DISTRICT COURT OF QUEENSLAND

CITATION:	Perpetual Corporate Trust Limited v Australian Securities and Investment Commission & Anor [2024] QDC 47	
PARTIES:	PERPETUAL CORPORATE TRUST LIMITED 
ACN 000 341 533
(plaintiff)
v
AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
(first defendant)

and

DAYNE WHATIHUA TAURANGA
(second defendant)	
FILE NO/S:	329 of 2024
	
DIVISION:	Civil	
PROCEEDING:	Application filed 4 April 2024	
ORIGINATING COURT:	District Court	
DELIVERED ON:	4 April 2024 (on the papers)	
DELIVERED AT:	Brisbane	
HEARING DATE:	4 April 2024	
JUDGES:	Andreatidis KC DCJ	
ORDER:	1.	 Application adjourned to a date to be fixed. 	
CATCHWORDS:	CIVIL PROCEDURE – INCLUDING, SUBSTITUTING OR REMOVING PARTY 	
LEGISLATION	Uniform Civil Procedure Rules 1999 Qld, r 69	
SOLICITORS:	TG Legal & Technology Lawyers for the plaintiff

No appearance for the first defendant	

[1]	This is an application to remove the Australian Securities and Investment Commission as the first defendant and to replace it with the Commonwealth of Australia as the first defendant pursuant to rule 69 of the Uniform Civil Procedure Rules 1999 (Qld).
[2]	I am satisfied that, subject to one issue which I have identified below, this would have been an appropriate occasion to exercise the Court’s discretion to remove a party who ought not have been joined and to include the party that ought to have been.
[3]	On 29 August 2023, ASIC wrote to the plaintiff’s solicitors. That letter, in effect, advised that it ought to be the Commonwealth of Australia, as opposed to ASIC, that is named as the first defendant. Importantly, ASIC also advised that if they were satisfied a court order was necessary, they may assist by consenting to being substituted as a defendant and signing consent orders. 
[4]	 ASIC as the existing first defendant, was served with the claim and statement of claim on 12 February 2024.
[5]	On 21 February 2024 ASIC wrote to the solicitors for the plaintiff acknowledging service of the claim and statement of claim and asking for an explanation as to why the plaintiff had commenced proceedings against ASIC given the details set out in ASIC’s letter to the solicitors for the plaintiff on 29 August 2023.  The email of 21 February 2024 repeated, in effect, the 29 August 2023 letter, namely: that the correct first defendant should be the Commonwealth of Australia.
[6]	The communication from ASIC of 21 February 2024 does not state what ASIC’s position is in relation to any costs it may have unnecessarily incurred as a consequence of incorrectly being included as the first defendant.
[7]	The material before the Court does not indicate whether ASIC seeks costs.  There is no evidence that the application before the court or the supporting affidavit or submissions were served on ASIC.
[8]	In the circumstances, I am not prepared to exercise the Court’s discretion because:
(a)	I do not know what ASIC’s position is in relation to the question of costs; and
(b)	there is no evidence before me that the application was served on ASIC.
[9]	It may well be that these matters could have been addressed if there had been an appearance instead of an application without oral hearing.
[10]	Nonetheless, there may be an easy solution to the problem I have identified. Accordingly, the only order I make is that the application be adjourned to a date to be fixed.