AGC Industries Pty Ltd v The Trustee for Trepang Services Unit Trust
[2022] NTSC 30
•12 April 2022
CITATION:AGC Industries Pty Ltd v The Trustee for Trepang Services Unit Trust & Anor [2022] NTSC 30
PARTIES:AGC INDUSTRIES PTY LTD
(ABN 57 970 939 898)
v
THE TRUSTEE FOR TREPANG SERVICES UNIT TRUST
(ABN 50 455 907 135)
and
NORTHERN RISE VILLAGE SERVICES PTY LTD
(ABN 90 165 392 450)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:No. 2021-00358-SC
DELIVERED: 12 April 2022
HEARING DATE: 9 February 2022
JUDGMENT OF: Huntingford A/AsJ
CATCHWORDS:
Practice and Procedure – Pleadings – Amendment of Pleadings – Mistake in the name of a party – Loss of a potential limitation defence is not prejudice – No prejudice to defendants in the conduct of their claim – Application to amend granted
Evidence – Failure to call evidence – Inference that evidence would not have assisted – Facts established by alternative evidence
Practice and Procedure – Amendment of writ – Amendment of endorsement on writ – New cause of action – Limitation period expires – Amendment takes effect from the date of commencement of the proceeding – Loss of a potential limitation defence is not prejudice – No prejudice to defendants in the conduct of their claim – Application to amend granted
Limitation Act 1981 (NT) s 12(1)(d)
Return to Work Act 1986 (NT) s 176(3)
Supreme Court Rules 1987 (NT) s 9.06, 14.03, 36.01
Practice Direction 6 of 2009 – Trial Civil Procedure ReformsAon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; ASIC v Hellicar (2012) 247 CLR 345; Ceric v C E Health Underwriting and Insurance (Australia) Pty Ltd (1993) 91 NTR 26; Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386; Knott v JN Mousellis Civil Contractors Pty LtdandAnor [2016] NTSC 59; Manassen Holdings Pty Ltd v Commercial & General Corporation Pty Ltd [2019] SASC; Morley v ASIC (2010) 274 ALR 205; Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733; Wickham Point Development Pty Ltd v The Commonwealth of Australia [2018] NTSC 7; Wintle v Conaust (Vic) Pty Ltd [2001] VSC 315, considered.
Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231, applied.
Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd (1996) 133 FLR 347; Jones v Dunkel (1959-60) 101 CLR 298; Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTCA 119; Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) [2020] VSC 284;
South Eastern Sydney Area Health Service v Gadiry (2002) 54 NSWLR 495; Weldon v Neal (1887) 19 QBD 394; Williams v Milotin (1957) 97 CLR 465, discussed.REPRESENTATION:
Counsel:
Plaintiff:M Doyle
First and Second Defendants: T Besanko
Solicitors:
Plaintiff:Sparke Helmore
First Defendant: Colin Biggers & Paisley
Second Defendant: Hall & Wilcox
Judgment category classification: B
Judgment ID Number: Hun2201
Number of pages: 26
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAGC Industries Pty Ltd v The Trustee for Trepang Services Unit Trust
& Anor [2022] NTSC 30No. 2021-00358-SC
BETWEEN:
AGC INDUSTRIES PTY LTD
(ABN 57 970 939 898)
Plaintiff
AND:
THE TRUSTEE FOR TREPANG SERVICES UNIT TRUST
(ABN 50 455 907 135)
First Defendant
AND:
NORTHERN RISE VILLAGE SERVICES PTY LTD
(ABN 90 165 392 450)
Second Defendant
CORAM: HUNTINGFORD A/ASJ
REASONS FOR DECISION
(Delivered 12 April 2022)
The proceeding
This proceeding was commenced by writ filed 17 February 2021. The endorsement alleges that the plaintiff was the employer of Mark Andrew Collette (the worker) who was injured on 18 February 2018 in the course of his employment when he slipped and fell at premises said to be occupied by the first defendant and maintained by the second defendant. The worker’s injury is alleged to have occurred as a result of water leaking from an air conditioning unit onto a tiled floor.
The endorsement states that the worker has made a claim for compensation pursuant to the Return to Work Act 1986 (NT) (RTW Act) and outlines a claim in negligence. The particulars of the loss said to have been suffered by the plaintiff at paragraph 10 of the endorsement appear to be benefits paid pursuant to the RTW Act. The endorsement does not refer to a claim for enforcement of the indemnity in s 176(3) of the RTW Act.[1] No statement of claim has been filed.
