Bridge Shipping Pty Ltd v Grand Shipping SA

[1991] HCA 45

HIGH COURT OF AUSTRALIA

Brennan, Deane, Dawson, Toohey and McHugh JJ.

BRIDGE SHIPPING PTY. LTD. v. GRAND SHIPPING S.A.

(1991) 173 CLR 231

3 December 1991

Practice (Vict)

Practice (Vict.)—Process—Parties—Misdescription—Power to correct mistake in name of party—Whether limited to omission, clerical error and misdescription—Mistaken identity—Rules of Supreme Court of Victoria, r. 36.01(4).

Decisions

BRENNAN J. I agree with the reasons for judgment of McHugh J. and I would dismiss the appeal.

DEANE J. I agree with the judgment of McHugh J.

DAWSON J. This is an appeal against a decision of the Full Court of the Supreme Court of Victoria holding that the appellant, Bridge Shipping Pty. Ltd. ("Bridge Shipping"), was rightly refused leave to amend the proceedings by substituting for the name of an existing third party, Grand Shipping S.A. ("Grand Shipping"), the name of another company, Rainbow Line S.A. ("Rainbow Line").

2. Bridge Shipping was engaged by Philip Morris Ltd. to arrange for the shipment of thirty-two containers of tobacco from Rio Grande in Brazil to Melbourne. Bridge Shipping made the arrangement through another company and was unaware of the carrier's identity. Bills of lading in respect of the containers were issued on behalf of the master of the ship in which they were to be carried, namely, the "Green Sand". The bills of lading, which incorporated the Hague Rules, did not reveal the identity of the carrier. Rule 6 of Art.III of the Hague Rules provides that the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

3. The "Green Sand" arrived in Melbourne and was unloaded between 21 July and 23 August 1986. It was discovered that a number of the containers were missing and the contents of others were damaged. On 8 January 1987, Philip Morris Ltd. commenced an action for damages against Bridge Shipping. Since the identity of the carrier was unknown to Bridge Shipping, its solicitor searched Lloyd's Register and found that Grand Shipping was registered as the owner of the "Green Sand". Upon the assumption that the owner was the carrier, Grand Shipping was joined by Bridge Shipping as a third party in the action.

4. In fact, Grand Shipping had demised the "Green Sand" by a bareboat charter to Rainbow Line so that the latter was the carrier. This did not become known to Bridge Shipping's solicitor until he received Grand Shipping's defence on 29 September 1987. By then the time under the Hague Rules for commencing third party proceedings against Rainbow Line had expired.

5. Were it not for the expiry of the limitation period, Bridge Shipping could have applied under r.9.06 of Ch.I of the Rules of the Supreme Court of Victoria for the substitution of Rainbow Line for Grand Shipping as a third party. That rule provides for the substitution of a person who ought to have been joined as a party for a person who is not a proper or necessary party. But under r.9.11(3)(a) the proceeding against Rainbow Line would have been deemed to have been commenced at the time of amendment of the filed originating process and a defence would have been available to Rainbow Line under the Hague Rules. In those circumstances, any application for the substitution of Rainbow Line for Grand Shipping is likely to have been refused because it would have been futile in the light of the defence available to Rainbow Line.

6. I have put the matter that way because that is how I understand the position now to be. At one time it was thought that the substitution or addition of a defendant by amendment related back to the commencement of the proceedings so that, if the proceedings were commenced before the expiry of the limitation period, the amendment would defeat the limitation period even though the amendment was made after the expiry of that period. Upon that view, the reason for not allowing the amendment was that it would deprive the defendant substituted or added of the benefit of the limitation period: see Mabro v. Eagle, Star and British Dominions Insurance Company Limited (1932) 1 KB 485 cf. Davies v. Elsby Brothers Ltd. (1961) 1 WLR 170; (1960) 3 All ER 672. The accepted view now is - particularly having regard to the present form of the relevant rule (r.9.11(3)) - that the substitution or addition of a defendant by amendment does not relate back to the commencement of proceedings but takes effect from the time of the amendment. That means that the amendment cannot prejudice any existing rights under a statute of limitations (or any other limitation period). Accordingly, leave to amend to substitute or add a defendant who has a good defence under a period of limitation will generally be refused as serving no useful purpose: Liff v. Peasley (1980) 1 WLR 781; (1980) 1 All ER 623; Ketteman v. Hansel Properties Ltd. (1987) AC 189.

