Federal Court of Australia

LFDB v SM (No 7) [2026] FCA 718

ORDERS

THE COURT ORDERS THAT:

1.    LFDB’s interlocutory application dated 8 April 2026 be dismissed.

2.    LFDB pay Marque Lawyers Pty Ltd (Marque)’s costs of that interlocutory application, to be paid by way of lump sum.

3.    Marque to file and serve any affidavits in relation to the quantification of the lump sum by 12 June 2026.

4.    LFDB to file and serve any affidavits in relation to the quantification of the lump sum in response by 19 June 2026.

5.    Marque to file and serve any affidavits in reply by 26 June 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    By an interlocutory application dated 8 April 2026 (the Joinder Application), the applicant seeks an order pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) that Marque Lawyers Pty Ltd (Marque) be joined as the third respondent. Rule 9.05 provides as follows

Joinder of parties by Court order

(1)    A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

 (a)    ought to have been joined as a party to the proceeding; or

 (b)    is a person:

 (i)    whose cooperation might be required to enforce a judgment; or

 (ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

(2)    A person must not be added as an applicant without the person’s consent.

(3)    If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.

(4)    An application under subrule (1) need not be served on any person who was not served with a copy of the originating application.

Note:     The Court may make an order for any of the following:

(a)    service of the order and any other document in the proceeding;

(b)    amendment of a document in the proceeding;

(c)    the filing of a notice of address for service by a party.

2    These proceedings concern two judgments of the High Court of New Zealand given against the applicant (LFDB) in favour of the second respondent in these proceedings (SM) on 26 November 2015. Those judgments were registered in this court by the NSW District Registrar on 16 December 2015, pursuant to s 68 of the Trans-Tasman Proceedings Act 2010 (Cth) (TPPA). Marque acted for SM in obtaining registration.

3    LFDB (and entities associated with him) then applied under s 72(1) of the TPPA to set aside the registration of the New Zealand judgment. That application was dismissed by Griffiths J in LFDB v SM (No 3) [2017] FCA 80, and LFDB’s appeal to the Full Court was dismissed by Besanko, Jagot and Lee JJ in LFDB v SM [2017] FCAFC 178; (2017) 256 FCR 218.

4    By interlocutory application dated 19 March 2026, LFDB seeks various orders and declarations directed to setting aside or rendering void the registration of the New Zealand judgments and consequential relief, including compensation for the allegedly wrongful registration.

5    Paragraph 17 of the Joinder Application conveys the impression that the joinder of Marque is sought by reason of three causes of action alleged against Marque, namely, negligence in effecting the registration of the New Zealand judgments, misleading conduct in stating in Form 5 in seeking registration that, “A copy of the Judgment is attached”, and what is referred to as, “Knowing pursuit of enforcement on a void registration”. The latter is not a cause of action known to the law, and LFDB does not appear to contend otherwise.

6    LFDB clarified in his written submissions in reply that he is not seeking to prosecute a claim against Marque in negligence or under the Australian Consumer Law. A claim in negligence would confront the obstacle that a solicitor generally does not owe a duty of care to the opposing litigant, as that would be inconsistent with the duties owed to his or her own client: Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159 at 167 (Brennan CJ), 187 (Dawson J), 237 (Gummow J); Islam v Mitry Lawyers Pty Ltd [2023] NSWSC 700 at [18] (Davies J). A claim for misleading conduct under s 18 of the Australian Consumer Law would confront the obstacle that a solicitor’s dealings with the Federal Court Registry are not “in trade or commerce”: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 (Mason CJ, Deane, Dawson and Gaudron JJ). Any such causes of action would thus be liable to be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), which would be a sufficient basis for refusing leave to join Marque.

7    Rather, LFDB contends that Marque should be joined on the basis that Marque’s participation in the proceedings is necessary to ensure that each issue in the proceedings can be heard and finally determined, and because Marque ought to have been joined as a party. LFDB seeks to invoke the principle that where the orders sought in proceedings directly affect the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined: John Alexander’s Clubs Pty Limited v White City Tennis Club Limited [2010] HCA 19; (2010) 241 CLR 1 at [131] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

8    LFDB cites in support of his argument the decision of Derrington J in Quach v Registrar of Trade Marks [2025] FCA 1544 at [8], in which the applicants for a trade mark were joined in proceedings brought by an objector who was appealing against the Registrar of Trade Marks’ decision. The non-parties were therefore the parties directly affected by Dr Quach’s opposition, because if the appeal was successful, they would lose the benefit of the Registrar’s order that their application for the trade mark proceed to registration. In my view, that is a straightforward application of the general principle affirmed in John Alexander’s Clubs.

9    LFDB also cites Rondilis v Rondilis [2025] FedCFamC1F 896 at [14], in which McNab J applied a rule of that court that a person whose rights may be directly affected by an issue in a proceeding and whose participation is necessary for the court to determine all issues in dispute in the proceeding must be included as a party to the proceeding. Again, that rule merely restates the general principle affirmed in John Alexander’s Clubs.

10    In the present case, there is no right or liability of Marque which may be directly affected by any issue in these proceedings. LFDB says that he seeks to join Marque because Marque is the only party with knowledge of the registration process and its participation is necessary for the court to determine the validity of that process. Even taking that argument at its highest, it does not establish any direct effect to the rights or liabilities of Marque. It is not sufficient to justify the joinder of a non-party to establish that only that party can explain the circumstances in which the impugned transaction was carried out. That is a matter for the law of evidence, including principles concerning the compellability of witnesses to give evidence.

11    Marque has indicated that it seeks an order for costs of the interlocutory application to be paid as a lump sum. A lump sum order is the court’s preference wherever it is practicable and appropriate, and I will set a timetable for the service of affidavits dealing with the quantification of the lump sum, which I anticipate deciding on the papers.

Associate:

Dated:    4 June 2026

SCHEDULE OF PARTIES