Application to amend
By amended interlocutory summons, originally filed 1 October 2021, the plaintiff seeks orders pursuant to r 36.01 of the Supreme Court Rules 1987 (NT) (SCR) granting leave to amend the writ by:
(a)Amending the name of the plaintiff by substituting MAS Australasia Pty Ltd as the plaintiff in lieu of AGC Industries Pty Ltd;
(b)Amending the name of the first defendant to Trepang Services Pty Ltd as trustee for the Trepang Services Unit Trust; and
(c)Further amending the writ by the removal of the general endorsement and addition of a statement of claim in the form of the proposed amended writ and statement of claim exhibit GWN-1 to the affidavit of Gary William Nutt sworn 4 October 2021 (Mr Nutt’s affidavit).
In the alternative to substitution of the plaintiff as above, the plaintiff seeks substitution or joinder of MAS Australasia Pty Ltd as plaintiff in the proceeding pursuant to rr 9.02 or 9.06 of the SCR.
The defendants do not object to the amendment of the name of the second defendant but otherwise oppose the applications.
Amendment
The general power to amend is contained in r 36.01 of the SCR which provides as follows:
(1) For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the proceeding.
(2) In this Order document includes originating process, an endorsement of claim on originating process and a pleading.
(3) An endorsement of claim or pleading may be amended under subrule (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.
(4) A mistake in the name of a party may be corrected under subrule (1) whether or not the effect is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6) The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under subrule (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7) For the purpose of subrule (6) any other party to the proceeding includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party.
(8) Subrule (6), with the necessary changes, also applies to an application under rule 14.03(2).
(9) Subrule (1) does not apply to the amendment of a judgment or order.
The power of the Court to allow amendments to documents under r 36.01(1) is broad and discretionary. Consistent with the public interest in determining the real issues between the parties, and not punishing litigants who make mistakes in the conduct of cases, courts generally take a liberal approach to amendment, subject to relevant considerations including that the application is made in good faith, the particular amendment is not futile and there is no injustice to another party that cannot be addressed by an appropriate order.[2]
There is no doubt that r 36.01 may be invoked in relation to the amendment of the name of a plaintiff.[3] An order amending the name of a party relates
back to the date the proceeding commenced pursuant to r 36.01(5).[4]
Mistake in the name of a party
The High Court considered the meaning of the expression “mistake in the name of a party” in relation to the identical Victorian rule in Bridge Shipping Pty Ltd v Grand Shipping SA (Bridge Shipping).[5] In the leading judgment in the majority McHugh J said:
Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.[6]
Following Bridge Shipping, where the application to amend is to correct a mistake in the name of a party, there are three limitations:
(a)There must be a mistake;
(b)The mistake must be in the name of a party; and
(c)The Court must be satisfied that no other party to the proceeding would be prejudiced in the conduct of their claim or defence by the order in a way which could not be fairly met by an adjournment, an award of costs, or otherwise.[7]
Where there is a finding that a mistake has been made, the cases generally fall into two categories. On the one hand are those where the mistake is properly one of identity,[8] and on the other are those cases where the mistake is as to the nature of the legal recourse available.[9]
In Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd (Mannin) Kearney J said that categorisation of the mistake turns upon the intention of the person lodging the writ at the time it was filed as determined on the evidence in light of all the surrounding circumstances.[10]
Applying the principle to the facts in Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd, Mildren J said
It is clear that if a solicitor for an insurer, intending to issue proceedings in the name of a person whom he identified by a particular description, was mistaken as to the name of the person who answered that description, that is a mistake in the name of a party.[11]
The evidence
It is common ground that on the day he was injured the worker was employed by MAS Australasia Pty Ltd (MAS) and not by the plaintiff. It is clear that a mistake has been made in commencing the proceeding in the name of the plaintiff and not MAS. The issue in this application is whether that mistake is as to the name of a party within the meaning of r 36.01(4).
