ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
Citation  :PETKOV -v- ALINTA 2000 LTD [2012] WADC 40
File No  :CIV 864 of 2007

Catchwords:

Practice and procedure - Parties - Substitution - Mistake in the name of the party - Mistake not discovered until after limitation period expired - Power to amend writ or pleading with leave - Whether misleading or such as to cause any reasonable doubt as to identity of intended party - Rules of the Supreme Court 1971 (WA) O 21 r 5

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Application for leave to appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr G R Hancy
First Respondent           :     Mr G T Stubbs
Second Respondent      :     Mr G T Stubbs

Solicitors:

Appellant:     DLA Piper Australia
First Respondent           :     Dwyer Durack
Second Respondent      :     Dwyer Durack

Case(s) referred to in judgment(s):

ABB Asea Brown Boveri Ltd v Hiscox Dedicated Corporate Member Ltd [2007] EWHC 1150 (Comm)
Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701; [2008] 1 WLR 585
Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Brown v Jammal [1995] NSWCA 62
Carter v O'Connell [2009] WASC 245
Davies v Elsby Bros Ltd [1961] 1 WLR 170
Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] HCATrans 400
Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507
Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810
Honnery v McKenzie (Unreported, QCA, Appeal No 12 of 1997, 16 December 1997)
Horne‑Roberts v SmithKline Beecham plc [2002] 1 WLR 1662
International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Lloyd's Rep 474
Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212
Lockheed Martin Corporation v Willis Group Ltd [2010] EWCA Civ 927
Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703
Petkov v Alinta 2000 Ltd [2012] WADC 40
R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545
Rodriguez v R J Parker (Male) [1967] 1 QB 116
Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v American Home Assurance Co (1997) 18 WAR 516
The 'Sardinia Sulcis' v The 'Al Tawwab' [1991] 1 Lloyd's Rep 201

MARTIN CJ: This application for leave to appeal should be dismissed for the reasons given by Murphy JA, with which I agree. However, I wish to add the following observations.
This application for leave to appeal should never have been brought. The corporate group using the name Alinta in various forms carries on a substantial business supplying gas to Western Australian consumers, including domestic consumers. The respondents, Mr and Ms Petkov, claim damages arising from an explosion which occurred in their residence as a result of a gas leak. They say that Alinta is responsible for the leak.
About a year before the explosion occurred, Alinta's business was restructured by separating that part of the business which involved sales to consumers, from that part of the business which involved maintenance of the gas distribution network. However, both parts of the business were conducted by wholly-owned subsidiaries of the parent company, Alinta 2000 Ltd (Alinta 2000).
Solicitors acting on behalf of Mr and Ms Petkov mistakenly commenced proceedings against Alinta 2000. The writ was served upon that company within the relevant limitation period. The solicitors' mistake would have been obvious to anyone within the Alinta group who received and considered the writ and who was presumably aware of the corporate structure under which Alinta carried on its business. However, neither Mr or Ms Petkov, nor their solicitors were advised of the mistake until well after the limitation period had expired. Thereafter, Alinta 2000 filed a defence which relied upon the corporate restructure and which asserted that it was not the corporate entity responsible for the supply of gas to the premises occupied by Mr and Ms Petkov.
Mr and Ms Petkov applied to amend the name of the defendant to correspond with the name of the corporate entity responsible for the supply of gas to their premises, thereby correcting the obvious mistake made by their solicitors. Alinta 2000 unsuccessfully opposed the application. Now it applies for leave to appeal from the decision allowing the amendment.
The primary obligation of the courts is to administer justice. Refusal of the amendment would be the antithesis of justice. It would represent the triumph of technicality and form over substance which would prevent Mr and Ms Petkov pursuing a plainly arguable case. Happily, O 21 r 5 of the Rules of the Supreme Court (WA) provides the court with ample

power to do justice in this case by amending the name of the defendant to correspond with the entity which Mr and Ms Petkov always intended to sue.

The forensic strategy adopted by Alinta in this case reflects no credit upon whoever was responsible for devising it. The information available to the court does not enable responsibility for that strategy to be identified, as it may have been devised within the Alinta group or within an insurer acting on its behalf.
The injustice of the forensic strategy adopted on behalf of the Alinta group is matched by its lack of legal merit. It would have been patently obvious to any reasonable reader of the writ and statement of claim cognisant of the Alinta group's corporate structure and of the terms of the contract with consumers that the plaintiffs intended to sue the entity responsible for selling and supplying gas. Such a reader would have known that that entity was Alinta Sales Pty Ltd. Any argument to the contrary was always doomed to fail.
BUSS JA: The respondents are the plaintiffs in a pending District Court action.
On 22 March 2012, Keen DCJ granted the respondents leave to amend the name of the defendant from Alinta 2000 Ltd (Alinta 2000), being the name of the defendant as stated in the writ of summons, to Alinta Sales Pty Ltd (Alinta Sales) and ordered that the writ of summons be amended accordingly.
When leave to amend was granted, the limitation periods applicable to the causes of action pleaded by the respondents had expired.
Alinta 2000 is the appellant. It has applied for leave to appeal against the primary judge's decision.
I agree with Murphy JA (with whose reasons Martin CJ has expressed his agreement) that the application for leave to appeal should be dismissed. My reasons are as follows.

The relevant facts and circumstances and the primary judge's reasoning

The relevant facts and circumstances and the primary judge's reasoning are set out in the reasons of Murphy JA. I will not repeat them, except to the extent necessary to explain my reasons.

The ground of appeal

Alinta 2000's ground of appeal reads:
The learned primary judge erred in fact, and, or, in law in finding in effect that there was no reasonable doubt that [Alinta Sales] was the defendant that the respondents intended to sue in that:
1.1The learned primary judge erred in fact in failing to find that the respondents intended to sue a defendant as operator of infrastructure and supplier of gas, deliberately identified and named as [Alinta 2000], and that was not a mistake merely about the name of the party that was without doubt the intended defendant;
1.2The learned primary judge erred in fact or law in finding at reasons for decision [65] that the reference in the statement of claim to 'the defendant's gas main line and copper riser connecting to the meter box' was 'not a positive assertion of ownership [but] can be seen as a general way of describing the equipment through which the supply of gas is made by the defendant' in that the plea was an allegation about operator or owner;
1.3The learned primary judge erred in fact and law in finding at reasons for decision [67] that there was no misunderstanding by the appellant about the nature of the plaintiffs' claim and description of the entity that would be liable in that the finding was not supported by evidence or findings of fact;
1.4The respondents' application was first made as an application to substitute Alinta Sales and Alinta Gas Networks Pty Ltd as two defendants in place of Alinta 2000 as one.

Order 21 rule 5 of the Rules of the Supreme Court 1971 (WA)

Order 21 r 5 of the Rules of the Supreme Court 1971 (WA) (the Western Australian Rules), which applies to proceedings in the District Court, is concerned with the power of the court to grant leave to amend a writ of summons or a pleading. It provides, relevantly:
(1)Subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5); and
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.
(3)An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
(4)…
(5) An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
Order 21 r 5(3) is a remedial provision. It should be given a beneficial interpretation. Indeed, it is proper to give the provision the widest interpretation which its language will permit. See Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, 260 – 261 (McHugh J, Brennan & Deane JJ agreeing); Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v American Home Assurance Co (1997) 18 WAR 516, 537 (Parker J, Kennedy J agreeing).
By O 21 r 5(2) read with O 21 r 5(3), the court's power to allow an amendment under O 21 r 5(2) to correct the name of a party after any relevant limitation period current at the date of issue of the writ has expired, and notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party, is conditional upon the court being satisfied that:
(a)there was a mistake;
(b)the mistake was genuine;
(c)the mistake was not misleading; and
(d)the mistake was not such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued,
and upon the court thinking that it is just to allow the amendment.
I will consider these conditions, as a matter of principle, where the mistake relates to the name of the person intended to be sued. I will then deal with the ground of appeal.

The criteria in O 21 r 5(3)

Order 21 r 5(3) states in effect that the court may grant leave to amend under O 21 r 5(2) 'if the court is satisfied' in relation to the criteria in O 21 r 5(3).
The court will be 'satisfied', for this purpose, if it is affirmatively of the opinion that each criterion has been made out.

The overriding requirement in O 21 r 5(2)

There is an overriding requirement in O 21 r 5(2) that, where an application to the court for leave to make the amendment mentioned in, relevantly, O 21 r 5(3) is made after any relevant limitation period current at the date of issue of the writ of summons has expired, the court may nevertheless grant such leave, in the circumstances mentioned in O 21 r 5(3), if the court 'thinks it just to do so'.
The phrase 'thinks it just to do so' confers a discretion on the court. Where an application for leave to make the amendment mentioned in, relevantly, O 21 r 5(3) is made after any relevant limitation period current at the date of issue of the writ has expired, the court may nevertheless, in its discretion, grant such leave, in the circumstances mentioned in O 21 r 5(3), if the court is of the opinion that it is in the interests of justice in the particular case for leave to be granted.