7. Amendments adding a cause of action (as opposed to a party) do relate back to the commencement of the proceedings and it was decided as long ago as 1887 that such amendments ought not to be allowed to defeat a limitation period. In Weldon v. Neal (1887) 19 QBD 394, at p 395 Lord Esher M.R. said:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust."

The so-called rule in Weldon v. Neal was abrogated by statute in Victoria in 1986 by the insertion of a new s.34 in the Limitation of Actions Act 1958 (Vict.). Sub-section (1) of the new section reads:

"If a court would, but for the expiry of any relevant

period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise."

That provision appears under the heading "Abrogation of rule in Weldon v. Neal (1887) 19 QBD 394" and it is clear enough that it is concerned with an amendment to raise a new cause of action, not to substitute or add parties.

8. Rather than make its application under r.9.06 Bridge Shipping made application under r.36.01, which relevantly provides that:

"(1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. (2) In this Order 'document' includes originating process, an indorsement of claim on originating process and a pleading.

(3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding. (4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.

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

(6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. (7) For the purpose of paragraph (6) 'any other party to the proceeding' includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party."

9. The seeming overlap between r.9.06 and r.36.01 is somewhat confusing, but the answer lies to a considerable extent in history. The origin of the relevant rules of both of those Orders is the previous O.16 (which was, in all relevant respects, the equivalent of O.16 of The Rules of the Supreme Court 1883 (U.K.)). Rule 2 of that Order provided:

"Plaintiffs may be substituted or added. - Where an

action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as may seem just."

Rule 11 of the Order provided:

"Amendment or misjoinder of parties. - No cause or

matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a Judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as a next friend of a plaintiff under any disability, without his consent in writing thereto."

10. Although r.2 of O.16 referred only to plaintiffs, it gave partial expression to the inherent jurisdiction of the Court to deal with misnomer or misdescription by amendment, the same principle being applicable in the case of plaintiffs and of defendants: Alexander Mountain and Co. (Suing as a Firm) v. Rumere Ltd. (1948) 2 KB 436. What is important is the distinction between the correction of a misnomer or misdescription, which was something dealt with by r.2 (now reflected in r.36.01), and the addition or substitution of parties for the parties originally joined, which was something dealt with by r.11 (now reflected in rr.9.05, 9.06 and 9.07). The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed. In such a case, at least as a matter of theory, no question of defeating a statute of limitations arises.

11. In Rainbow Spray Irrigation Pty. Limited v. Hoette (1963) NSWR 1440. Walsh J. gave leave to amend the name of the plaintiff from "Rainbow Spray Irrigation Pty. Limited" to "Rainbow Spray Sales Pty. Limited", exercising the inherent power of the court to do so. He remarked ibid., at p 1441 that that power of amendment:

"may not be used so as to change the constitution of the action, to make it an action between different parties from those that were the parties to it before the amendment".

He continued:

"If this case ought to be regarded truly as the substituting for one plaintiff of another plaintiff, then I think on the authorities, I would be bound to refuse it, but it is not clear that it ought to be so regarded. ...

I think I am entitled, in the circumstances of this case, to treat this as a case of correcting an error in naming the true plaintiff, and not as being an attempt to substitute one party for a different party. To put it another way, I think it can be said that one ought to consider the action, from the time of writ onwards, to have been and to have been intended to be an action by Rainbow Spray Sales Pty. Limited, but because of someone's error the wrong name was typed on the documents."

And in J. Robertson and Co. Ltd. (In Liq.) v. Ferguson Transformers Pty. Ltd. (9), Walsh J. allowed the amendment of the name of a defendant by substituting "Philips Industries Pty. Ltd." for "Philips Electrical Pty. Ltd.", holding that the original description of the defendant was a mere misnomer and that, for that reason, the expiry of a limitation period did not stand in the way of the amendment.

