Bee v ACN 116 198 460 Pty Ltd - [2016] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BEE -v- ACN 116 198 460 PTY LTD [2016] WADC 152

CORAM: WAGER DCJ

HEARD: 7 OCTOBER 2016

DELIVERED : 26 OCTOBER 2016

FILE NO/S: CIVO 163 of 2015

BETWEEN: KATRINA BEE
Plaintiff
AND
ACN 116 198 460 PTY LTD
Defendant

Catchwords:

Personal injury - Limitation period - Extension sought - Reasonable enquiry to establish identity - Section 39(3) of the Limitation Act 2005 (WA)

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr D Bruns
Defendant: Mr G Pynt

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Mills Oakley

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Cressey v E Timm & Son Ltd [2005] 1 WLR 3926
Ghiassi v Industrial People Pty Ltd [2012] WADC 23
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10

WAGER DCJ: The plaintiff applies for an extension of time to commence her action 2693 of 2015 for personal injury pursuant to s 39(3) of the Limitation Act 2005 (the Act) or alternatively for leave to continue with action 935 of 2015. Both applications are opposed by the defendant ACN 116 198 460 Pty Ltd.
In her indorsement of claim for action 935 of 2015 against Great Southern Group Training Incorporated as first defendant and the business known as Advance Traffic Management (WA) Pty Ltd as the second defendant, the plaintiff claimed damages for personal injury sustained on 30 May 2012. That action was commenced on 18 March 2015 being within the 3 year limitation period for personal injury actions: s 14(1) of the Act. However, on 12 June 2015 Advance Traffic Management (WA) Pty Ltd advised the plaintiff's solicitors that they were not the company that should have been named as the second defendant. On 24 July 2015 after further inquiries the plaintiff commenced action 2693 of 2015 against the defendant ACN 116 198 460 Pty Ltd being 25 days after the period of 3 years had elapsed.
The originating summons for these applications was filed approximately five months after the expiration of the limitation period.
The plaintiff's indorsement of claim for both actions sets out that she was employed by Great Southern Group Training Incorporated where she was working under the direction and instruction of the defendant and the defendant required her to lift signage equipment, signage legs and sandbags off a truck onto the ground and whilst doing so she sustained injury, which accident was caused by the negligence of the defendant.
Given that it is an action for personal injury, s 39(3) of the Act applies in respect of an extension of time. Relevantly s 39(3) states:
On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues –
…
(b)was aware of the physical case of the … injury but was not aware that the … injury attributable to the conduct of a person;
(c)was aware of the physical cause of the … injury and that the … injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
In considering the application I must also have regard to s 44 of the Act:
44. Further matters for court's consideration on extension applications
When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to —
(a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).
The plaintiff also argues that s 39(3)(b) and s 39(4) of the Act need to be considered.
Section 39(3) requires the court to be satisfied that when the limitation period expired a person to whom the cause of action accrues was aware of the physical cause of the injury but was not aware that the injury was attributable to the conduct of a person.
Section 39(4) relates to s 39(3)(b):
39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
…
(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware —
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
