28 January 2022
Magistrates' Court - Identifying the correct defendant
When preparing a Magistrates’ Court complaint, can a firm be nominated as a first defendant and the firm’s proprietor as a second defendant?
Thank you for the question.
The answer depends on whether the firm is a company, a partnership, or the business name of a sole trader.
If incorporated, the company can be named as a defendant.
A director, shareholder, or employee can also be named as a co‑defendant depending on the nature of the claim. The individual should only be named if there is an independent cause of action against them.
If the firm is a partnership, the partnership is not a legal entity but each of the partners is. However, under r 17.01 of the Magistrates’ Court General Civil Procedure Rules 2020, a proceeding can be commenced against all of the partners in the name of the firm without having to individually name each partner. Naming the firm under r 17.01(1) is an optional procedure available if the partnership is carrying on business in Victoria. The procedure is only for convenience and has the same effect as naming the individual partners. The advantage of adopting the procedure is that service on all partners is not necessary. Service on one of the partners or on the principal place of business is sufficient: r 17.03.
If the firm is a sole trader using a business name, the individual is the only legal entity. However, that person can still be sued in the business name under r 17.10. In that case, either the business name or the individual is a named defendant, not both.
Regards
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