12. Similarly, in Whittam v. W.J. Daniel and Co. Ltd.(10) the Court of Appeal upheld the amendment of the name of the defendant from "W. J. Daniels and Co. (a firm)" to "W. J. Daniel and Co. Ltd." notwithstanding that the action would have been statute barred at the time of the amendment. Donovan L.J. said ibid., at p 282:

"I think one can have a case where the misdescription of a defendant corporation, whether it be by the omission of the word 'Limited' or by calling it a firm or by a combination of both, as it happened here, can be a mere misnomer. There may be other cases, such as the case recently decided by the Court of Appeal, Davies v. Elsby Brothers Ltd., where there is no such mere misnomer, but the adding of a new defendant. Each case depends upon its own facts."

13. But the line between the correction of a misnomer or misdescription and the substitution of a different party is not always easy to draw. The mere fact that the existing name is an accurate description of an existing person may be decisive. In Davies v. Elsby Brothers Ltd. the plaintiff issued a writ against "Elsby Brothers - a firm" claiming damages for negligence for injuries received while in the employ of the defendants. During the plaintiff's employment the firm Elsby Brothers was taken over by a company, Elsby Brothers Ltd. An amendment to substitute the company's name for that of the firm was disallowed. Pearce L.J.(12) pointed out that the date of the plaintiff's accident was not specified in the writ and that it was possible that it had occurred whilst his employer was still a firm. He continued:

"Therefore, there being the two definite, separate entities, the firm and the company, it is not possible to say that the inclusion of the firm on the writ was a mere misnomer for the inclusion of the limited company."

See also Beardmore Motors Ltd. v. Birch Bros. (Properties) Ltd. (1959) Ch 298.

14. Although r.36.01(1) derives some of its wording from the old O.16, r.2 - which dealt with actions brought by mistake in the name of the wrong plaintiff - its generality expresses the inherent jurisdiction of the court to amend defects or errors, the jurisdiction which lay behind the single instance covered by O.16, r.2. It is in that way only that it deals with the amendment of parties. The addition, removal or substitution of parties is dealt with elsewhere in r.9.06. In providing that a mistake in the name of a party may be corrected whether or not the effect is to substitute another party as a party, r.36.01(4) is intended to serve the limited purpose of avoiding the difficulty where the formal effect of the correction of a misnomer or misdescription is to substitute another person as a party. But it does not otherwise authorize the addition or substitution of a party. That must be done under r.9.06. There were limits upon the exercise of the inherent jurisdiction. One was thought to be the rule in Weldon v. Neal. That rule is now abrogated by r.36.01(6) (with the backing of s.34 of the Limitation of Actions Act). Since the rule in Weldon v. Neal extended only to the amendment of causes of action and not parties, it is made clear by r.36.01(7) that the principle lying behind the abrogation of the rule in Weldon v. Neal is extended to the amendment of parties: where the amendment amounts merely to the correction of a mistake in the name of a party, the expiry of a limitation period is not to stand in the way of the amendment if any other party to the proceeding would not be prejudiced in a way that could not be fairly met by an adjournment, an award of costs or otherwise. In order to make it clear that the amendment of a party under r.36.01(4) may not raise a defence based upon a limitation period, r.36.01(5) re-establishes the relation back of the amendment to the commencement of the proceedings.

15. But the amendment of the parties for which O.36 provides is restricted to an amendment to correct a mistake in the name of a party. True it is that the correction of the mistake may result in the substitution of another person as a party, but this is permissible only if it is the result of the correction of an error in the naming of the true party. No doubt the substitution of "Rainbow Spray Sales Pty. Limited" for "Rainbow Spray Irrigation Pty. Limited" as plaintiff in Rainbow Spray Irrigation Pty. Limited v. Hoette resulted in the substitution of another party for an existing party, but it was regarded by Walsh J. as within the inherent jurisdiction of the court to allow the amendment effecting the substitution because it was the correction of an error in the name of the plaintiff and not in any other sense the substitution of a different plaintiff for an existing plaintiff. It is, as I have endeavoured to explain, the inherent jurisdiction to correct a misnomer or misdescription which lies behind the relevant paragraphs of r.36.01. Otherwise, the addition, removal or substitution of parties is dealt with by r.9.06, with more stringent restrictions where the amendment is sought after the expiry of a relevant period of limitation.