The evidence for the plaintiff was contained in Mr Nutt’s affidavit. The defendants relied upon the affidavit of Ingrid Olga May Lehman, solicitor of Colin Biggers & Paisley, solicitors for the first defendant, affirmed 19 August 1991 (Ms Lehman’s affidavit), the affidavit of Nicholas Sam Salagaras, of Hall & Wilcox, solicitors for the second defendant, affirmed 20 August 2021 (Mr Salagaras’ first affidavit) and the affidavit of Nicholas Sam Salagaras affirmed 16 November 2021 (Mr Salagaras’ second affidavit). The plaintiff also relied upon these affidavits.
Mr Nutt deposes that he is a partner of Sparke Helmore Lawyers and the solicitor with conduct of the proceeding on behalf of the plaintiff. His firm is instructed by AAI Limited trading as GIO NT (the insurer), who is the workers’ compensation insurer of the plaintiff and of MAS. Mr Nutt says that his firm was instructed by the insurer to commence proceedings against the first and second defendants to recover workers’ compensation payments made to the worker on behalf of his employer in accordance with the RTW Act. A copy of the workers’ compensation policy schedule applicable to the employer is annexure GWN-4 to Mr Nutt’s affidavit. It shows that there are six companies insured under the same workers’ compensation insurance policy number, including the plaintiff and MAS.
Mr Nutt also deposes that the writ was drafted, settled and filed at a time when Mr Colin Davidson was the solicitor with conduct of the matter. There was no evidence from Mr Davidson in relation to this application. However, as the defendants conceded, the lack of that evidence was satisfactorily explained.
Ms Lehman’s affidavit annexes (IL-1) a letter from Mr Davidson of Sparke Helmore to the first defendant dated 19 June 2019. The letter states that Sparke Helmore act on behalf of the employer (correctly identified as MAS) on instructions from the insurer and purports to be in compliance with Practice Direction 6 of 2009 (PD6). The letter gives notice of proposed litigation to enforce the indemnity in s 176(3) of the RTW Act and sets out the alleged factual and legal basis for the claim.
Mr Salagaras’ first affidavit annexes (NS-3) a letter from Mr Davidson to the second defendant dated 8 April 2020. This letter is in similar terms to that directed to the first defendant on 19 June 2019 referred to above, and also purports to be in compliance with PD6. The letter alleges that the worker was an employee of MAS, that the second defendant owed the worker a duty of care which was breached resulting in injury, and states that the employer is seeking recovery, in accordance with s 176(3) of the RTW Act, of amounts of compensation which are set out.
Mr Nutt deposes that on the basis of his review of Sparke Helmore’s file he believes that “it is likely that Mr Davidson incorrectly identified AGC as Mr Collette’s employer”.[12] The basis for Mr Nutt’s belief was a letter which is annexure IL-4 of Ms Lehman’s affidavit[13] and, he explained in a later letter to Hall & Wilcox, documents which are part of annexure NS-7 to Mr Salagaras’ second affidavit.[14]
On 15 April 2021 Mr Davidson wrote to the lawyers for both defendants in response to Ms Lehman’s query about the correct name of the plaintiff in her email to Ms Bradie Mercer, paralegal at Sparke Helmore, of 6 April 2021.[15] Unlike the PD6 letters referred to above, in this letter he referred to the plaintiff, not MAS, as the employer. Mr Davidson wrote:
…it was brought to our attention the correct employer entity for the injured worker is AGC Industries Pty Limited, not MAS Australasia Pty Limited. AGC Industries, like MAS Australasia, is a corporate structure associated with AusGroup Industries. The worker, when completing the workers’ compensation claim form incorrectly noted MAS Australasia as his employer, however further investigations reveal the correct employer is AGC Industries Pty Limited.
It was not until 30 June 2021 that Mr Davidson emailed the solicitors for the defendants stating that he had obtained a copy of the worker’s employment contract which showed that the employer was MAS.[16] In that email Mr Davidson wrote:
The contract shows the Worker was employed by MAS Australasia Pty Ltd. It appears this company is a wholly owned subsidiary of AGC who we were wrongly instructed employed the worker. We have also provided a Certificate of Currency which shows the entire AGC Group were insured under the same policy. To ensure we are technically correct in the naming of the Plaintiff we will draft the Statement of Claim with the correct entity as the plaintiff.
Some further light is shed on what happened by the email exchanges between 4 and 17 February 2021 involving Mr Davidson, Ms Mercer and Ms Carly Davies. Ms Davies was a Technical Advisor employed by the insurer and the officer responsible for instructing Mr Davidson. Copies of those emails are annexure NS-7 to Mr Salagaras’ second affidavit.