There must have been a mistake

The court must be satisfied that there was a mistake.
Order 21 r 5(2), read with O 21 r 5(3), contemplates, relevantly, that there was a person who the plaintiff intended to sue. A plaintiff who applies for leave to amend will necessarily have made a mistake in relation to the defendant. However, the mistake must be as to the name of the defendant. The writ of summons will not have correctly named the person who the plaintiff intended to sue. See Adelson v Associated Newspapers Ltd [2008] 1 WLR 585 [32] (Lord Phillips of Worth Matravers CJ, Jacob and Moses LJJ); Brown v Jammal [1995] NSWCA 62, 12 ‑ 14 (Kirby P, Handley & Sheller JJA agreeing).
In Bridge Shipping, McHugh J explained the nature of the mistake applicable under r 36.01 of the Rules of the Supreme Court (Vic):
The concluding words of sub-r (4) 'whether or not the effect is to substitute another person as a party' enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub‑rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make 'a mistake in the name of a party' not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake 'in the name of a party' because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake 'in the name of a party' because, although intending to sue a person whom the plaintiff knows by a particular description, e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub‑r (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub‑r (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub‑r (4) as dealing only with the case where the plaintiff says: 'The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X.' The sub‑rule applies equally to the case where the plaintiff says: 'The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X.' In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else (259 ‑ 260).
As McLure J noted in Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323, the majority in Bridge Shipping (Brennan, Deane, Toohey & McHugh JJ) rejected a submission that 'the court's power to correct a mistake in the name of a party was confined to cases of misnomer, misdescription, typographical or clerical error and the like but also covered cases where the plaintiff, intending to sue a person identified by a particular description, was mistaken as to the name of the person who answered that description' [39]. I agree with her Honour that the statement of principle by the majority in Bridge Shipping was intended to and does apply to O 21 r 5(3) of the Western Australian Rules [41]. See also Silverstone Holdings (537 ‑ 538).
So, an amendment 'to correct the name of a party', within O 21 r 5(3), may be allowed under O 21 r 5(2), notwithstanding that the effect of the amendment will be to substitute a new party, if the plaintiff intended to sue a person who the plaintiff knew by a particular description, but was mistaken as to the name of the person who answered that description.
Order 21 r 5(2), read with O 21 r 5(3), empowers the court to allow the substitution of a new defendant who is unconnected with the original defendant and unaware of the plaintiff's claim until after any relevant limitation period has expired. See Horne‑Roberts v SmithKline Beecham plc [2002] 1 WLR 1662 [44] (Keene LJ, Dame Elizabeth Butler-Sloss P & Hale LJ agreeing). It must be emphasised, however, that the court's power, in these circumstances (and generally), is subject to the discretion embodied in the overriding requirement in O 21 r 5(2). See [53] ‑ [58] below.

The mistake must be genuine

The court must be satisfied that the mistake sought to be corrected was a genuine mistake.
The mistake must be genuine in the sense that the plaintiff (including the plaintiff's solicitors or agents) must have made an honest mistake as to the name of the person intended to be sued.
When the writ of summons was prepared and filed at the court, the plaintiff will have made a choice as to the identity of the person to be sued. If the plaintiff, having made that choice, uses the wrong name for the defendant in the writ, the mistake as to the name may be corrected even though the name used may be a different legal entity from the person intended to be sued. The plaintiff cannot, however, change or reverse the plaintiff's original choice as to the identity of the person to be sued. See International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Lloyd's Rep 474, where Evans LJ (Peter Gibson LJ & Sir Iain Glidewell agreeing) said:
This interpretation of the rule derives not only from the phrase 'correct the name of a party' but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue [or, as the case may be, intended to be sued] (480).

If the court 'thinks it just' to grant leave to amend under O 21 r 5(2), in a case within the scope of the criteria specified in O 21 r 5(3), the person who the plaintiff intended to sue will not be able to plead any relevant limitation period because the amendment will be treated as correcting the mistake ab initio.
Hence, the emphasis upon the mistake being genuine.
The rule under consideration in International Bulk Shipping, namely O 20 r 5 of the Rules of the Supreme Court (UK) (the English Rules), came into operation on 1 October 1964. See The Annual Practice (vol 1, 1965) ccxxv, ccxxvii. Order 21 r 5 of the Western Australian Rules is relevantly identical to O 20 r 5 of the English Rules.

The mistake must not be misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued

The court must be satisfied that the mistake sought to be corrected was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. These are separate and distinct criteria. Each of them must be satisfied.See Honnery v McKenzie (Unreported, QCA, Appeal No 12 of 1997, 16 December 1997), 4 ‑ 5 (Davies, Pincus JJA & Lee J).
Although each criterion is expressed differently, it is apparent, from the purpose or object of O 21 r 5(3), that the criterion that the mistake must not be misleading is concerned with whether the mistake creates an erroneous impression as to the identity of the person who the plaintiff intended to sue.
In my opinion, the issue of whether the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued, in the context of O 21 r 5(3), is to be determined by the court on an objective basis. That is, the court is to determine whether it is satisfied that a reasonable person, upon reading the relevant document containing the mistake and with knowledge of the relevant legal and factual context, would not have been misled or had any reasonable doubt as to the identity of the person who the plaintiff intended to sue. The issue is not to be judged on a subjective basis. That is, the court is not to determine whether it is satisfied that a particular person or persons were not actually misled or did not actually have any reasonable doubt as to the identity of the person who the plaintiff intended to sue. See Lockheed Martin Corporation v Willis Group Ltd[2010] EWCA Civ 927 [45] (Rix LJ, Waller & Wilson LJJ agreeing). See also ABB Asea Brown Boveri Ltd v Hiscox Dedicated Corporate Member Ltd [2007] EWHC 1150 (Comm) [73] (Clarke J); Brown v Jammal (17); Mitchell (709) (James J).
The relevant part of O 21 r 5(3), namely 'the Court is satisfied that the mistake … was not misleading or such as to cause any reasonable doubt as to the identity of the party … intended to be sued', indicates that the requisite determination is to be made on an objective basis. In particular, this is apparent from:
(a)the reference to 'reasonable' doubt;
(b)the textual proximity of the 'misleading' criterion and the 'cause any reasonable doubt' criterion; and
(c)the absence of any reference to any person or persons (for example, the defendant who was erroneously joined or the person who the plaintiff intended to sue) having been or not having been actually misled or having had or not having had any actual reasonable doubt.
The application of an objective test to both criteria means that there will ordinarily be substantial, if not complete, overlap in determining whether, in a particular case, each criterion is satisfied. However, as I have mentioned, each criterion is separate and distinct. It is therefore necessary for each of them to be addressed.
In Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810, Charrington had granted the plaintiff a lease. The plaintiff wished to renew the lease. It commenced proceedings for that purpose and named Charrington as the defendant. However, Charrington had assigned the reversion of the lease to Bass, a company in the same group, for which Charrington acted as managing agent. The plaintiff made application to substitute Bass for Charrington under O 20 r 5 of the English Rules. Donaldson LJ (Griffiths LJ agreeing) said:
The applicant for leave to amend has to satisfy the court that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. On the facts of the present case, I do not see how Charringtons or Bass or anyone else familiar with the surrounding circumstances, could have been misled or could have had any real doubt as to the identity of the person intended to be sued (822).
In my respectful opinion, the second sentence in this passage, to the extent it applies a test as to whether Charrington, Bass or anyone else was subjectively misled, should be understood in the context of the overriding requirement in O 20 r 5(2) of the English Rules (being the equivalent of O 21 r 5(2) of the Western Australian Rules) that the court may grant leave in the circumstances mentioned in O 20 r 5(3) of the English Rules (being the equivalent of O 21 r 5(3) of the Western Australian Rules) if the court 'thinks it just to do so'.
Also, in my respectful opinion, statements to similar effect contained in other English cases concerning O 20 r 5 of the English Rules are to be understood in that context:
(a)in Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703, Lord Denning MR (Davies LJ agreeing) said that the secretary of the defendant 'must have realised … as soon as he read the writ and the indorsement' that the plaintiff's solicitors had made a genuine mistake as to the name of the person to be sued (719);
(b)in Mitchell, Russell LJ (Davies LJ agreeing) said that the secretary of the defendant 'could not have failed to observe' that the name was an error (721); and
(c)in Rodriguez v R J Parker (Male) [1967] 1 QB 116, Nield J said that the defendant 'knew full well' that his son was the person who the plaintiff intended to sue (139 ‑ 140).
Further, the following observations of McLure J in Brandsma & Crockett should be understood in the context of the overriding requirement in O 21 r 5(2) of the Western Australian Rules:
The evidence establishes that the plaintiffs and their solicitors always intended to take action against the Practice Company. They mistakenly believed that the name of the Practice Company was Brandsma & Crockett Pty Ltd. That mistake led to the mistaken belief that the Service Company was the Practice Company. At all material times from the commencement of the counterclaim, the Practice Company, its agents and insurer understood that it was the Practice Company who was the fifth named defendant [45].
In Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507, the Court of Criminal Appeal of New South Wales heard an application for leave to appeal from the decision of a judge in the Land and Environment Court refusing an application by a prosecutor to amend a summons in a prosecution brought under pt 75 of the Supreme Court Rules 1970 (NSW) (the New South Wales Rules). In their joint reasons, Hunt AJA, Barr & Johnson JJ considered the proper construction and application of pt 20, r 4 of the New South Wales Rules.
Part 20 was concerned with amendment. Part 20, r 1 provided, relevantly:
(1)The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
…
(3)Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.
Rule 4 provided, relevantly:
(1)Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.
…
(3)Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
In Epacris, the defendant submitted that the primary judge had wrongly interpreted r 4 as permitting him to make a subjective assessment as to whether the defendant had in fact been misled or had in fact a reasonable doubt as to the identity of the prosecutor. The Court of Criminal Appeal held that there was no doubt that the primary judge did make such a subjective assessment [31] ‑ [32].
Hunt AJA, Barr & Johnson JJ said that the language of r 4(3), namely the court must be satisfied that 'the mistake was not misleading nor [sic] such as to cause reasonable doubt as to the identity of the person intended to be made a party …', suggested that 'the inquiry is directed to the objective nature or quality of the mistake itself, and not to the subjective reaction to that mistake by the other party' [33]. However, after referring to comparable rules elsewhere in Australia and in England, and the decisions in Davies v Elsby Bros Ltd [1961] 1 WLR 170, Mitchell, Rodriguez, Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 and Brandsma & Crockett, their Honours said:
If we had been invited in 1965 [sic] ‑ when the progenitor of the Supreme Court Rules, Pt 20, r 4(3) was first introduced in England ‑ to determine whether the inquiry should be directed to the objective nature or quality of the mistake itself or to the subjective reaction to that mistake by the other party, we would have said that the wording of the rule indicates that [the] correct test is the objective one. But more than forty years since 1965 of judges treating the rule as if it permitted the subjective test to be applied, even though never expressly deciding the issue, leads us to conclude that it is too late now to insist that our view is the correct one. We are therefore not satisfied that the judge erred in the present case by making a subjective assessment as to whether the defendant had in fact been misled or had in fact had a reasonable doubt as to the identity of the prosecutor.
The objective nature or quality of the mistake made nevertheless remains the primary factor to be considered. That is clear from all of the decisions to which reference has been made. It should also be emphasised that, where the objective nature or quality of the mistake is not such that a reasonable person receiving the document would be misled or have a reasonable doubt as to the identity of the person intended to be made a party, that will ordinarily be the end of the matter. The subjective reaction of the particular recipient to the mistake in such a case (for example, by reason of an unfamiliarity with the English language) cannot prevail so that the amendment sought must be refused. The reaction to the mistake by the respondent to the application to amend plays a very minor role indeed ‑ and ordinarily only in favour of the applicant for amendment [40] ‑ [41]. (original emphasis)
The High Court refused an application for special leave to appeal against the decision of the Court of Criminal Appeal in Epacris. See Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] HCATrans 400.
Although r 4(3) of pt 20 of the New South Wales Rules was not materially different from O 21 r 5(3) of the Western Australian Rules, pt 20 of the New South Wales Rules did not include an express provision comparable to the overriding requirement in O 21 r 5(2) of the Western Australian Rules that where leave to amend is sought after any relevant limitation period current at the date of issue of the writ has expired, the court may nevertheless grant such leave, in the circumstances mentioned in O 21 r 5(3), if the court 'thinks it just to do so'.
Neither this court nor the Full Court of the Supreme Court of Western Australia has, to my knowledge, ever expressly decided whether the objective nature or quality of the mistake, or the subjective reaction of a particular person or persons, or both, is applicable to the court's determination under the relevant part of O 21 r 5(3). It is not too late, in my opinion, for this court to rule upon the proper construction of O 21 r 5(2) read with O 21 r 5(3). This court's guidance as to the proper construction of the rule should ensure that applications for leave to amend are made and considered within the correct legal framework and should facilitate the accurate adjudication of such applications according to law.

The court must think it just to allow the amendment

The overriding requirement is that the court must think it just to grant leave to amend.
As I have mentioned, the court, in determining whether it is satisfied that the mistake was not misleading or such as to cause any reasonable doubt, must not take into account whether a particular person or persons were or were not actually misled or had or did not have any actual reasonable doubt as to the identity of the person who the plaintiff intended to sue.
However, in my opinion, any actual misleading or any actual reasonable doubt of a person with a proper interest in opposing the application for leave to amend, and any consequential prejudice, will be a relevant matter to be assessed by the court (together with all other relevant matters) in considering the overriding requirement, namely whether it is just, within O 21 r 5(2), to grant leave to amend.
In Brown v Jammal, Kirby P said, in the context of the relevant rule of court (comparable to O 21 r 5(2)) then in force in the District Court of New South Wales:
That discretion remains to be exercised ('the Court may make an order') by reference to relevant considerations. These will include consideration of any prejudice which, by evidence or inference, the court considers the new party to suffer by reason of the making of the order substituting it for the party originally named (14).
Discretionary considerations, and the existence of any relevant prejudice, may well be of importance in a particular case, especially where the plaintiff proposes to substitute a new defendant who is unconnected with the original defendant and unaware of the plaintiff's claim until after any relevant limitation period has expired.
So, where the plaintiff applies for leave to amend the name of the defendant, and the effect of the amendment will be to substitute a new party, the person sought to be joined will have a proper interest in opposing the application. This person should be given notice of the application and an opportunity to be heard in opposition to it.

The merits of the ground of appeal

I agree with Murphy JA, generally for the reasons he gives at [117] ‑ [123] below, that, at all material times, the respondents intended to sue Alinta Sales, and that the mistake in naming Alinta 2000 as the defendant was not misleading, on an objective basis, or such as to cause any reasonable doubt, on an objective basis, as to the identity of the person who the respondents intended to sue.
As to ground of appeal 1.1, I agree with Murphy JA, generally for the reasons he gives at [124] below, that the primary judge did not make the alleged error of fact.
As to ground of appeal 1.2, I agree with Murphy JA, generally for the reasons he gives at [125] below, that this ground is without merit.
As to ground of appeal 1.3, I agree with Murphy JA, generally for the reasons he gives at [126] below, that this ground is without merit.
I also agree with Murphy JA, generally for the reasons he gives at [128] below, that, on the information before the primary judge:
(a)it should be inferred that, at all material times, Alinta Sales knew of the occurrence of the explosion in question and was aware of the proceedings brought by the respondents including the terms of the writ of summons and the pleadings; and

(b)neither Alinta 2000 nor Alinta Sales would have been misled or had any reasonable doubt, at any material time, as to the identity of the person who the respondents intended to sue.

As to ground of appeal 1.4, I agree with Murphy JA, generally for the reasons he gives at [127] below, that this ground fails.
MURPHY JA:

Introduction and overview

On 22 March 2012, Keen DCJ granted the respondents (the plaintiffs below) leave to amend the name of the defendant from Alinta 2000 Ltd (Alinta 2000) to Alinta Sales Pty Ltd (Alinta Sales) after the period of limitation for a claim against Alinta Sales had expired. Alinta 2000 seeks leave to appeal against that decision. In these reasons, I will, for convenience, refer to the respondents as the plaintiffs.
Alinta 2000 (and its subsidiaries) have had, over the years, a number of changes of name, the details of which are unnecessary to recount for present purposes. Prior to 1 July 2000, Alinta 2000 was the entity which owned certain gas distribution networks in Western Australia and, in addition, had retail contracts for the supply of gas to customers. The distribution network and the retail arm of Alinta 2000 was subsequently split and vested in two subsidiaries.
Alinta Sales and Alinta Gas Networks Pty Ltd (Networks) were both incorporated on 27 January 2000 and were, and are, wholly owned subsidiaries of Alinta 2000. Under the Gas Corporation (Business Disposal) Act 1999 (WA) which took effect from 1 July 2000, Alinta 2000's distribution business was vested in Networks, and its sales business was vested in Alinta Sales.
The plaintiffs alleged in the proceedings below that they were and are husband and wife and occupiers of certain residential property in Perth; that the registered proprietor of the property was the first plaintiff; that the first plaintiff was a customer for the provision of gas supply which was connected through a gas meter at the property; and that on 16 July 2001, as a result of a gas leak, gas entered the property and an explosion occurred, causing injury to the plaintiffs.
After the incident, the plaintiffs consulted solicitors and certain correspondence was entered into between the solicitors and a firm of loss adjusters, who investigated the incident on behalf of certain insurers. In

an affidavit sworn in support of their application below, the first plaintiff deposed to the effect that he had experienced depression and stress and had difficulty providing instructions to the solicitors. Subsequently, a new firm of solicitors was instructed on 5 April 2007. The new firm of solicitors issued a writ on 4 May 2007 against Alinta 2000 claiming damages arising out of the incident. Alinta 2000 filed a memorandum of appearance and on 8 June 2007 the plaintiffs filed their statement of claim. There followed various communications between the parties' solicitors in which it was agreed that a defence was not required to be filed until the parties had conferred in an informal conference. Ultimately, on 26 June 2009, after the limitation period had expired, the solicitors for Alinta 2000 wrote to the plaintiffs' solicitors informing them that it appeared that the plaintiffs had commenced proceedings against the wrong entity. A defence was filed on 30 July 2010 which, in substance, denied that the first plaintiff was a customer of Alinta 2000 at the time of the incident, and pleaded the divestiture of the distribution network and the sales business of Alinta 2000 with effect from 1 July 2000.