16. In England the relevant provisions of O.16 of The Rules of the Supreme Court 1883 (U.K.) eventually found their way into O.15, r.6 (misjoinder and nonjoinder of parties) and O.20, r.5(3) (amendment to correct the name of a party) of the Rules of the Supreme Court 1965 (U.K.). Order 20, r.5(3) provides:

"An amendment to correct the name of a party may be

allowed under paragraph (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 person intending to sue or, as the case may be, intended to be sued."

17. In Evans Constructions Co. Ltd. v. Charrington and Co. Ltd.(1983) QB 810 Evans Constructions entered into a lease with Charrington. During the currency of the lease, or shortly thereafter, Charrington assigned the reversion to Bass Holdings Ltd., a company in the same group as Charrington. Charrington continued to deal with the leased property as managing agent for Bass. Evans Constructions entered into a lease with Bass for a new term of three years which was said to be supplemental to the original lease. Upon being given a notice by Charrington as agent for Bass terminating the tenancy, Evans Constructions took proceedings against Charrington as landlord under the Landlord and Tenant Act 1954 (U.K.) for a new tenancy. Evans Constructions was allowed to join Bass as an additional respondent under O.20, r.5 outside the time limit for bringing proceedings imposed by the Act. This joinder was upheld by a majority of the Court of Appeal. Donaldson L.J. said ibid., at p 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 suing A in the mistaken belief that A is the party who is responsible for the matters complained of and 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."

I accept entirely his Lordship's formulation of the distinction, but he then went on to hold ibid., at pp 821-822:

"In the instant case I have not the slightest difficulty in accepting Mr. Greenwood's assertion (Evans Constructions' solicitor) that he intended to sue the relevant landlord under the Act. After all, he was responding on behalf of his lessee client to a notice to quit given on behalf of the landlord and it would have been surprising, to say the least, if he had thought that it was appropriate to respond by claiming a new lease from the managing agent or any other stranger to the landlord and tenant relationship. Accordingly I would conclude that he made a genuine mistake of a character to which Ord.20, r.5(3) can apply."

With the greatest of respect (and notwithstanding the contrary view expressed by Clarke J. in Lloyd Steel Co. (Aust.) Pty. Ltd. v. Jade Shipping S.A (1985) 1 NSWLR 212, at p 218. I do not think that the conclusion follows. A mistake in the name of a party is not, to my mind, the same thing as a mistake in the identity of that party. In other words, one may intend to sue the landlord but be mistaken in the belief that X is the landlord. That is not to mistake the name of X, but to mistake the identity of the landlord.

18. I prefer the dissenting view of Waller J. in Evans Constructions Co. Ltd. v. Charrington and Co. Ltd. where he said (1983) QB at p 816:

"In the present case there was no mistake as to name. Mr. Greenwood, Evans' solicitor, in his affidavit frankly stated he thought Charringtons was the landlord. The mistake here was not a mistake as to name; it was a mistake as to identity. ... The words 'correct the name' are not apt to cover the case of changing the party."

19. In Central Insurance Co. Ltd. v. Seacalf Shipping Corporation (The "Aiolos") (1983) 2 Lloyd's Rep 25 the Court of Appeal distinguished Evans Constructions Co. Ltd. v. Charrington and Co. Ltd. In that case the insurer claimed as plaintiff whereas the claim should have been made in the name of the insured. After the expiry of the limitation period under the Hague Rules, the insurer sought to add the insured as plaintiffs. Leave to amend was refused and the refusal was upheld by the Court of Appeal. Oliver L.J., who delivered the judgment of the Court, said ibid., at pp 30-31:

"For my part, I find it unnecessary to consider whether the Hague r.6 period is or is not a relevant period of limitation for the purposes of r.5(2), for in my judgment the case is not one which falls within r.5(3). The analogy which Mr. Gruder seeks to draw with the Charrington case is not, in my judgment a permissible one. No doubt if the fact were that the actual insurer was not the plaintiff, but, say, a subsidiary company, there could or might be a true analogy with that case. But the instant case was not a case, as was the Charrington case, of a mistaken belief that the person made party to the proceedings fulfilled a particular description, videlicet that of landlord or insurer, but a case of an erroneous belief that the plaintiff, because he was in fact what he was thought to be, that is, the insurer, had as a result of that certain legal rights which he did not in fact have. There was therefore no error either as to the name or as to the identity of the party which fell to be corrected, but simply an error of law as to the rights possessed by the correctly identified party. Order 20, r.5(3) simply does not extend to this sort of error and the application under this rule must, therefore, fail."

