Brereton, Graeme Edgar v Chubb Security Australia Pty Ltd

[1997] FCA 1274

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Application to amend name of respondent - whether mistake in the identity of respondent - principals governing exercise of discretion.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - s 170EA.
Federal Court of Australia Act 1976 - s 59.
Federal Court Rules - O 13 r 2.
Victorian Supreme Court Rules 1987.

SmithKline Beecham (Australia) Pty Limited v Minister for Family Services (1993) FCR 587.
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231.
Weldon v Neal (1887) 19 QBD 394.
Transport Workers Union of Australia v National Dairies Limited No. 2 (1994) 57 IR 186.

GRAEME EDGAR BRERETON -v- CHUBB SECURITY AUSTRALIA PTY LTD
WI 1073 OF 1997

JUDICIAL REGISTRAR:  R.D. FARRELL JR
PLACE:  PERTH
DATE:  17 NOVEMBER 1997

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1073 of 1997

BETWEEN:            GRAEME EDGAR BRERETON
  APPLICANT

AND:  CHUBB SECURITY AUSTRALIA PTY LTD
  RESPONDENT

JUDICIAL

REGISTRAR:

R.D. FARRELL, JR

DATE OF ORDER:

17 NOVEMBER 1997

WHERE MADE:

PERTH

THE COURT ORDERS:

1.       The name of the respondent be amended from MSS Security Services Pty Ltd     to Chubb Security Australia Pty Ltd.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Industrial     Relations Court Rules.

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1073 of 1997

BETWEEN:             GRAEME EDGAR BRERETON
APPLICANT

AND:  CHUBB SECURITY AUSTRALIA PTY LTD
RESPONDENT

JUDICIAL
REGISTRAR:         R.D. FARRELL, JR

DATE:  17 NOVEMBER 1997

PLACE:                   PERTH

REASONS FOR DECISION

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for reinstatement and compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Graeme Brereton (“Mr Brereton”).

At a directions hearing on 13 November 1997, the applicant applied to amend the application to correct the name of the respondent by deleting the name “MSS Security Services Pty Ltd” originally appearing on the application form and substituting the name “Chubb Security Australia Pty Ltd”.

The application to amend was opposed. After hearing the submissions of counsel, the Court ordered that the name of the respondent be changed from “MSS Security Services Pty Ltd” to “Chubb Security Australia Pty Ltd”. I now publish my reasons for that decision.

Now that the Industrial Relations Court Rules have been repealed in so far as they briefly applied to proceedings in this Court under the Act, the relevant rules to be considered are the Federal Court Rules, and specifically Order 13 rule 2, dealing with the amendment of documents in proceedings other than orders and judgments.

Order 13 Rule 2 relevantly provides as follows:

“RULE 2       GENERAL

2(1)     Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such a manner as the Court thinks fit.

2(2)     All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding,. or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

2(3)     Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.

2(4)     Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.

2(5)     Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. ...”

Counsel for the then respondent referred me to SmithKline Beecham (Australia) Pty Limited v Minister for Family Services (1993) FCR 587, a decision of this Court, for a discussion by Beazley J of the relevant principles to be applied in exercising the Court’s discretion whether to grant leave to amend.

In that case, the solicitor for the applicant, intending to bring the application on behalf of a company which was the marketing company of a product, inadvertently used the name of the company who had, prior to relevant events, sold its assets to the marketing company. An extension of time within which to file the application had already been obtained before the mistake was discovered. The application for leave to amend the application pursuant to Order 13 of the Federal Court Rules so as to substitute “SmithKline Australia” as the applicant in the proceedings was opposed.

It should be noted that Justice Beazley was considering an earlier version of Order 13 rule 2. She cited and followed the High Court’s decision in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, which considered the relevant rule of the Rules of the Supreme Court 1987 of Victoria. In doing so, Beazley J held that the relevant rule of the Victorian Supreme Court Rules was not relevantly different to Order 13 rule 2 of the Federal Court Rules. The subsequent amendment to the Federal Court Rules has made the relevant rule even more similar to its Victorian equivalent.

In Bridge Shipping Pty Ltd v Grand Shipping SA, the High Court held that the power to amend the name of a party was a remedial provision, and extended to the case where a party intended to sue a person identified by a particular description, but a mistake had been made as to the name of the person answering that description. McHugh J gives the example of a plaintiff intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, who was mistaken as to the name of the person who answers that description.

In the present case, the applicant says he intended to bring his claim against the company who was his employer at the time of the alleged termination of his employment, but was mistaken as to the identity of the company answering to that description.

This would seem therefore to be a case where such leave to amend may be granted, in the absence of any other considerations.

Counsel for the then respondent sought to raise a further consideration: the rule in Weldon v Neal (1887) 19 QBD 394. That rule is to the effect that an amendment to permit the introduction of a statute-barred cause of action will not be permitted.

Justice Beazley in SmithKline Beecham (Australia) Pty Limited v Minister for Family Services cited numerous authorities to the effect that Order 13 rule 2, as it then stood, was subject to the rule in Weldon v Neal.

Since then, however, subrules (3) and (5) have been introduced. These subrules, in my view, clearly have the effect of overcoming the operation of the rule in Weldon v Neal.

Thus, if I am satisfied that the circumstances of this case fall within the ambit of subrule (4), Order 13 rule 2 requires that I exercise my discretion to grant leave to amend “if the Court thinks it just to do so”.

Any misgivings about restrictions on the power of the Court by statutory rule to over-ride a statutory limitation period have now been met by the new Section 59 (2B) of the Federal Court of Australia Act 1976 which provides that the Rules of Court may make provision for amendment “even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation...”.