On 13 July 2011 the plaintiffs applied to amend the statement of claim and amend the name of the defendant. The summons initially sought leave to amend the name of the defendant from Alinta 2000 to Alinta Sales as first defendant, and Networks as second defendant. The matter was listed before Sweeney DCJ on 4 November 2011. On the morning of the hearing, however, the plaintiffs amended the summons so that the application was confined to amending the name of the defendant from Alinta 2000 to Alinta Sales. An adjournment occurred and the amended summons was ultimately heard before Keen DCJ on 27 January 2012.
The application by the plaintiffs was brought pursuant to O 21 r 5 of the Rules of the Supreme Court 1971 (WA). The primary judge said, in effect, that in an application of this kind, leave would be granted if the plaintiffs satisfied the court of three matters (Petkov v Alinta 2000 Ltd [2012] WADC 40 [26]):
(1)that the mistake sought to be corrected was a genuine mistake;
(2)that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; and
(3)that it is just to make the amendment.
At the hearing before Keen DCJ, counsel for Alinta 2000 said (ts 36) that as to the first element, Alinta 2000 did not take issue as to the genuineness of any mistake, and that, for the purposes of the application, the 'key part of it is whether the court is satisfied that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the party intended to be sued'. Keen DCJ was satisfied as to this second element, and the other two elements, and allowed the application. It is that decision which is the subject of this appeal.
For the reasons given below, in my view the appeal is without merit and I would dismiss the application for leave and the appeal.

The writ and the statement of claim

The indorsement of claim on the writ filed by the plaintiffs read, relevantly:
The Plaintiffs' claims are for damages for personal injuries sustained by them on or about the 16^th July 2001 at about 8.00pm when the Defendant's gas meter connected at the Plaintiffs' home…leaked gas as a result of which an explosion with fire occurred and the Plaintiffs' sustained injuries, loss and damage due to the Defendant's negligence and/or breach of contract and/or breach of statutory duty.
And the Plaintiffs claim damages…
The relevant parts of the statement of claim read:
3.The Defendant…carries on the business of selling and supplying gas and installing and maintaining gas connections to its customers in the State of Western Australia.
4.At all material times the First plaintiff was a customer of the Defendant for the provision of gas supply which was connected through a gas meter at the property.
5.It was an express or alternatively an implied contract between the First Plaintiff and the Defendant and/or the Defendant owed the Plaintiffs a duty of care that:-
5.1the Defendant would install a safe plant and equipment for the provision of gas supply at the property and keep it maintained at all times;
5.2the Defendant would implement and enforce a system to respond promptly and effectively to emergency calls for gas leaks;
5.3the Defendant would provide safety information to the Plaintiffs to prevent any injury and damage in the event of a gas leak at the property.
6.On the 16^th July 2001:-
6.1 at about 4.00pm the Second Plaintiff and her son, Michael Petkov, smelt gas odour and upon the Second Plaintiff's instructions, Michael Petkov telephoned and advised the Defendant's fault and emergency line of the gas leak and requested immediate assistance and was told that the response time was about 48 hours;
6.2at about 7.40pm, after returning home from his employment, the First Plaintiff telephoned the Defendant's faults and emergency line and demanded immediate assistance and was told that the gas technicians would attend in approximately 1 hour;
6.3at about 8.00pm a gas leak occurred at 600mm below ground level at a junction between a plastic supply line from the Defendant's gas main line and a copper riser connecting to the meter box the leaked gas entered the property and an explosion occurred due to operation of an electrical switch or equipment and as a result the First Plaintiff sustained injuries.
11.The injuries pleaded…were sustained by the Plaintiffs as a result of the Defendant's breach of contract to supply gas with safety and/or the Defendant's breach of duty of care owed to the Plaintiffs.
Particulars Of Breach
11.1The Defendant its servants or agents:-
11.1.1failed to maintain the plant and equipment for the provision of gas supply at the property in that the Defendant:-
11.1.1.1failed to carry out preventative maintenance on the plastic gas line supplying gas from the Defendant's main gas line to the property and the copper riser attached thereto and allowed it to disintegrate and rupture due to its age;
11.1.1.2 failed to implement and enforce a safety policy for replacement of aged plastic pipeline periodically before it becomes weathered or disintegrated;
11.2failed to implement and enforce a system to respond promptly and effectively to emergency calls in that the Defendant:-
11.2.1failed to employ adequate gas technicians to respond to emergency gas leaks promptly;
11.2.2failed to employ trained and competent staff in dealing with emergency telephone calls to be able to prioritise and screen the emergency calls;
11.2.3failed to allocate adequate resources to meet emergency situations;
11.3failed to provide the necessary information to avoid the accident such as:-
11.3.1to leave the property and wait in a safe location until the Defendant's emergency assistance crew arrived;
11.3.2.to open windows and doors if safe;
11.3.3not to light matches, torches or the like;
11.3.4not to use electrical appliances;
11.3.5not to use light switches.