For my own part I find it difficult to see any relevant distinction between The "Aiolos" and Evans Constructions Co. Ltd. v. Charrington and Co. Ltd. No doubt the insurer sued in its own name in The "Aiolos" because it believed it had a right to do so. Similarly, Evans Constructions sued Charrington because it thought Charrington was liable. The fact that the insurer in The "Aiolos" thought that it had a claim because it misunderstood the rules of subrogation and that Evans Constructions thought that Charrington was liable because it thought that it was the landlord is not to the point. No doubt a plaintiff ordinarily sues because he believes he has a claim and a defendant is sued because the plaintiff believes that he is the person liable. If the claim lies in someone else or if the defendant is not liable but someone else is, that does not convert the mistake into a mistake in the name of the party joined. It is not a question of giving the rule a narrow or a wide construction. Giving the rule its widest construction, the question remains whether there was a mistake in name, not a mistake in the joinder of a particular party for some other reason.

20. The distinction was made plain in Mitchell v. Harris Engineering Company Ltd. (1967) 2 QB 703 where the plaintiff, who was injured at work, sought to sue his employer, Harris Engineering Company Ltd. By a mistake on the part of his solicitors' clerk, who searched the wrong register, the company sued was Harris Engineering Company (Leeds) Ltd. That was an associated company, having common directors and a common secretary. The writ was served on the secretary at an address which was the address of both companies. Leave to amend the name of the defendant was given under O.20, r.5. The Court of Appeal held that leave was correctly given, notwithstanding the expiry of the limitation period. It was not suggested in that case that there was not a mistake in the name of the plaintiff; what was suggested was that the rule does not apply where the mistake is due to fault. That construction was rejected. It is true that Lord Denning M.R. suggested ibid., at p 718 that O.20, r.5(3), which allows the correction of the name of a party notwithstanding that it has the effect of substituting a new party (the equivalent of r.36.01(4)), "has removed the injustice caused by the decision in Davies v. Elsby Brothers". But in making that suggestion he was clearly regarding this case as one of misnomer where the name mistakenly given to the defendant could not be corrected because it represented an existing person. On the other hand, in Teys Bros (Beenleigh) Pty. Ltd. v. AN.L Cargo Operations Pty. Ltd. (1990) 2 Qd R 288 Cooper J. refused to allow the amendment of the name of the defendant under O.32, r.1(3) of the Rules of the Supreme Court of Queensland (which is virtually identical to the English O.20, r.5(3)). The plaintiff advised its solicitors that the body it dealt with was described solely as "A.N.L.". A search of the office of the Corporate Affairs Commission in Brisbane revealed that there was no company of that name but that there was a company named A.N.L. Cargo Operations Pty. Ltd. The plaintiff sued that company believing it to be the person with whom it had contracted. That belief was ill-founded, but the mistake was in the identity of the person alleged to be liable, not in the name of the person sued.

21. It may sometimes be difficult to determine whether there is a mistake in name or a mistake in identity. When that is so and an amendment is sought under r.36.01, the question can only be resolved by asking whether, in all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed. If so, then there is a misnomer or misdescription and the rule applies notwithstanding that, as a matter of formality, the amendment results in the substitution of another entity. If not, and the effect of the amendment would be, not to correct the name of the party, but to alter the identity of the party, then that rule does not apply.

22. In the present case it is, to my mind, quite clear that there was no mistake made by Bridge Shipping in the name of the third party which it joined. It joined Grand Shipping and intended to join Grand Shipping. It did so because Grand Shipping was the owner of the "Green Sand" and it assumed that the owner was also the carrier. It was wrong in this, but it made no mistake about Grand Shipping's name. Its mistake was in the identity of the carrier. Rules 36.01(1) and (4) were, therefore, not available to Bridge Shipping.