Such misgivings would, in this case, have been assuaged in any event by the existence in Section 170EA(3) of the Act of a discretion to allow a further period within which an application under that Section may be filed. It does not follow, however, that the well established principles applicable to the exercise of the Court’s discretion to extend time (eg Transport Workers Union of Australia v National Dairies Limited No 2 (1994) 57 IR 186) are therefore also applicable to the exercise of the Court’s discretion to grant leave to amend to correct the name of a party. Beazley J does not suggest that this should be the case. It is still less apparent that it should be the case in view of the amendment to the Federal Court of Australia Act 1976 and the additions to Order 13 rule 2.

Turning then to the exercise of the discretion, I have noted that the applicant says he intended to bring his claim against his employer at the time of the alleged termination of his employment, but was mistaken as to the identity of the company answering to that description.

The original application form, filed by the applicant at the Australian Industrial Relations Commission on 24 September 1996, gives the “employer’s name” as “MSS Security Services Pty Ltd”. It appears two notices of employer’s appearance were filed, both by “Chubb Security Australia Pty Ltd” and both identifying that company as the “true employer”. A handwritten notice was filed by a Group Personnel officer of the company, dated 2 October 1996. A typed notice was filed on behalf of the company by the Chamber Commerce and Industry of Western Australia (Inc), dated 15 May 1997. Unhelpfully, the latter of these answers “Yes” to the question “Has the employee given your name correctly?”

The matter was referred from the Commission to the Industrial Relations Court of Australia on 30 April 1997 with the issue of the correct name of the respondent unresolved. It was transferred to this Court on 25 May 1997 in accordance with transitional arrangements consequent on the amendments to the jurisdictions of the relevant courts under the now Workplace Relations Act 1996.

A directions hearing was held on 13 May 1997, at which usual programming orders were made. Again unhelpfully, the heading of a minute of those orders was later forwarded to the parties showed the respondent to be “Chubb Security Australia Pty Ltd”. Unfortunately, as is often the case, that clerical error flowed over into subsequent documents filed by the parties, albeit in a slightly mutated fashion, with both the applicant and the respondent filing statements of facts with “Chubb Security Pty Ltd” named in the heading as the respondent.

It was not until a telephone directions on the 18 June 1997 that the issue of the correct name of the respondent was confronted. The applicant indicated at that stage that he still wished to proceed against MSS Security Services Pty Ltd. After that date, the Court notified MSS Security Services Pty Ltd, giving it a further opportunity to enter an appearance. As a result, the solicitors acting for Chubb Security Australia Pty Ltd obtained instructions to act for both companies.

The unusually protracted interlocutory proceedings since that time have largely been directed toward the exchange of sufficient information between the parties to enable the applicant to decide whether, in fact, he has been mistaken as to the identity of his employer and, if so, what the correct name of his employer at the relevant time was. The applicant declined the option of joining both companies as respondents.

In the interim, discovered documents have been inspected. The respondent also filed a “Statement of Employment History with Chubb Security Australia Pty Ltd”. This document purported to provide the details surrounding the sale on 2 June 1996 of the business known as “MSS Security”, and the consequential change in the identity of the applicant’s employer prior to the alleged termination of his employment in September of that year. It was the respondent’s assertion that Chubb Security Australia Pty Ltd was the correct name of the employer. The transmission of the business was, however, complex. Indeed, it was necessary for the respondent to file an amended version of its “Statement of Employment History with Chubb Security Australia Pty Ltd”, with substantial amendments. The respondent acknowledges the existence of some documents, such as the applicant’s group certificate, which appear to indicate that the applicant was employed by MSS Security Pty Ltd after the sale of the business. It has contended that Chubb Security Australia Pty Ltd is the correct employer, and that the documents which might suggest otherwise are erroneous.

The applicant, as one would expect, has not been prepared to accept the respondent’s assertions as to the identity of the true employer at face value, given that the identity of the employer potentially has an important impact on the nature of the argument on the merits. Rather, the applicant sought to make his own independent assessment as to which company was the employer, and thus which of the documents were correct and which incorrect.

It was not until he had concluded inspection of further discovered documents that the applicant was prepared, as he put it, to “bite the bullet”, accepting that he had been mistaken, that the respondent’s position was correct and that he should therefore apply to amend the application to correct the name of the respondent.

I am satisfied therefore that there has been a mistake as to the identity of the respondent. Further, it was an understandable and excusable mistake, given the existence of apparently misleading documents such as the applicant’s group certificate. The existence of these documents is not the fault of the applicant.

I further think it is just to permit the amendment to correct the name of the respondent. The applicant has an arguable case on the merits, assuming the facts are found to be as he alleges. There is no prejudice to Chubb Security Australia Pty Ltd in allowing the amendment, except for that which flows from having proceedings against it. There is no broader reason of public policy why the amendment should not be granted. Indeed, this would appear to be precisely the sort of case for which the amendments to Order 13 rule 2 were introduced.

For these reasons, therefore, I have exercised my discretion to order that Chubb Security Australia Pty Ltd be substituted as the respondent in these proceedings.

I certify that this and the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:

Date:                  17 November 1997

APPEARANCES

Counsel for the Respondent:  Mr M. Cole

Solicitors for the Respondent:      Terrace Law

Counsel for the Respondent:  Mr A.J. Power

Solicitors for the Respondent:           Jackson McDonald

Date of Hearing:  13 November 1997

Date of Decision:  17 November 1997