The evidence from the email exchange is as follows:
(a)Mr Davidson emailed a draft writ to Ms Davies on 10 February 2021 at 10.29am and in the body of the email he says:
Please find attached Writ for filing the Supreme Court by 18 February 2021. If you could let me know if you are happy with the document. There is a question at the top just to check we have the correct entity. If you can please confirm this is the case.
(b)At 12.29pm the same day Ms Davies replied:
Thanks so much Colin, our policy for this claim is under AGC Industries Pty Ltd – ABN 57079939898 but I saw MAS is on the claim form – can we have both to cover all bases?
I am happy with the content of the writ.
(c)It then appears that Mr Davidson replied at 3.32pm asking:
Does AGC trade as MAS?
(d)The response from Ms Davies as the emails are attached appears to be:
Hey Colin, I am not sure as they have two separate ABN’s.
I say appears because although it is logical that Ms Davies’ email responded to Mr Davidson’s question, and that is how the emails are presented in the annexure, the timing of the email from Ms Davies is confusing. At page 10 of the annexure there is a copy of the email to Mr Davidson dated 10 February 2021 sent at 12.58pm and at page 15 an email in the same words, but without annexures, is time stamped 2.28pm the same day. Both of these emails are time stamped earlier than Mr Davidson’s email asking the question. There is no explanation for this.
(e)The next email is from Mr Davidson to Ms Mercer, who was working with him as a paralegal. He forwarded the email train described above to her on 12 February 2021 at 9.39am and wrote:
Can you recheck the below to see what is right. Surely there can only be one employer really?
(f)Ms Mercer responded to Mr Davidson on 17 February 2021 at 10.21am saying:
I have made amendments to the writ attached – just changed the employer to AGC Industries Pty Ltd.
There’s an email on file from Carly stating this was the employer listed on the policy.
Are you happy for me to finalise with your e-sig today and file?
(g)Mr Davidson then appears to have responded to Ms Mercer saying “yes please”. This email as printed is time stamped 8.53am, before Ms Mercer sent the email to which it appears to respond. Again this is unexplained.
(h)At 12.01pm on 17 February 2021 Ms Mercer emailed Ms Davies stating:
Having checked the relevant rules we were unable to insert two plaintiffs as we cannot allege both employed the Worker so we have inserted AGC as the relevant employer in line with your instructions and the settlement agreement. We confirm we have filed the Writ this morning. We will provide a sealed copy for your records once it is to hand.
(i)Ms Davies responds thanking Ms Mercer and Mr Davidson but makes no further comment.
The settlement agreement referred to by Ms Mercer, and also by Mr Davidson in his letter to the solicitors for each of the defendants on 14 April 2021, is annexure IL-6 to Ms Lehman’s affidavit. The agreement appears to be a lump sum settlement agreement pursuant to s 78A of the RTW Act relating to the worker’s injury. The parties are the worker, the plaintiff and the insurer. MAS is not mentioned. The agreement was signed “by an authorised representative of AAI Limited t/as GIO on behalf of AGC Industries Pty Ltd” on 13 January 2020. There is no evidence about how the settlement agreement came to be prepared. The address of the plaintiff and the insurer is given as Sparke Helmore’s Darwin office. The settlement agreement names the employer as AGC Industries Pty Ltd.
Consideration
The defendants argued that the relevant decision maker, and the person responsible for filing the writ, was not Mr Davidson but Ms Davies. This was put, essentially, on the basis that Mr Davidson sought Ms Davies’ instructions. While Ms Davies clearly gave instructions, which is not surprising given that she was the instructing officer of the insurer, the evidence establishes that it was Mr Davidson who was ultimately responsible for acting on those instructions and filing the writ. He was the one who made the relevant decisions. This is clear from his actions and his interactions with Ms Mercer. In particular, I note that the writ was already filed by the time that Mr Davidson reported, via Ms Mercer, to Ms Davies about the decisions made as to its final form. The fact that Ms Davies did not take exception to the “in accordance with your instructions” comment in Ms Mercer’s email is not, in context, evidence that Ms Davies was taking responsibility for the writ from Mr Davidson. On a proper reading of the emails Ms Davies did not clearly instruct at any point that the proceeding be issued in the name of the current plaintiff, rather she went along with the suggestion of Mr Davidson.