The contract between Alinta Sales and its customers

Both parties in the primary court, and in this appeal, contended that the standard form contract which governs the sale of gas by Alinta Sales to its customers provides support for their respective contentions. The standard form contract is contained in sch 1 of the Gas Corporation Act and includes the following terms and conditions.
Clause 1 provides:
1.What these terms and conditions are about
These are the terms and conditions of the legally binding contract for us to sell you gas at the supply address, and for you to pay us for that gas.
These terms and conditions set out our and your rights and obligations regarding that sale.
A footnote to cl 1 notes that words in the contract that are italicised are defined in cl 31. The following definitions are relevant:
'contract' means the legally binding agreement between you and us, of which these are the terms and conditions;
'meter' means the equipment we have installed (or will install) at the supply address to measure the volume of gas you use (in the contract, the word 'meter' includes the short lengths of gas pipe which protrude from the meter);
'network equipment' means the meter and any pipes, pressure regulators or other equipment used to transport, measure or control gas for delivery to you, before (upstream of) the point where gas leaves the meter;
'we' and 'us' means [Alinta Sales] … and includes our employees, subcontractors, agents and successes in title;
'work' includes installing, operating, maintaining, renewing and replacing any network equipment;
'you' means the person to whom the gas is (or will be) supplied under the contract;
'your equipment' means all pipes and equipment used to transport, control or use gas after (downstream of) the point where gas leaves the meter.
Clause 2 provides that 'we will sell you gas on these terms and conditions' which 'allow us to turn off or reduce your gas supply in some situations'.
Clause 3 relates to payment for the use of gas. Clause 3.5 provides that in addition to paying the standard price, Alinta Sales may also charge fees for meter testing; final meter readings; turning off and turning back on the gas in certain circumstances; removing or physically disconnecting the meter and for replacing or physically reconnecting the meter.
Clause 4 relates to how the amount of used gas is calculated and outlines the basic function of the meter and how it operates. Clause 4.2 provides that the customer can ask to have their meter tested but that a fee will be charged if it is found to be measuring accurately or if the customer has damaged or interfered with the network equipment.
Clause 9 is headed 'Things you must tell us'. It provides that the customer must tell Alinta Sales as soon as possible if the customer becomes 'aware of any gas leak or other problem with the network equipment, at or reasonably close to the supply address'.
Clause 11 provides:
11.Network equipment and your equipment
Everything before (upstream of) the point where gas leaves the meter is network equipment. We will inspect and look after network equipment.
Everything after (downstream of) the point where gas leaves the meter is your equipment. You must inspect and look after your equipment. You must keep your equipment in good working order and good condition. You must not let anyone other than a certified gas installer work on your equipment.
You must protect network equipment from damage and interference. You must not use gas in a way that interferes with network equipment or with the supply of gas to anyone else, or in a way that causes loss to anyone else.
Clause 12 provides:
12. You must give us access to the supply address
You must let us have safe and unrestricted access to the supply address when we need it:
(a)to read the meter; or
(b)to inspect or work on any network equipment; or
(c)to turn off your gas supply if we think it necessary; or
(d)to inspect your equipment (although we are under no obligation to do so); or
(e)(at any reasonable time) for any other reason having to do with the contract.
We must give you at least 24 hours notice before coming onto the supply address, except:
(i) for a routine meter reading; or
(ii) in an emergency; or
…
A person coming onto the supply address on our behalf must show you, if asked, identification that he or she is our agent.
As noted earlier, by cl 31, 'work' in cl 12(b) includes 'installing' and 'maintaining' 'network equipment' and 'network equipment' includes the meter as well as pipes and other equipment used to transport gas up to the point where the gas leaves the meter.
Clause 16 relates to events beyond the control of Alinta Sales and is in terms:
16.If things happen beyond our control
...
Because we don't operate the gas distribution network (clause 29 explains this further), one of the things which can happen beyond our control is that the operator of that network doesn't transport gas. We will use our contract with that operator to try to make sure that this does not happen.
Clause 18 is headed 'When we can turn off your gas, and when we will turn it on again'. Clause 18.1 provides:
18.1Who turns off your gas
We don't operate the gas distribution network. It is owned and operated by [Networks], a separate company to Alinta Sales.
In general, where this clause 18 speaks of us turning off your gas, it will often be the operator of the gas distribution network that does so. Clause 29 tells you more about this.
Clause 18.4 deals with emergencies and provides:
18.4Emergencies
We can always turn off your gas without notice to you in an emergency, or if we need to do so to reduce the risk of fire or to comply with a law. If we do, you can get information by contacting our 24-hour emergency line. Our contact details will appear on each bill.
We will try to turn your gas on again as soon as possible. There is no fee for turning off your gas or turning it back on in this case.
Nothing in the contract limits our statutory powers in relation to emergencies and safety. If you ask us, we will give you a summary of those powers.
Clause 29, which is referred to in cl 18.1, provides:
29.Distribution operator
We don't operate the gas distribution network. It is owned and operated by [Networks], a separate company to Alinta Sales.
Where the contract speaks of us doing something (such as turning off your gas supply, or having access to the supply address, or inspecting, looking after or reading the meter), it will often be the operator of the gas distribution network that does so.
When that happens, it is because we have asked (or allowed) the operator of the gas distribution network to do so in our place.
We will try to make sure that our contract with the operator of the gas distribution network obliges the operator to do any things that these terms and conditions oblige us to do, but which in fact can only be done by the operator. (For example we promise in these terms and conditions that if we have turned off your gas due to work on the network, we will turn your gas on as soon as possible, but in fact this depends on how quickly the operator completes the work.)

The primary judge's reasons

The primary judge found, in effect (reasons [61] ‑ [71]) that:
(a)the Alinta Sales contract is a contract under which Alinta Sales agrees to sell to the customer gas at the supply address;
(b)in order to fulfil its contract of supply, Alinta Sales must have a functional point of delivery, which is the meter, which Alinta Sales must ensure is properly maintained;
(c)Alinta Sales retained a responsibility for the proper working order of the meter and that it was irrelevant that Networks (or any other person) may also carry out inspections, maintenance or reading of the meter as part of the network equipment;
(d)the plaintiffs in their statement of claim did not assert that Alinta Sales owned the equipment and the plea of the 'defendant's gas main line and copper riser connecting to the meter box' may be seen as a general way of describing the equipment through which the supply of gas is made.
His Honour also said (at [66], [71]):
The descriptor given to the defendant in the writ and statement of claim was in respect of an entity that carried on the business of selling and supplying gas and installing and maintaining gas connections to customers. That is done through the medium of a gas meter. I am satisfied on an analysis of the contract that Alinta Sales fits the descriptor of all the features that have been identified save for the installation of the gas connection and meter. There is no evidence before me as to the responsibilities of this aspect and it is reasonable to infer that it is something that would have been done by or been the responsibility of Alinta Networks.
...
Further, in my opinion, the fact that the plaintiffs may have contacted the defaults and emergency line which may have been operated by Alinta Networks does not weaken the position. It does not assist to identify the descriptor of the entity to be sued. The entity to be sued is that which supplies the gas and the means by which it is supplied. It is not affected by there being another entity which may receive complaints about faults in order to carry out repairs even though under the contract Alinta Sales reserved unto itself the right to carry out repairs.
It should be mentioned at this juncture, that if and insofar as his Honour found that, as between customers of Alinta Sales, and Alinta Sales, it was Networks, to the exclusion of Alinta Sales, which was responsible for the installation and maintenance of meter and gas connections, his Honour erred, having regard to cls 11 and 12(b) of Alinta Sales' standard form contract read with the definitions in cl 31 of 'we', 'meter', 'network equipment' and 'work'. The recognition of this error does not impugn his Honour's ultimate conclusion, but rather serves to buttress it.

The ground of appeal

The appellant's ground of appeal is in the following terms:
1The learned primary judge erred in fact, and, or, in law in finding in effect that there was no reasonable doubt that [Alinta Sales] was the defendant that the respondents intended to sue in that:
1.1The learned primary judge erred in fact in failing to find that the respondents intended to sue a defendant as operator of infrastructure and supplier of gas, deliberately identified and named as [Alinta 2000], and that was not a mistake merely about the name of the party that was without doubt the intended defendant;
1.2The learned primary judge erred in fact or law in finding at reasons for decision [65] that the reference in the statement of claim to 'the defendant's gas main line and copper riser connecting to the meter box' was 'not a positive assertion of ownership [but] can be seen as a general way of describing the equipment through which the supply of gas is made by the defendant' in that the plea was an allegation about operator or owner;
1.3The learned primary judge erred in fact and law in finding at reasons for decision [67] that there was no misunderstanding by the appellant about the nature of the plaintiffs' claim and description of the entity that would be liable in that the finding was not supported by evidence or findings of fact;
1.4The respondents' application was first made as an application to substitute Alinta Sales and [Networks] as two defendants in place of Alinta 2000 as one.

Order 21 rule 5 and the law

Order 21 r 5 of the Rules of the Supreme Court 1971 (WA) provides the power to amend a writ or pleading with leave even after the time limit set by the statute of limitations has expired. Order 21 r 5 relevantly provides:
5.Amending writ or pleading with leave
(1)Subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5); and
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.
(3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
(4) …
(5) An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
The wording of O 21 r 5 is based on the (now-repealed) English provision O 20 r 5: Carter v O'Connell [2009] WASC 245 [23]. See also Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [27].
In order to grant leave under O 21 r 5 to correct the name of the defendant, the court must, at least ordinarily, be satisfied that: (1) the mistake sought to be corrected was a genuine mistake; (2) the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; and (3) it is just to make the amendment: Carter v O'Connell [25]; Rodriguez v R J Parker (Male) [1967] 1 QB 116, 139; Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810, 821, 824;