The plaintiff argues that s 39(3)(b) and s 39(4) of the Act apply because this case is analogous to Ghiassi v Industrial People Pty Ltd [2012] WADC 23 in which O'Neal DCJ considered that s 39(3)(b) of the Act applied. In that case the plaintiff was unloading a truck onto a pallet on the tines of a forklift driven by Mr Stafford. The plaintiff mistakenly believed Mr Stafford was an employee of the depot where the injury occurred and for that reason he did not make any inquiries about the true identity of Mr Stafford's employer. The claim against the defendant company in that case however was not one alleging personal liability, rather vicarious liability. It could not be said that the injury the plaintiff sustained was attributable to the conduct of the defendant named in error. It was attributable to Mr Stafford and/or to his employer.
The facts in the present case are totally different. The plaintiff knew that the physical injury was caused by the host company that had contracted with Great Southern Group Incorporated. Whether that company was named Advance Traffic Management (WA) Pty Ltd, Albany Traffic Control or ACN 116 198 460 Pty Ltd, the injury was attributable to that person.
Accordingly, I do not accept that s 39(3)(b) and s 39(3)(4) of the Act apply. I need to consider s 39(3)(c) of the Act and, if a point is reached where further consideration is appropriate, s 44 of the Act.
The history of the plaintiff's claim is that the plaintiff sustained the injury on 30 May 2012.
She gave initial instructions to her solicitors on 2 January 2013 following her election in respect of a worker's compensation application advising that she had worked for ATC Worksmart at the relevant time. It is not in dispute that the business ATC Worksmart was operated by Great Southern Group Training Incorporated.
On 24 October 2014 following inquiries by the plaintiff's solicitors, solicitors for Great Southern Group Training Incorporated advised that the plaintiff's solicitors should be looking at proceeding against Albany Traffic Services as a potential second defendant. The plaintiff's solicitors duly conducted searches and located a Pty Ltd company called Advance Traffic Management (WA) Pty Ltd that were the owners of the business name Albany Traffic Control at the time the search was conducted on 29 October 2014. The search indicated that the business name Albany Traffic Control had been registered by Advance Traffic Management (WA) Pty Ltd in 2013.
On 29 October 2014 the plaintiff's solicitors advised the plaintiff that they would be suing the owners of Albany Traffic Control since they were the ones supervising her at the time of her injury.
On 16 February 2015 solicitors for Great Southern Group Incorporated wrote to the plaintiff's solicitors asking whether the plaintiff intended to join the host employer, Albany Traffic Control Pty Ltd in any District Court proceedings. The plaintiff commenced District Court action 935 of 2015 on 18 March 2015 against Great Southern Group Incorporated as first defendant and Advance Traffic Management (WA) Pty Ltd as second defendant.
The plaintiff's solicitors were then contacted by Advance Traffic Management (WA) Pty Ltd on 12 June 2015 and were advised that the plaintiff had proceeded against the wrong company. The limitation period had expired 13 days prior to this contact.
The plaintiff's solicitors then requested a copy of the agreement between Great Southern Group Training Incorporated and the host employer from the time of the plaintiff's injury in order to ascertain the correct name of the second defendant. That agreement showed the contracting party was ACN 116 198 460 Pty Ltd.
The plaintiff's solicitors then advised the plaintiff of the identity of the correct second defendant and new proceedings 2693 of 2015 were commenced against ACN 116 198 460 Pty Ltd. At that time there was no application for leave to amend the original proceedings.
On 7 August 2015 Great Southern Group Training Incorporated also issued proceedings against ACN 116 198 460 Pty Ltd. Given that a different limitation period applies to Great Southern Group Training Incorporated, those proceedings were within time and are still on foot.
The history of the identity of the defendant is that on 23 December 2003 Advance Traffic Management (WA) Pty Ltd was registered with ASIC. On 12 September 2005 ACN 116 198 460 Pty Ltd was registered. ACN 116 198 460 Pty Ltd commenced trading as Albany Traffic Control on 30 December 2005.