The emails show that Mr Davidson turned his mind to the question of the identity of the worker’s employer. He asked Ms Davies for clarification as to the correct employer, but she did not know. Mr Davidson then turned the work of identifying the correct party over to Ms Mercer. She looked at the file and noted the settlement deed, which named the wrong employer. She also looked at an email in which she saw that Ms Davies said that the plaintiff was listed on the policy. It is probable that this was the same email in which Ms Davies included the qualification about MAS being on the claim form, as set out above.[17] Based upon her file review, Ms Mercer inserted the plaintiff’s name on the writ and obtained Mr Davidson’s instruction to file it.
It was argued by the defendants that this was a case where there was a mistake as to whether the defendants were legally liable to the plaintiff, not a mistake as to the plaintiff’s identity. They argue that there was always an intention to issue in the name of the plaintiff. It is correct that the plaintiff was not named as a result of a misnomer or clerical error. The solicitor for the insurer considered who should be the correct party and chose the plaintiff. However, the fact that a plaintiff was deliberately named in the sense that its naming did not result from clerical error does not mean that there can never be a mistake in the name of a party within the meaning of the rule. The making of a deliberate but mistaken choice as to a party does not mean that it automatically follows that the mistake must be as to legal liability rather than identity. The whole of the circumstances must be examined.
Contrary to the defendants’ submission, this is a case wholly distinguishable from the facts in Mannin because in that case the intention of the solicitor, based on his instructions, was that the purchaser of the supermarket would be the plaintiff and that was the name in which the proceeding was commenced. The mistake in that case was as to the nature of the legal remedy which was available to the plaintiff, an error of law as to the plaintiff’s rights, not the name of the party.[18] The solicitor in Mannin had made no error. The opposite fact situation applies here.[19]
The defendants also argued that there was insufficient evidence upon which it could be established that there was a mistake in the name of the plaintiff. They pointed in particular to the fact that Ms Davies did not give evidence on the application and submitted that a Jones v Dunkel[20] inference should be drawn that her evidence would not have assisted the plaintiff’s case.
A Jones v Dunkel inference does not go so far as to allow an inference that the evidence not called would have been damaging to the party not calling it. Nor can it be used to fill gaps in the evidence or to convert conjecture into inference.[21] Further, an inference that evidence not called would not have assisted a party does not prevent the drawing of any inference favourable to that party where it is otherwise justified. In other words, if the case of the party who did not call the evidence is proven by other evidence the inference that the witness not called would not assist does not detract from that proof.[22]
On the evidence I have outlined above there was never any suggestion that any party other than the worker’s employer would be the proper plaintiff. This is plain from the PD6 letters sent in 2019 and 2020 and supported by the terms of the endorsement on the writ. The email exchanges between the insurer and its solicitors at the time of filing of the writ also support an inference that the intention of all three participants, in particular Mr Davidson, was to sue in the name of the employer. That is why Mr Davidson asked Ms Davies to confirm the plaintiff’s name when he sent her the draft writ and why he asked Ms Mercer to get to the bottom of it (“there can’t be two employers”) when Ms Davies did not give a clear answer. Even after the writ was filed and Ms Lehman pointed out to Mr Davidson the error he maintained that the name of the plaintiff was correct, because he thought that company was the employer, until he changed his view having received a copy of the employment contract some months later.
On all of the evidence the applicant has established on the balance of probabilities that Mr Davidson intended to issue proceedings in the name of the worker’s employer but was mistaken as to the identity of that party. This is the case notwithstanding the timing anomalies in the email train referred to above, which I do not regard as material looking at that evidence as a whole, and the unexplained absence of direct evidence from Ms Davies which was of minimal importance given that the facts were established by other, mainly documentary, evidence.
Prejudice to the defendants – Limitation period
The next question is whether, if a limitation period has expired, there is any prejudice to the defendants such that the application to amend should be refused.
For the purpose of this application I take the view that s 12(1)(d) of the Limitation Act 1981 (NT) (Limitation Act) applies to this proceeding because an action for enforcement of the indemnity under s 176(3) of the RTW Act is properly characterised as an action to recover money payable by virtue of an enactment.[23] The applicable limitation period is therefore three years from the time that the cause of action first accrued.
There are two obvious options as to date of accrual of the cause of action: the date of the injury to the worker, or the date(s) on which payments were made on behalf of the employer under the RTW Act.