Mistake includes an error made with fault: Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703, 721; The 'Sardinia Sulcis' v The 'Al Tawwab' [1991] 1 Lloyd's Rep 201, 206.
Evans v Charrington involved a mistake with respect to the named defendant. E was the tenant of land of which C was initially the landlord. During the term of the lease, the reversion was assigned to B which was a company in the same group as C. After the term of the original lease expired, E entered a supplemental lease with B. Sometime into the term of the new lease C, acting as agent for B, served a notice terminating the tenancy. E applied to the County Court for the grant of a new tenancy but erroneously gave the name of the landlord as C, as opposed to B. The action was initially struck out on the ground that C was not the landlord.
In the appeal to the Court of Appeal, the court, by majority, accepted that E intended to sue the relevant landlord, B, and that neither the named defendant (C) nor the intended defendant (B) could have been misled or have had any reasonable doubt as to the party that E had intended to sue. The court ordered, in effect, that the intended defendant be substituted for the named defendant. Donaldson LJ (Griffiths LJ agreeing) said (at 821):
In applying Ord 20, r 5 (3) it is, in my judgment, important to bear in mind that there is a real distinction between [on the one hand] suing A in the mistaken belief that A is the party who is responsible for the matters complained of and [on the other] seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances.
The observations of Donaldson LJ were cited with approval by Clarke J (as his Honour then was) in Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212. In Lloyd Steel, the plaintiff solicitor had carried out searches on a register and mistakenly believed that the party that they sued was the carrier. Sometime later, after the expiry of the relevant time bar, the plaintiff learnt that the vessels had been chartered by the defendants to other parties who were the relevant carriers of the goods described in the bills of lading. Clarke J found that there had been a mistake in the identity of the party insofar as the carrier, who was the intended recipient of the action, was wrongly named and that the mistake was not misleading ('presumably', his Honour said, to the named defendant) nor was it such as to cause reasonable doubt as to the identity of the party intended to be sued (217 ‑ 218). His Honour said (at 218) with reference to Evans v Charrington:
It may be that the actual decision does not bind me in view of textual differences in the rules but whether or not it does I am attracted to the majority decision and propose to apply it here. I would add that the later reference in the rule to identity supports the view that the rule is not limited to those cases where there is a mere misdescription of a particular entity but extends to cover cases where the party intended to be sued is wrongly identified.
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 was a case in which the analogous (though textually different) rule in the Victorian Supreme Court resulted in the dismissal of an application to amend the name of the defendant. The owner of damaged goods commenced proceedings against Bridge Shipping (Bridge) through which it had arranged carriage. Bridge had employed another company to arrange the carriage of the goods, but was unaware of the identity of the carrier. Bridge's solicitor undertook a search of the register which revealed that the owner of the vessel was Grand Shipping (Grand). Bridge issued a third party notice against Grand. After the expiration of the relevant limitation period, Grand delivered its defence to the third party claim in which it disclosed that Grand had chartered the vessel to a different company, Rainbow, which had been the carrier of the damaged goods. Bridge applied to amend its third party notice to substitute Rainbow (the carrier) for Grand (the owner). The application was refused by the master and an appeal to a judge and then the Full Court of the Supreme Court was dismissed. The High Court also dismissed the appeal.
In the High Court, McHugh J (Brennan and Deane JJ agreeing), rejected the argument that Bridge had impliedly intended to sue the carrier as it was inconsistent with the terms of the statement of claim, with the inferences to be drawn from that document, and with the affidavit evidence of Bridge's solicitor seeking to explain the mistake.
McHugh J discussed the meaning of the words 'a mistake in the name of the party' in the following way (260):
[A] plaintiff may make 'a mistake in the name of a party' not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake 'in the name of a party' because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake 'in the name of a party' because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person.
McHugh J held that rules permitting amendments of this kind are remedial in nature, and should be given the 'widest interpretation which its language will permit'. His Honour went on to say (260 ‑ 261):
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.
McHugh J cited (at 257) with apparent approval the passage from Evans v Charrington referred to earlier, and the judgment of Clarke J in Lloyd Steel. His Honour also said (261) that in his opinion, Evans v Charrington and Lloyd Steel were correctly decided. His Honour also cited (at 262) a passage from The 'Al Tawwab' (207) where Lloyd LJ expressed what has become known in England as the 'Sardinia Sulcis' test that an amendment to correct the name of the party would be permitted if:
it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise.
Whilst the provisions of the Victorian rule were different in terms to O 21 r 5, McHugh J's judgment nevertheless provides guidance to the approach to be taken to the construction and operation of O 21 r 5: Brandsma v Heindal [40] ‑ [41].
The second of the requirements referred to in [95] above involves two elements. One is that the mistake was not 'misleading', and the other is that it was not 'such as to cause any reasonable doubt' on the subject mentioned. A mistake may be of a nature which causes a reasonable doubt to exist as to the identity of the intended defendant, but is one which falls short of being positively misleading in that regard. It is not sufficient to establish that one of the two elements is satisfied, if the other is not satisfied: Honnery v McKenzie (Unreported, QCA, Appeal No 12 of 1997, 16 December 1997) 4 ‑ 5.
As noted earlier, in Lloyd Steel (218) Clarke J observed that the reference to the mistake being one which was 'not misleading' was 'presumably' a reference to it not being misleading to the named defendant who was the recipient of the statement of claim. His Honour's observations were part of a passage quoted with evident approval in Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507 [38]. Also, in Brown v Jammal [1995] NSWCA 62, Kirby P (as his Honour then was) said (Handley & Sheller JJA agreeing):
The next question is whether the mistake so identified was misleading or 'such as to cause reasonable doubt'. This must be judged by the response of a reasonable reader to receiving the document containing the 'mistake' (17).
Where process has been issued and served, and it emerges that there has been a mistake relating to the name of the defendant intended to be sued, I would respectfully agree that the inquiry as to whether the mistake was 'misleading', or 'such as to cause reasonable doubt' must be judged with reference to the recipient of the document.
The phrase 'such as to cause reasonable doubt' has been interpreted as signifying an objective test: ABB Asea Brown Boveri Ltd v Hiscox Dedicated Corporate Member Ltd (2007) EWHC 1150 [73]. The word 'misleading' is capable of signifying that which is subjectively misleading and, at other times, that which is objectively misleading, and its meaning is apt to be influenced by the context: R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545, 561. In this appeal the appellant contended that the asserted 'mistake' is to be judged from the perspective of an objective reader of the plaintiffs' claim. That is, in substance, how McHugh J approached the matter in Bridge. Further, the New South Wales Court of Appeal in Brown v Jammal, in the passage quoted above, evidently considered that the test was an objective one. The English equivalent was also considered by James J in Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703, 709, to be an objective test. His Lordship said:
The test is what would a reasonable person receiving this writ, accompanied as it was by the statement of claim, understand from it in regard to the person intended to be sued?
The decision of James J was upheld on appeal (the appeal decision bears the same citation) and his Lordship's observations were quoted with evident approval in Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701; [2008] 1 WLR 585 [34].
On the other hand, in Epacris Pty Ltd Director‑General, the New South Wales Court of Criminal Appeal reviewed a number of authorities in Australia and elsewhere which had considered the relevant application of the equivalent of O 21 r 5(3) and said [40]:
If we had been invited in 1965 ‑ when the progenitor of SCR Pt 20 r 4(3) was first introduced in England ‑ to determine whether the inquiry should be directed to the objective nature or quality of the mistake itself or to the subjective reaction to that mistake by the other party, we would have said that the wording of the rule indicates that correct test is the objective one. But more than forty years since 1965 of judges treating the rule as if it permitted the subjective test to be applied, even though never expressly deciding the issue, leads us to conclude that it is too late now to insist that our view is the correct one. We are therefore not satisfied that the judge erred in the present case by making a subjective assessment as to whether the defendant had in fact been misled or had in fact had a reasonable doubt as to the identity of the prosecutor.
It appears from the reported decision in Epacris Pty Ltd Director‑General that Brown v Jammal was not cited to the court.
In its context in O 21 r 5(3) the meaning of the word 'misleading' is informed by its connection with the phrase 'or such as to cause any reasonable doubt'. Although the disjunctive is used between the two, read as a whole they seem to me to connote an inquiry as to how a reasonable person receiving the document would interpret its intention in light of the circumstances in which that person received it. Accordingly, in my opinion the better view is that the word 'misleading' in O 21 r 5(3) does not, read in its context, signify a subjective test.
However if that were not the correct view, if and insofar as the subjective reaction of the recipient of the claim may be taken into account, I would respectfully adopt the following observations in Epacris Pty Ltd Director‑General at [41]:
The objective nature or quality of the mistake made nevertheless remains the primary factor to be considered. That is clear from all of the decisions to which reference has been made. It should also be emphasised that, where the objective nature or quality of the mistake is not such that a reasonable person receiving the document would be misled or have a reasonable doubt as to the identity of the person intended to be made a party, that will ordinarily be the end of the matter. The subjective reaction of the particular recipient to the mistake in such a case (for example, by reason of an unfamiliarity with the English language) cannot prevail so that the amendment sought must be refused. The reaction to the mistake by the respondent to the application to amend plays a very minor role indeed ‑ and ordinarily only in favour of the applicant for amendment. (emphasis in original)
Any questions of prejudice to the intended defendant are to be considered within the context of the overall exercise of the discretion: Brown v Jammal (17 ‑19).