23. In my view, the appeal should be dismissed.

TOOHEY J. This appeal concerns the operation of O.36.01 of Ch.I of the Victorian Supreme Court Rules ("the Victorian Rules"). Order 36 carries the title "Amendment".

2. Order 36.01 was inserted in the Victorian Rules in 1986. It has similarities with O.20, r.5 of the Rules of the Supreme Court (U.K.) ("the English Rules"). Order 20 of the English Rules was introduced to overcome the limitations of the existing rules revealed by a number of decisions: see Mitchell v. Harris Engineering Company Ltd. (1967) 2 QB 703, at p 718 It may be accepted that O.36 of the Victorian Rules was introduced for much the same reason.

3. Order 36 does not stand in isolation and must be read together with other relevant rules, in particular O.9 which is entitled "Joinder of Claims and Parties". Order 9.06 reads:
" At any stage of a proceeding the Court may order that - (a) any person who is not a proper or necessary party,

whether or not he was one originally, cease to be a party;

(b) any of the following persons be added as a party, namely -

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies."

4. The appellant ("Bridge Shipping"), which seeks to bring itself within O.36.01, made no attempt to invoke O.9.06. The reason is to be found in O.9.11 which deals with the amendment of proceedings after a change of party. Order 9.11(3) provides that in such a situation: "(a) the proceeding against the new defendant commences upon

the amendment of the filed originating process".

It follows that, if the cause of action against the person sought to be substituted as a party is already statute barred, the plaintiff gains nothing by the substitution. The cause of action remains statute barred. Order 36.01, however, expressly empowers the Court to order the substitution of another person (in the circumstances there mentioned) as a party, "notwithstanding the expiry of any relevant limitation period", where the court is satisfied that "any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his ... defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise": O.36.01(6). And, 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 is taken to have commenced with respect to that person on the day the proceeding commenced: O.36.01(5). In consequence, if the original proceeding was brought within the relevant limitation period, the amendment is unaffected by the expiration of the period.

5. In the present case Bridge Shipping has been sued by Philip Morris Ltd. ("Philip Morris") in respect of the sea carriage of the latter's goods. Bridge Shipping contracted with another company, Ausminco Pty. Limited, to arrange the carriage of the goods but was unaware of the carrier's identity. The ship's master issued a bill of lading for the goods but that document did not identify the carrier. On arrival of the ship in Melbourne, some containers were missing and in some the contents were damaged. When Bridge Shipping was sued for damages in respect of the lost and damaged goods, its solicitor searched Lloyd's Register and found that the registered owner of the ship was the first respondent ("Grand Shipping"). Bridge Shipping issued a third party notice against Grand Shipping. The third party notice does not assert Grand Shipping to have been the carrier of the goods; rather, it pleads that Grand Shipping was the owner of the ship and asserts a duty of care on its part:
"6. ...
(a) to make the said ship seaworthy; (b) to properly man, equip and supply the said ship; (c) to make the hold and all other parts of the said

ship in which the containers and the cargo were to be carried fit and safe for the reception, carriage and preservation thereof.

7. Further or alternatively Grand Shipping owed to the Defendant at all times material a duty safely to keep and care for the cargo and the containers."

6. When he received a defence to the notice, Bridge Shipping's solicitor learned that, by a bareboat charter, Grand Shipping had chartered the ship to Rainbow Line S.A. ("Rainbow Line") which had been the carrier of the goods. By that time any right of indemnity or contribution against Rainbow Line was statute barred. Bridge Shipping then sought to have the third party notice amended by substituting Rainbow Line for Grand Shipping, pursuant to O.36.01, relying upon sub-r.(6) to overcome the limitation period.