The New South Wales Court of Appeal considered the identical limitation provision[24] and similar indemnity provision[25] in South Eastern Sydney Area Health Service v Gadiry[26] and held that the right to indemnification does not arise under the New South Wales indemnity provision, and therefore time does not start to run, until a payment of compensation is actually made and, in addition, that each payment of compensation is a separate transaction attracting the statutory right to indemnity. Therefore, if payments are made periodically, the right to indemnity can be progressively barred as time limits expire in relation to each payment.[27]
While a determination as to whether a particular limitation period applies is generally a matter for trial rather than interlocutory proceedings, for the purpose of this application I take the view that, were the employer to commence its proceeding today, claims for amounts of compensation paid more than three years ago would be statute barred.
It was conceded by the defendants’ counsel that the defendants could not point to specific prejudice except the loss of the opportunity to take a limitation point.[28] Loss of a potential limitation defence is not prejudice in the conduct of the defence within the meaning of r 36.01(6).[29]
The defendants also argued that the amendment should be refused in the exercise of the discretion because the mistake is Ms Davies’ own fault, that she could easily have checked the correct name of the employer and that she failed to do so. The defendants also argue that there is no explanation as to why this did not occur. This submission assumes that Ms Davies was the person with ultimate responsibility for filing the writ, which I have found is not correct. Leaving that to one side, the fact that the mistake could have been avoided had the insurance clerk, or the solicitor, used more care is relevant, but not determinative. There is no suggestion of bad faith. This proceeding is at an early stage procedurally and the defendants have conceded that they cannot point to any relevant prejudice if the amendment is allowed.
Amendment of the writ
The plaintiff also seeks leave pursuant to r 36.01(1) to amend the writ by removing the endorsement in its entirety and substituting a statement of claim in the form of annexure GWN-1 to Mr Nutt’s affidavit.
The defendants object to this amendment on the ground that the proposed statement of claim introduces a new cause of action and that cause of action is statute barred.
Although questions of limitation should properly be decided at trial, for the reasons given above I am approaching this application on the basis that the right to enforce the indemnity under s 176(3) of the RTW Act is a separate cause of action independent of any cause of action which the worker may have had and subject to the limitation in s 12(1)(d) of the Limitation Act and that, therefore, a significant part, but not the whole, of the plaintiff’s claim for indemnity would likely be out of time if the proceeding commenced now.
The plaintiff’s counsel submitted that the proposed amendments do not substitute a new cause of action because the material facts upon which the claim is based have not changed.[30]
Rule 5.04 requires that a writ contain an endorsement of claim which can be either a statement of claim[31] or, in accordance with sub rule 5.04(2)(b):
a statement sufficient to give, with reasonable particularity, notice of the nature of the claim and the cause of the claim and of the relief or remedy sought in the proceeding.
The word “cause” in this rule refers to the cause of action, and not the physical acts out of which the claim arises.[32]
In Williams v Milotin,[33] the High Court said:
When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce.
Although an endorsement which is not a statement of claim does not require the same level of particularity as a pleading, it should include sufficient facts so that the defendant can understand the nature of the claim, the cause of action and the relief or remedy sought.[34] In this case the indemnity is created by the statute and without a reference to the statutory provision the endorsement does not disclose the legal right which the plaintiff seeks to enforce against the defendants.[35] Therefore I find that the proposed amendment introduces a new and different cause of action, albeit one arising on the same facts.
There can be no doubt that the amendment proposed by the plaintiff is necessary in order to determine the real issues in the proceeding. The endorsement as presently framed does not disclose a cause of action, or at least not one which has any reasonable prospects of success. The plaintiff was therefore required to amend, which could be done either by seeking to amend the writ pursuant to r 36.01 or by seeking leave to file a statement of claim alleging a new cause of action, presumably with corresponding amendment to the endorsement, pursuant to r 14.03. I do not think that there is any legal or practical difference flowing from the form of the application. In each case the considerations, and possible outcomes, are the same.[36]
Whether a new cause of action is added under r 14.03 with concurrent amendment of the endorsement, or an amendment is made to the writ under r 36.01, the amendment takes effect from the date of commencement of the proceeding and not from the date of the amendment. Therefore an amendment introducing a new cause of action will operate as if that cause were part of the original claim.[37] It was to this perceived injustice, where relation back deprived the defendant of a limitation defence, that the procedural rule in Weldon v Neal[38] was directed.