Disposition

In my view it is apparent that the plaintiffs intended to sue Alinta Sales, and that the mistake in naming Alinta 2000 as the defendant was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. My reasons for reaching this conclusion are as follows.
First, the statement of claim directed attention to the entity which carried on the business of 'selling and supplying' gas. That was Alinta Sales: cls 1 and 2 of the standard form contract. It also directed attention to the entity which installed and maintained gas 'connections' to 'its customers'. That was Alinta Sales: cls 11 and 12(b), read with the definitions in cl 31 of 'we', 'meter', 'network equipment' and 'work'.
Paragraph 4 of the statement of claim directed attention to the entity of which the first plaintiff was allegedly a 'customer' in respect of the supply of gas. That must be a reference to Alinta Sales, as there is no suggestion that the first plaintiff was a 'customer' of Networks or Alinta 2000 for the supply of gas to the property.
Paragraph 5 pleads an express or implied contract with the first plaintiff. To that extent, read in the context of pars 3 and 4, it must be taken to be a reference to the entity which supplies and sells gas. Insofar as it pleads a duty of care to both plaintiffs, it must be taken to arise from the matters pleaded in pars 3 and 4 which, as noted above, address the position of the entity which supplies and sells gas (Alinta Sales). The references in par 5.1 to the installation and maintenance of safe plant and equipment for the provision of 'gas supply' at the property are consistent with the characterisation of the defendant being the entity supplying and selling gas to its 'customers': cl 11 and 12(b) of the standard form contract, read with the definitions in cl 31.
The pleaded obligations in pars 5.2 and 5.3 are consistent with an implied obligation arguably arising from cls 9, 12 and 18.4, and the penultimate subparagraph of cl 29, of the standard form contract. They are plainly not inconsistent with the intended defendant being the entity which supplied and sold gas to the first plaintiff. In the context of the pleading as a whole, they do not indicate that the plaintiffs' mistake in naming Alinta 2000 was misleading or would cause any reasonable doubt as to the entity intended to be sued. The same may be said about the telephone communications pleaded in pars 6.1 and 6.2.
The plea of the gas leak in par 6.3, at a 'junction' between a supply line and a 'copper riser connecting to the meter box', is consistent with the claim against the entity of which the first plaintiff is a customer: cls 11 and 12(b) of the standard form contract, read with the definitions in cl 31. The plea is not directed to the network system generally, but specifically to the line leading to the copper riser connected to the meter box. The reference to the line being the 'Defendant's' is, in its context, referring to that part of the line for which the entity supplying and selling gas to the customer is alleged to be responsible. On the pleading, the ownership or operation of the line were not criteria of liability.
The plaintiffs pleaded that their injuries were sustained as a result of the 'breach of contract to supply gas with safety and/or ... breach of duty of care' (par 11 of the statement of claim). The only contract pleaded was that in respect of which the first plaintiff was a 'customer', in relation to the supply of gas to the property. There can be no doubt about the intended effect of this plea. It relates to the entity which supplies and sells gas to the customer. The particulars of breach take on a subsidiary relevance, but in any event do not displace the intended effect of the breach plea.
The first particular of breach (par 11.1) concerns a failure to maintain the plant and equipment 'for the provision of gas supply at the property'. It confirms that the intention is to sue the entity responsible for gas supply at the property. The second and third particulars (pars 11.2 and 11.3) are consistent with implied obligations arguably arising from cls 9, 12, 18.4 and the penultimate subparagraph of cl 29 of the standard form of contract. There is nothing in them to displace the evident intention to be discerned from the pleading as a whole, which is that the intended recipient of the action was the entity which supplied and sold gas to the first plaintiff at the property.
Having regard to the above matters, in my view there was no error of fact as alleged in ground 1.1 of the appeal. The intended recipient of the action was not an entity which was both the owner and operator of network infrastructure as well as the supplier and seller of gas. The intended recipient of the claim was the supplier and seller of gas which installed and maintained gas connections for its customers in Western Australia, and, in respect of whom the first plaintiff was a 'customer' for the supply of gas connected through a gas meter at the property.
In relation to ground 1.2, in my view, properly understood, the reference to the 'defendant's' gas line and copper riser connecting to the meter box was a reference to the equipment for which the entity supplying gas to the customer was allegedly responsible. Although the primary judge did not characterise the plea in that way, he was nevertheless correct to find that it was not a positive assertion of ownership. Nor were ownership or operation criteria by which the liability of the intended recipient of the action was to be judged.
As to 1.3 of the grounds of appeal, as noted above Alinta 2000 submitted that it is relevant to judge the asserted 'mistake' from the perspective of an objective reader of the plaintiffs' claim. Alinta 2000 was the holding company of Alinta Sales. There could have been no doubt in the mind of a reasonable person in its position that it was not the person intended to be sued, and that Alinta Sales was.

In relation to ground 1.4, the initial application, by which the plaintiffs sought to substitute both Alinta Sales and Networks, suggests that the plaintiffs' solicitors, who had not been the solicitors who had prepared and filed the writ and statement of claim, had considered that the plaintiffs had intended to sue both the supplier and seller of gas, as well as the owner and operator of the distribution network. To that extent, their conduct might arguably be said to constitute an admission against the plaintiffs' interest. However, as I have noted, they were not the solicitors who prepared the writ and statement of claim, and any view they had formed to that effect was misconceived. Further, the error was not persisted in, when the application was amended to confine it to substituting Alinta Sales for Alinta 2000.
Finally, I would add that neither party contended that Alinta Sales ought to have been heard on the plaintiffs' application. Perhaps this was because, in the particular circumstances of this case, in substance any resistance by Alinta Sales would effectively be addressed through Alinta 2000 as its holding company. Although the point was not argued, it would seem to me that it would, at least, ordinarily be appropriate for an applicant in these circumstances to give notice of the application to the alleged intended defendant as well as the named defendant. There is no suggestion that Alinta 2000 did not bring the writ and statement of claim to the attention of Alinta Sales and it is to be inferred, from the significance of the explosion in question, the involvement of loss adjusters and insurers, and the fact that Alinta Sales has at all material times been the subsidiary of Alinta 2000, that Alinta Sales knew of the proceedings below and of the pleadings filed in the proceedings.
For these reasons the application for leave to appeal should be dismissed and the appeal should be dismissed.

Details

AGLC: Alinta 2000 Ltd v Petkov [2012] WASCA 258
Case: [2012] WASCA 258
Decision Date: 14 DECEMBER 2012

CaseChat Overview and Summary

In the matter of Alinta 2000 Ltd v Petkov, the parties were engaged in a legal dispute that was heard by the Supreme Court of Western Australia. The case centred on a mistaken identity in the naming of a party in the proceedings, which was only discovered after the limitation period had expired. The plaintiff sought to amend the writ to correct the mistake, invoking the provisions of the Rules of the Supreme Court 1971 (WA) Order 21 Rule 5(3), which permits amendment to correct non-misleading mistakes in the name of a party.

The central legal issue the court had to address was whether the mistake in the party's name was not misleading and did not cause any reasonable doubt about the identity of the intended party. The court needed to determine whether the mistake was objectively misleading or caused reasonable doubt, rather than whether specific individuals were misled or had doubts. The ruling referenced several precedents, including Lockheed Martin Corporation v Willis Group Ltd, ABB Asea Brown Boveri Ltd v Hiscox Dedicated Corporate Member Ltd, and Brown v Jammal, which all emphasised the need for an objective assessment of the criteria.

The court concluded that the test for whether a mistake is non-misleading and does not cause reasonable doubt should be applied objectively, considering whether a reasonable person in the position of the reader would be misled or have doubts about the identity of the intended party. The decision referenced Evans Constructions Co Ltd v Charrington & Co Ltd, which supported the view that the identity of the intended party should be clear to those familiar with the circumstances of the case. Based on this reasoning, the court determined that the mistake in this case did not meet the criteria for amendment under Rule 5(3), as it could have led to reasonable doubt about the identity of the party intended to be sued.

The final order of the court was that the application to amend the writ to correct the mistake in the name of the party was refused, as the mistake was considered misleading and likely to cause reasonable doubt about the identity of the intended party.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In my opinion, the issue of whether the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued, in the context of O 21 r 5(3), is to be determined by the court on an objective basis. That is, the court is to determine whether it is satisfied that a reasonable person, upon reading the relevant document containing the mistake and with knowledge of the relevant legal and factual context, would not have been misled or had any reasonable doubt as to the identity of the person who the plaintiff intended to sue. The issue is not to be judged on a subjective basis. That is, the court is not to determine whether it is satisfied that a particular person or persons were not actually misled or did not actually have any reasonable doubt as to the identity of the person who the plaintiff intended to sue. See Lockheed Martin Corporation v Willis Group Ltd[2010] EWCA Civ 927 [45] (Rix LJ, Waller & Wilson LJJ agreeing). See also ABB Asea Brown Boveri Ltd v Hiscox Dedicated Corporate Member Ltd [2007] EWHC 1150 (Comm) [73] (Clarke J); Brown v Jammal (17); Mitchell (709) (James J). The relevant part of O 21 r 5(3), namely 'the Court is satisfied that the mistake … was not misleading or such as to cause any reasonable doubt as to the identity of the party … intended to be sued', indicates that the requisite determination is to be made on an objective basis. In particular, this is apparent from:(a)the reference to 'reasonable' doubt;(b)the textual proximity of the 'misleading' criterion and the 'cause any reasonable doubt' criterion; and(c)the absence of any reference to any person or persons (for example, the defendant who was erroneously joined or the person who the plaintiff intended to sue) having been or not having been actually misled or having had or not having had any actual reasonable doubt. The application of an objective test to both criteria means that there will ordinarily be substantial, if not complete, overlap in determining whether, in a particular case, each criterion is satisfied. However, as I have mentioned, each criterion is separate and distinct. It is therefore necessary for each of them to be addressed. In Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810, Charrington had granted the plaintiff a lease. The plaintiff wished to renew the lease. It commenced proceedings for that purpose and named Charrington as the defendant. However, Charrington had assigned the reversion of the lease to Bass, a company in the same group, for which Charrington acted as managing agent. The plaintiff made application to substitute Bass for Charrington under O 20 r 5 of the English Rules. Donaldson LJ (Griffiths LJ agreeing) said:The applicant for leave to amend has to satisfy the court that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. On the facts of the present case, I do not see how Charringtons or Bass or anyone else familiar with the surrounding circumstances, could have been misled or could have had any real doubt as to the identity of the person intended to be sued (822).

