JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALINTA 2000 LTD -v- PETKOV [2012] WASCA 258
CORAM: MARTIN CJ
BUSS JA
MURPHY JA
HEARD: 23 OCTOBER 2012
DELIVERED : 14 DECEMBER 2012
FILE NO/S: CACV 25 of 2012
BETWEEN: ALINTA 2000 LTD
Appellant
AND
PETER PETKOV
First RespondentLEITA MAE PETKOV
Second Respondent
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…
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- AGLC
- Alinta 2000 Ltd v Petkov [2012] WASCA 258
- Case
- [2012] WASCA 258
- Decision Date
CaseChat Overview and Summary
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).