The rule in Weldon v Neal was abrogated in the Northern Territory by s 48A of the Limitation Act and, as that provision and r 36.01(6) make clear, the fact that an amendment will introduce a claim which is statute barred is not, of itself, a ground for refusing leave to amend.
The defendants submit[39] that because there is no equivalent to r 36.01(5) (providing that amendment in the name of a party relates from the date that the proceeding commenced) in relation to amendment by addition of a new cause of action, such an amendment should operate only from the date that it is made. For the reasons which follow, this submission should be rejected.
The rule in Weldon v Neal was concerned with the addition of causes of action, not parties. As Dawson J pointed out in Bridge Shipping, there has long been a difference in approach to the addition of a party, which does not relate back to the commencement of a proceeding, and amendments adding a cause of action, which do.[40] Therefore, the purpose of r 36.01(5) is to make it clear that an amendment to the name of a party which has the effect of substitution is an exception to the usual situation by specifically providing for relation back.[41] Such a provision is unnecessary in relation to an amendment to add a cause of action.
Further, and more fundamentally, if the defendants’ submissions were accepted, that approach would be completely at odds with the abrogation of the rule in Weldon v Neal.[42]
In Pentridge Village Pty Ltd (In Liq) v Capital Finance Australia Ltd (No 2) Connock J found that there was a power, pursuant to the identical Victorian rules, to order that amendments adding a cause of action commence from a date other than the date of the document they amend.[43] However, the occasion for making orders in that case arose in the context of a finding that there was potential prejudice to the defendant by the amendment, namely the potential loss of the ability to claim contribution, the extent of which could not be determined before trial.[44]
It is for the plaintiff to establish that there is no prejudice to the defendants in the conduct of their claim that cannot be met by an order for costs, an adjournment or otherwise. In this case there is no evidence of any such prejudice and I am satisfied that the plaintiff has discharged that burden. There is therefore no reason for the making of any ancillary orders in relation to the amendment, such as an order that the amendment operate only from a particular date, or be determined at trial.
The power to amend is discretionary and the Court must weigh all relevant factors including case management concerns.[45] In this case the proceeding, although commenced some time ago, is at an early stage. PD6 of 2009 was complied with before the writ was filed and before any limitation periods expired. There is no prejudice to the defendants as to the conduct of their defences. The evidence also shows that the defendants were always aware that the employer of the worker was the correct plaintiff.
This is an appropriate case for leave to amend to be granted. The defendants have been put to additional expense, however that can, in this instance be compensated by appropriate orders for costs, including costs thrown away.
Therefore I order that:
(a)The plaintiff have leave to amend the writ by substituting MAS Australasia Pty Ltd for AGC Industries Pty Ltd;
(b)The plaintiff have leave to amend the name of the First Defendant to “Trepang Services Pty Ltd (as Trustee for Trepang Services Unit Trust)”;
(c)The plaintiff have further leave to amend the writ by removing the endorsement of claim and substituting the statement of claim in the form set out in annexure GWN-1 to the Affidavit of Garry William Nutt sworn 4 October 2021.
I will hear the parties as to costs.
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[1] The endorsement is misconceived as to the cause of action, see discussion below as to amendment.
[2] Wickham Point Development Pty Ltd v Commonwealth of Australia [2018] NTSC 7 at [3] and see generally Grant, M., Civil Procedure Northern Territory, Presidian Legal Publications, at [5.36.29] and [5.36.56].
[3] See Smart v Stuart (1992) 2 NTLR 43; Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd (1996) 133 FLR 347; Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTCA 119.
[4] Contrast with substitution of a party under Order 9. Note that r 9.11(3)(a) sets out the position in relation to a defendant but as to a plaintiff see discussion in Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd (1996) 133 FLR 347 at 349 and Grant, above n1, at [5.9.506].
[5] Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231.
[6] Above, p 260-261.
[7] Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231, per McHugh J at 261.
[8] For example Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd (1996) 133 FLR 347; Knott v JN Mousellis Civil Contractors Pty LtdandAnor [2016] NTSC 59.
[9] For example, Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231; Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTCA 119.
[10] Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTCA 119, above n9, at p 24, referring to Donaldson LJ in Evans Constructions Co Ltd v Charrington & Co Ltd [1983] QB 810.