Actions

Citations

Alinta 2000 Ltd v Petkov [2012] WASCA 258

Most Recent Citation

Impiombato v BHP Group Limited (No 5) [2024] FCA 591

Cases Citing This Decision

Impiombato v BHP Group Limited (No 5) [2024] FCA 591
Citation 1

…dure) Rules (Vic) Supreme Court Rules 1970 (NSW) Pt 20 R 4 Supreme Court Rules 1986 (Vic) r 36.01 Cases cited: Alinta 2000 Pty Ltd v Petkov [2012] WASCA 258 Andrianakis v Uber Technologies (Ruling No 2) [2020] VSC 152 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Ashby…
Latchman v Maybo Limited [2023] WADC 17
Citation 2 (Para 1)

…nected with the original defendant and unaware of the plaintiff's claim after any relevant period of limitation has expired: Alinta 2000 Ltd v Petkov [2012] WASCA 258.…
Pastor v Aegis Aged Care Management Pty Ltd [No 2] [2022] WADC 2
Citation 3 (Para 6)

…parallels between this case and the factual circumstances before the Court of Appeal in Alinta 2000 Ltd v Petkov .[11] [11] Alinta 2000 Ltd v Petkov [2012] WASCA 258 ( Alinta 2000 ).…
Smith v High Energy Service Pty Ltd [2020] WADC 119
Citation 4 (Para 2)

…entity responsible for the sale and supply of gas was Alinta Sales, which was a wholly owned subsidiary of Alinta 2000. [6] Alinta 2000 Ltd v Petkov [2012] WASCA 258.…
Bauer v Aussie Wanderer Tours Pty Ltd [2020] WADC 91
Citation 5 (Para 9)

…tiff then successfully applied for leave to file further evidence and this application was further heard on 26 May 2020. [4] Alinta 2000 Ltd v Petkov [2012] WASCA 258 [58].…
Goodacre v Department of Child Protection [2018] WADC 83
Citation 6

…Alinta 2000 Ltd v Petkov [2012] WASCA 258 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 Donohue v Stevenson [1932] AC 562 Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 Kimberley Downs v Western Australia (Unreported, WASC, Library No 6114, 25 August 1986) Neil v Nott [1994] HCA 23 Nor…
O'Rourke v Bonney Downs Pastoral Company Pty Ltd [2016] WADC 104
Citation 7

…Alinta 2000 Ltd v Petkov [2012] WASCA 258 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45…
Galloway v Minister for Health [No 2] [2015] WADC 119
Citation 8

…Alinta 2000 Ltd v Petkov [2012] WASCA 258 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 Ryan v Coffs Harbour City Council (2014) NSWLEC 159…
Caruso v Patchett and Insurance Australia Ltd [2015] ACTMC 10
Citation 9

…Alinta 2000 Ltd v Petkov [2012] WASCA 258 Al Tawwab [1991] 1 Lloyd’s Rep 201 Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Davies v Elsby Brothers Ltd [1961] 1 WLR 170 Mass (Australia) Pty Limited (CAN 108 657 012)…
Praetz v Sodexo Australia Pty Ltd [2023] WADC 48
Citation 10 (Para 1)

…mental and overriding consideration for a court is whether it is in the interests of justice to grant leave to amend.[12] [8] Alinta 2000 Ltd v Petko [2012] WASCA 258 ( Petkov ). [9] Petkov [17] (Buss JA), citing Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 [10] Prior to the Rule Amendment,…
Onsite Rental Group Operations Pty Ltd v Browne [2014] WADC 73
Citation 11

…Alinta 2000 Ltd v Petkov [2012] WASCA 258 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549 Hickory Developments Pty Ltd v Brunswick Retail Investment Pty Ltd [2012] VSC 224 La Rosa v Nudrill Pty Ltd [2013] WASCA 18 Rinaldi & Parroni Pty Ltd v Precision Holdings Pty Ltd…
Pastor v Aegis Aged Care Staff Pty Ltd [No 4] [2024] WASCA 24
Citation 12 (Para 4)

…der would have known that that entity was Alinta Sales Pty Ltd. Any argument to the contrary was always doomed to fail. [14] Alinta 2000 Ltd v Petkov [2012] WASCA 258. [15] Alinta 2000 [8].…
Pastor v Aegis Aged Care Staff Pty Ltd [2023] WASCA 13
Citation 13 (Para 4)

…onnection with an earlier worker's compensation claim.[12] Accordingly, Aegis Staff was substituted as first defendant. [11] Alinta 2000 Ltd v Petkov [2012] WASCA 258. [12] Principal Registrar Melville's decision [50].…
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139
Citation 14 (Para 8)

…since that decision does not materially alter the principles to be applied or require a different outcome in this case. [10] Alinta 2000 Ltd v Petkov [2012] WASCA 258 [58], [128].…
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367
Citation 15 (Para 8)

…should not be followed. [39] Plaintiff's Submissions [13]. [40] Brandsma & Crockett v Heindal Pty Ltd [2002] WASCA 96. [41] Alinta 2000 Ltd v Petkov [2012] WASCA 258.…

Cases Cited

Statutory Material Cited

Petkov v Alinta 2000 Limited [2012] WADC 40
Citation 1 (Para 2)

…effect, that in an application of this kind, leave would be granted if the plaintiffs satisfied the court of three matters ( Petkov v Alinta 2000 Ltd [2012] WADC 40 [26]): (1)that the mistake sought to be corrected was a genuine mistake; (2)that the mistake was not misleading or such as to cause any reasonable do…
East West Airlines Limited v Turner [2010] NSWCA 53
Citation 2 (Para 14)

…elsewhere in Australia and in England, and the decisions in Davies v Elsby Bros Ltd [1961] 1 WLR 170, Mitchell , Rodriguez , Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 and Brandsma & Crockett , their Honours said: If we had been invited in 1965 [sic] ‑ when the progenitor of the Supreme Court Rules , Pt 20…
Carter v O'Connell [2009] WASC 245
Citation 3 (Para 2)

…The wording of O 21 r 5 is based on the (now-repealed) English provision O 20 r 5: Carter v O'Connell [2009] WASC 245 [23]. See also Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [27].…
Epacris Pty Ltd v Director-General Department of Natural Resources (@179-07) [2007] HCATrans 400
Citation 4 (Para 15)

…to appeal against the decision of the Court of Criminal Appeal in Epacris . See Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] HCATrans 400.…
Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76
Citation 5 (Para 10)

…In Epacris Pty Ltd v Director‑General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507, the Court of Criminal Appeal of New South Wales heard an application for leave to appeal from the decision of a judge in the Land and Environment Court refusing an application by a prosecutor to amend a sum…
Silverstone Holdings Pty Ltd v American Home Assurance Co [2003] WASC 139
Citation 6 (Para 2)

…261 (McHugh J, Brennan & Deane JJ agreeing); Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v American Home Assurance Co (1997) 18 WAR 516, 537 (Parker J, Kennedy J agreeing).…
Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96
Citation 7 (Para 4)

…As McLure J noted in Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323, the majority in Bridge Shipping (Brennan, Deane, Toohey & McHugh JJ) rejected a submission that 'the court's power to correct a mistake in the name of a party was confined to cases of misnomer, misdescription, ty…
Brown v Jammal [1995] NSWCA 62
Citation 8 (Para 2)

…nded to sue. See Adelson v Associated Newspapers Ltd [2008] 1 WLR 585 [32] (Lord Phillips of Worth Matravers CJ, Jacob and Moses LJJ); Brown v Jammal [1995] NSWCA 62, 12 ‑ 14 (Kirby P, Handley & Sheller JJA agreeing).…
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45
Citation 9 (Para 2)

…Indeed, it is proper to give the provision the widest interpretation which its language will permit. See Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, 260 – 261 (McHugh J, Brennan & Deane JJ agreeing); Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v Am…
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34
Citation 10 (Para 14)

…isleading, and its meaning is apt to be influenced by the context: R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545, 561. In this appeal the appellant contended that the asserted 'mistake' is to be judged from the perspective of an objective rea…

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