On 7 December 2005 Great Southern Group Training Incorporated trading as ATC Worksmart entered into a labour contract agreement with ACN 116 198 460 Pty Ltd.
In February 2006 ACN 116 198 460 Pty Ltd changed its name to Albany Traffic Control Pty Ltd.
In May and June 2013 ACN 116 198 460 Pty Ltd sold the Albany Traffic Control business name to Advance Traffic Management (WA) Pty Ltd and ceased trading as Albany Traffic Control. ACN 116 198 460 Pty Ltd then changed its name back to ACN 116 198 460 Pty Ltd.
Advance Traffic Management (WA) Pty Ltd commenced trading as Albany Traffic Control on 17 September 2013. On 22 March 2016 ACN 116 198 460 Pty Ltd was deregistered.
By affidavit dated 15 April 2016 the plaintiff says that when initially asked by her solicitor whether there was any third party for which she was working at the time of the accident she advised she believed she was working under instruction from Western Power or Main Roads because she believed it was men from these organisations who were telling her what jobs to do. On different days she would be working with Western Power or Main Roads.
The plaintiff instructed her solicitor to commence legal proceedings around 29 October 2014. She was advised by the solicitor that he was experiencing some difficulty in identifying who was actually employing her but he told her he believed that she would be suing the owners of Albany Traffic Control because they were the ones supervising her at the time of the injury.
The plaintiff became aware that her solicitors had sued the wrong second defendant on 7 July 2015 when she was advised that the defendant's correct name was ACN 116 198 460 Pty Ltd.
By affidavit dated 29 February 2016 the manager of Albany Traffic Control at the time of the injury stated that the plaintiff used to come to the Albany Traffic Control office depot for work each morning. There was a sign which was 6 foot by 4 foot that said Albany Traffic Control in yellow, a sign on the outside of the building that was 20 foot by 3 foot that said Albany Traffic Control in yellow, the vehicles used by Albany Traffic Control to carry out work had signs on both the driver's and passenger's side doors that said Albany Traffic Control and all equipment had black ink stencilled onto it so that it was marked with the letters ATC and the manager's mobile telephone number. The workers were required to wear orange high visibility polo shirts with the name Albany Traffic Control on the front pocket.
The plaintiff says she recalls vehicles having Albany Traffic Control signage on them and that there was a sign at the depot/office, however she says there were many other signs that she saw in the course of her work. She did not identify Albany Traffic Control as the host employer.
In a supplementary affidavit dated 16 May 2016 Ms J Crawford, solicitor for the defendant's insurers, provided documentary information in relation to Albany Traffic Control. Documents with handwriting that are unsigned and undated are annexed. They are not relevant to this application, however a booklet entitled 'An Induction into Albany Control and Goldfields Esperance Traffic Management' that is signed by the plaintiff dated 22 October 2009 is also annexed: JC4. The induction booklet contains a confirmation that has been completed, and signed by the plaintiff. It is dated 22 October 2009. The plaintiff asserts that she has no knowledge of the induction document.
I accept that on 29 October 2014 the plaintiff was aware that the business name of the host employer was Albany Traffic Control because her solicitor referred to that name. The name Albany Traffic Control was brought to the plaintiff's solicitor's attention again as a suggested second defendant on 16 February 2015 as a result of the letter from Great Southern Group Incorporated solicitors to the plaintiff's solicitors.
Both the plaintiff and the plaintiff's solicitors were aware of the name, Albany Traffic Control, being the host employer business and a business for the entity that the plaintiff intended to sue prior to 30 May 2015. Neither the plaintiff nor the plaintiff's solicitors knew the correct company name of ACN 116 198 460 Pty Ltd until after 30 May 2015.