[11] Dee Jay Engineering Pty Ltd v Moline Management Pty Ltd (1996) 133 FLR 347 at 352.
[12] Nutt, 4 October 2021, at [36].
[13] Nutt, 4 October 2021, at [35].
[14] Salagaras, 16 November 2021, annexure NS-7, including letter from Sparke Helmore to Hall & Wilcox dated 25 October 2021.
[15] Affidavit of Ingrid Lehman, 19 August 2021, annexure IL-3.
[16] Above n16, annexure IL-10.
[17] Because Mr Nutt wrote in his letter of 25 October 2021 (part of NS-7) to the defendants that the relevant documents were the documents attached to that letter, which did not include any other emails, and that was not challenged. An earlier email, if that was what was referred to by Ms Mercer, would have been relevant and therefore should have been disclosed if it existed.
[18] Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd [1997] NTCA 119, per Martin CJ at p 3 and Kearney J at p 38.
[19] The present case is much closer to the facts in Knott v. JN Mousellis Civil Contractors Pty Ltd and Anor [2016] NTSC 59, but each case turns on its own circumstances.
[20] (1959-60) 101 CLR 298.
[21] Manassen Holdings Pty Ltd v Commercial & General Corporation Pty Ltd [2019] SASC 171 at [164].
[22] ASIC v Hellicar (2012) 247 CLR 345 at [167]-[170].
[23] Ceric v CE Health Underwriting and Insurance (Australia) Pty Ltd (1993) 91 NTR 26, at 32 which considered the enforcement of a charge attaching to insurance monies created by the Law Reform (Miscellaneous Provisions) Act 1956 (NT). Note that Mildren J’s decision was overturned on Appeal in Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd (1994) 99 NTR 1, but not on this point. See also Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, where the High Court held that a provision in the same terms as s 176(3) of the RTW Act, namely s 22 of the repealed Workmen’s Compensation Ordinance 1949-1968 (NT) (to which s 12(d) the Limitation Act 1981 (NT) did not apply because it had not been enacted) did not prevent an employer suing to enforce the indemnity although the time limit in the Compensation (Fatal Injuries) Ordinance 1938 (NT) operated to prevent an action by the dependants of the deceased worker. This case was discussed in Workcover Queensland v AMACA Pty Ltd [2010] HCA 34 at [28] – [31].
[24] Limitation Act 1969 (NSW), s 14(1)(d).
[25] Workers Compensation Act 1987 (NSW), s 151Z(1)(d), which is similar, but not identical, to the NT legislation.
[26] (2002) 54 NSWLR 495 at [40] – [41]. An application for special leave to appeal to the High Court on this point failed for insufficient prospects of success: Gadiry v South Eastern Sydney Area Health Service [2003] HCATrans 680 (11 April 2003). The reasoning of the Court of Appeal in relation to the accrual of the cause of action was predicated on the use of “compensation paid” not “payable” in the legislation. The NT legislation also refers to “compensation paid”.
[27] Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386 at [34], [42] – [55].
[28] Transcript 9 February 2022 at p 29.
[29] Wintle v Conaust (Vic) Pty Ltd [2001] VSC 315 at [16].
[30] Transcript 22 February 2022 at p 31.
[31] If it is headed “Statement of Claim” in accordance with r 5.04(3). The definition of “pleading” in r 1.09 does not include an endorsement which is not also a statement of claim.
[32] Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733 at 737.
[33] (1957) 97 CLR 465 at 474. See also Creedon v Measey Investments (1988) 91 FLR 318 at 320.
[34] Above n 34.
[35] The Act relied upon would be required to be pleaded in a statement of claim under r 13.02(1)(b).
[36] See discussion as to applying for leave to amend the endorsement or to serve a statement of claim in order to overcome an irregularity in an endorsement in Williams, Civil Procedure Victoria, LexisNexis, [I 36.01.90]. Note also r 36.01(8).
[37] Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) [2020] VSC 284 at [20].
[38] (1887) 19 QBD 394.
[39] Defendants written submissions at [21].
[40] Bridge Shipping, above n 5, per Dawson J at 236; see also Creedon v Measey Investments Pty Ltd (1990) 60 NTR 19 at 29-30.
[41] Reflected in the rules in r 9.11(3).
[42] [2020] VSC 284, at [57].
[43]Above, at [92] – [94].
[44] Above, [83] – [90].
[45] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 217.
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