resources being spent [201] . Significant documents relating to the alleged debt have been sought and produced in the FP proceeding [202] .

Twelfthly, there is no current indication of the exact length of the FP proceeding. However there is no reason to think that it is likely to be brief. On 12 November 2024, Mr Zelinka on behalf of Trevor in corresponding about the FP proceedings estimated that the matter would take three days to be heard, noting that there were approximately 14 witnesses [203] . In balancing the interests of all parties, I am not persuaded that there is any untoward unfairness or unjustness to Alistair and Grace in a joinder order, at least not such as would in any material significant sense outweigh unfairness or injustice to Trevor. It seems to me that if Trevor were not joined to the D&WC proceeding, his family provision claim would be (or might well be) delayed until the outcome of the other proceeding was known. There would be further expense in him effectively relitigating in the FP proceeding the estate size issue having regard to advances as between Miriam and Catherine or their respective estates.

Thirteenthly, I am content to proceed on the basis as submitted by Mr Li that no arrangement between Trevor and Grace for Grace to receive an amount greater than her legitimate entitlement under Miriam’s Will irrespective of the recovery made by Miriam’s estate from Catherine’s estate. However, that fact per se does not persuade me that joinder is inappropriate.

Lastly, Lindsay J in his orders of 4 July 2025 expressed an intention that the FP proceeding and the (then envisaged) D&WC proceeding would be case managed and heard together or alternatively heard sequentially [204] . An order for joinder is consistent with what was then and now remains a case management decision in respect of both proceedings.

Overall, I am persuaded that joinder of Trevor to the D&WC proceeding is the most conducive course to a just resolution of the disputes between the respective parties in each proceeding having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation, efficient use of the Court's resources having regard to the commonality of the debt issue and estate size issues raised in the respective proceedings, and the Court's ability to case manage so as to minimise the disadvantages. Further, it is consistent with the application of the overriding purpose of civil litigation in respect of both proceedings.

Mr Li (as abovementioned) advanced the proposition that there might be conditions both as to “limited participation” and “costs” as to Trevor’s joinder if he were to be joined.

Mr Li did not identify what “limited participation” might be appropriate in the case of Trevor being joined to this D&WC proceeding. I do not consider that there should be some constraint placed upon his joinder particularly if one of the various purposes of the joinder is that he is to be bound into the outcome on the proceedings in particular on the debt issue.

I reject the submission that a condition of a joinder should be that Trevor bear his own costs of the joinder. Such a prospective costs order would be against the interests of justice. It seems to me sufficient to simply note that his joinder would be on the basis that it is at his own risk as to costs which then leaves to the judge who determines the proceeding to assess costs at or consequent upon the final determination in a better informed context, than prevails at the moment.

Mr Li submitted that if a joint order were made, the “reason” for the joinder should be articulated “so that if circumstances change or if the intended purpose of the joinder fails to materialise”, Alistair would be at liberty to take steps to seek to “unjoin” Trevor from the D&WC proceeding. The purpose of Trevor’s joinder is not singular but encompasses all the above purposes articulated in my reasons.

Lastly, counsel respectively contended that the joinder application should be granted or dismissed with costs [205] . I have considered those submissions. Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings [206] .

Overall I consider that the appropriate order is that the costs of the application should be reserved, to the intent that there is an opportunity for the trial judge to deal with costs in a context in which such a judge is better informed regarding the ultimate merits of the matter in light of the progression and outcome of the proceedings.

The orders of the Court are – the Court