The issues

In order to extend the time in which the action can be commenced under the Act, the plaintiff must satisfy me that as at 30 May 2015 the plaintiff after reasonable inquiry had been unable to establish the defendant's identity.
I need to consider what 'to establish that person's identity' means.
I also need to consider the following questions:
1.What is a reasonable inquiry in the context of the plaintiff?
2.Is the knowledge of the plaintiff's solicitors imputed as being the knowledge of the plaintiff herself given that she is the person to whom the cause of action accrues?

What does 'to establish the person's identity' mean?

Counsel for the plaintiff argues that identity should be construed very narrowly. In the new Shorter Oxford English Dictionary the definition of identity includes:
2.the condition or fact of a person or thing being that specified unique person or thing, esp. as a continuous unchanging property throughout existence; the characteristics determining this; individuality, personality.
Although it was open to the plaintiff to have commenced proceedings against the business Albany Traffic Control pursuant to O 71 of the Rules of the Supreme Court 1971 counsel for the plaintiff argues that to proceed in that manner would be dangerous and ill‑advised. The identity of the person on whom documents needed to be served would be unclear and it would not be good practice. The business name Albany Traffic Control is not the defendant's identity. The identity is ACN 116 198 460 Pty Ltd.
Counsel for the defendant argues that s 39(3)(c) of the Act does not apply if the identity, that is, the person responsible, is known. If the details of the person responsible were not known then a routine search should have been conducted. It is an abuse to extend the limitation period until such time as the routine search is made. Counsel for the defendant refers to decisions in which the identity is said to be known because the person responsible can be identified. In the decision of Cressey v E Timm & Son Ltd [2005] 1 WLR 3926 this issue was considered by the Supreme Court of Judicature Court of Appeal (Civil Division). It was argued by the claimant/respondent in that case that 'identity was not synonymous with name' and that if the party had made a genuine mistake as to the name, the party could obtain leave from the court under CPR 17.4(3) or CPR 19.5 (a similar provision to our O 21 Supreme Court Rules 1971) to amend the name after the expiry of the limitation period. The claimant/respondent argued [22]:
… Section 14(1)(c) on the other hand was designed to deal with a different kind of case altogether, such as a hit and run accident, or an industrial disease whose origin cannot be pinned to a particular employer, but not a straightforward case such as the present'.
Rix LJ in that case considered identity to be a difficult concept because a person's identity can be established in different ways. In one sense a person can be identified by being seen or pointed out; in another sense a person can be identified by description, which can be more or less general or specified; and in a third sense a person can be identified by name. In the context of the United Kingdom legislation Rix LJ said [35], [36]:
35.The context of the Limitation Act 1980 is that of litigation. The identity of the defendant is obviously one of a number of critical facts for the purpose of the running of time against a would‑be claimant. Section 14(3) shows that constructive as well as actual knowledge is relevant where a claimant might reasonably be expected to acquire actual knowledge from facts observable or ascertainable by him, and that would include solicitors retained by him: Henderson. In these circumstances, the identity of a defendant appears to look to something specific enough to enable a person to be identified for the purpose of a claim form, and that is ultimately looking for a name. One cannot sue 'the driver of the other car', or even 'my employer': a name has to be provided. Moreover, artificial persons, such as companies, can hardly even be described, save by their name.
36.But how does this work in concrete situations? Suppose I slip in my local supermarket and wish to sue the owner or occupier. The well‑known name of a supermarket chain is over the door. But which is the company defendant responsible? Is it the corporate plc? If it is, there is no problem and the date of knowledge so far as the identity of the defendant is concerned is the date of the accident. But what if the local supermarket is owned and occupied by a regional company, or a property division company, within the corporate structure? Is that known or ascertainable as of the date of the accident? It may well be that where there has been no breach of duty, as in Simpson, nor any misinformation, but only some element of incompleteness, which I can reasonably be expected to deal with by inquiry, the answer to that question is, yes. But even if not, in my view time could only be extended for the shortest period possible for objectively reasonable enquiries to be made. In the absence of a positively misleading response, therefore, it would remain wise for a claimant to work on the basis that the three years had already begun to run with the date of the accident.
37.In most straightforward situations I think that there will be no difficulty in concluding that the identity of a defendant will be known to or ascertainable by a victim at the time of the accident. In some situations, however, it may be that an identity is only known or knowable in a more general way and that it will not be possible to say that the identity is properly known, even with the assistance of constructive knowledge, until a name has been or could have been attached.
In this case there has not been a positively misleading response. The case is straightforward. The name of the business was known by both the plaintiff and the plaintiff's solicitors prior to the expiration of the limitation period. The definition of identity must be considered in context. The identity of the business name Albany Traffic Control was known by the plaintiff prior to the expiration of the limitation period. Advance Traffic Management (WA) Pty Ltd was a genuine mistake as to the name of the relevant company.

What is a reasonable inquiry for this plaintiff?

The plaintiff's WorkCover election in relation to the injury was registered on or about 24 May 2014 and the plaintiff instructed her solicitors to commence legal proceedings on or around 29 October 2014. The plaintiff was advised that she would be suing her employer and also the owners of Albany Traffic Control since they were the ones supervising her at the time of her injury. Although the plaintiff does not recall all of the details about Albany Traffic Control from 2012, she does recall that there was a sign at the depot or office that said Albany Traffic Control and that the cars had writing on them and she believed that that said Albany Traffic Control. She saw many other signs during the course of her work. Given the advice she received from her solicitors on or around 29 October 2014 together with her recollection of signage from 2012, I accept that the plaintiff who did not have any legal training had made a reasonable inquiry to ascertain the identity. She was not aware of the legal name of the owners of Albany Traffic Control until 7 July 2015. There is no reason why the plaintiff, being aware of the name of the business of Albany Traffic Control, would have carried out her own company searches in respect of the name when she had instructed solicitors to act on her behalf.

Is the knowledge of the plaintiff's solicitors imputed as being knowledge of the plaintiff herself given that she is person to whom the cause of action accrues?

In AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 the Court of Appeal considered the proper construction of s 39 of the Act. Although s 39(3)(b) and s 39(4) were the subject of greater consideration, the term 'aware' in the context of the plaintiff's own knowledge in s 39(3) was considered by Buss JA who said the following [197] – [200]:
197… it is apparent that s 39 is concerned with whether the person had 'actual awareness or knowledge', or did not have 'actual awareness or knowledge', of the relevant matter or matters enumerated in s 39(3) or s 39(4), as the case may be …
198.The term 'aware', in s 39(3) and s 39(4), does not mean 'reasonable belief' or 'suspicion', and it does not refer to 'constructive awareness or knowledge'. There is no warrant in the statutory text, or the subject matter or purpose, of s 39 for qualifying the term 'aware' by reference to notions of 'reasonable belief' or 'suspicion' or by reading into s 39(3) and s 39(4) a doctrine of constructive awareness or knowledge.
199.Actual awareness or knowledge is derived from information and depends upon understanding. However, a person may be aware of or know a fact with differing degrees of certainty as to its existence and in differing degrees of detail. What degree of certainty and detail is required by s 39?
200.In my opinion, the degree of certainty and detail required by s 39 must be determined in the context of the subject matter and purpose of s 39; namely the granting of an extension of time, in certain circumstances, to commence an action for damages, after the limitation period has expired, in respect of personal injury. The 'actual awareness or knowledge' with which s 39 is concerned does not require knowledge of the relevant fact or facts with complete certainty as to its or their existence and beyond the possibility of error, or in complete detail. Rather, 'actual awareness or knowledge', within s 39(3) and s 39(4), means awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process. This construction is consistent with the statutory text, and the subject matter and purpose, of s 39 …
In this case the defendant argues that the law imputes to a principal knowledge gained by its agent and that the plaintiff's solicitors were the ones required to conduct reasonable inquiry in respect of the correct name. The defendant refers to Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10, a banking case in which Murphy J considered whether an agent's knowledge was imputed to the principal in the context of alleged unconscionable conduct to enforce a mortgage. In considering the principles of knowledge Murphy J said [321]:
321.As against a third party, the law imputes to a principal knowledge gained by its agent in the course of, and which is material to, a transaction in which the agent is employed on behalf of the principal, under such circumstances that it is the duty of the agent to communicate it to the principal. Such knowledge is equivalent to the actual personal knowledge of the principal and is not an aspect of constructive notice.
In this case the plaintiff knew that her solicitors were proceeding against Albany Traffic Control because her solicitors had told her that this was the situation. She had actual knowledge of the name of the business. The issue was whether the precise name of the company was something that her solicitors should have known prior to the expiration of the limitation period and was knowledge that should have been imputed to the plaintiff prior to the expiration of the limitation period.
The defendant argues that if the knowledge could not be imputed it would be in the interest of any represented party not to receive advice from their lawyer in order to protect the party from having knowledge. In some cases that may be so. However in this case the plaintiff's solicitors told the plaintiff that the business to be sued was Albany Traffic Control. The error was in the name of the company. An error made as a result of the company search. It could not be the imputed knowledge of the plaintiff that the company search was wrong. The plaintiff would have assumed that her solicitors made reasonable inquiry in relation to the company name.
When the claim for action 935 of 2015 was served on Advance Traffic Management (WA) Pty Ltd as second defendant the indorsement of claim referred to the plaintiff working under the second defendant's direction in 2012. Advance Traffic Management (WA) Pty Ltd did not purchase the business name Albany Traffic Control until 2013. It would have been clear to Advance Traffic Management (WA) Pty Ltd that an error had been made and that they were not the correct party because of the date being in the year before registration.
Order 21 r 5 Rules of the Supreme Court 1971 deals with amendments where errors of this type have been made. Order 21 r 5states:
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.
…
I raised O 21 r 5 Supreme Court Rules 1971 with counsel prior to hearing this application. Counsel for the plaintiff indicated that he wished to proceed with the originating summons as filed.
I find that the error in naming the second defendant in action 935 of 2015 is not an error of identity. It is an error of the type envisaged by O 21 r 5 Rules of the Supreme Court 1971. That could be corrected by amendment. It would not prejudice the defendant who is party to proceedings brought by Great Southern Group Training Incorporated, and the defendant was aware of the plaintiff's intention to proceed two months after the expiration of the 3 year period.
I dismiss both applications.