7. In support of the application the solicitor deposed as follows:
"6. By reason of the entry in Lloyd's Register, at all

times prior to the event referred to in paragraph 10 hereof, I formed the view and thereafter believed that the bill of lading had been issued on behalf of Grand Shipping. In view of the terms of clause (2) of the conditions on the reverse of that document, I was concerned to preserve Bridge Shipping's rights against the Owner of such vessel and specifically in relation to the time limitation provision contained in Article III Rule 6 of the Hague Rules."

The inference to be drawn from that paragraph is that the solicitor concluded that the bill of lading for the goods had been issued on behalf of Grand Shipping as owner of the ship. Bridge Shipping contended that a further inference may be drawn, namely, that the solicitor believed the owner to be the carrier. However, the material does not support such an inference. The third party notice asserts ownership of the ship by Grand Shipping; the duty of care which is then pleaded is not said to derive from any other relationship or circumstance.

8. So far as is relevant here, O.36.01 is expressed to be for the purpose of determining the real question in controversy between the parties and for correcting any defect or error in any proceeding. Sub-rule (4) expressly provides: "A mistake in the name of a party may be corrected ... whether or not the effect is to substitute another person as a party." It is sub-r.(4) upon which Bridge Shipping expressly relied.

9. The question facing the primary judge and the Full Court of the Supreme Court of Victoria was whether Bridge Shipping's application was in truth to correct a mistake in the name of a party. The primary judge and the Full Court said that it was not, that in the circumstances there had been more than a mistake in name. The same question now faces this Court.

10. In approaching the scope and operation of O.36.01, there is no justification for giving the provision a narrow operation. Clearly enough, it was introduced to widen the powers of the Supreme Court of Victoria to allow amendments so that the Court might determine the real question in controversy and correct defects or errors in any proceeding. At the same time, O.36.01 is not a duplication of O.9.06. In his judgment in the Full Court in the present case, Crockett J. (with whom Kaye and Southwell JJ. agreed) commented:
"Rule 36.01(4) must ... be strictly delimited in its
operation in order to prevent the possibility of an added or substituted party suffering a 'back door' deprivation of a valid defence he already possesses as a vested right." One might cavil at the words "strictly delimited", but Crockett J. is surely right in warning against giving O.36.01 an operation which renders O.9.06 largely nugatory.

11. The issue is whether the substitution sought by Bridge Shipping is by reason of a "mistake in the name of a party". Bridge Shipping says that there was such a mistake. It thought that Grand Shipping was the carrier of the goods; it knows now that Rainbow Line was the carrier. But, answers Rainbow Line, there was no mistake in the name of a party. This is not a case of Bridge Shipping intending to join Rainbow Line as a third party and getting the name wrong. It meant to join Grand Shipping because it was the owner of the ship and Bridge Shipping assumed (wrongly, as it turned out) that the bill of lading was issued on behalf of Grand Shipping.

12. Crockett J. thought that "the better view is that the rule as to correction of a mistake in the name of a party was intended to (and, in fact, must) be confined to mere cases of misnomer, misdescription, typographical or clerical error and the like". To confine O.36.01 to "mere cases of misnomer" and the like is unduly restrictive, but to spell out the boundaries of the provision is far from easy. Certainly a mistake in the name of a party includes a formal error: see, for instance, Rainbow Spray Irrigation Pty. Ltd. v. Hoette (1963) NSWR 1440. Whittam v. W.J. Daniel and Co. Ltd.(26) And, notwithstanding Davies v. Elsby Brothers Ltd. (1961) 1 WLR 170 (1961) 1 WLR 170; (1960) 3 All ER 672 one might think that a reference to a defendant as a firm, when it was a company, is a mistake in the name of the defendant even though, conceptually, different entities are involved. At the other end of the spectrum, a wrong assessment of one person among several as the person liable in respect of the plaintiff's claim is not a "mistake in the name of a party". As Crockett J. observed, that amounts to saying no more than that it was always the intention to sue the person who was liable. It is not particularly helpful to look to earlier decisions turning on differently worded provisions.

13. In Davies v. Elsby Brothers Ltd. Devlin LJ. postulated the following test ibid., at p 176; p 676 of All ER
"how would a reasonable person receiving the document take
it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: 'Of course it must mean me, but they have got my name wrong,' then there is a case of mere misnomer. If, on the other hand, he would say: 'I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries,' then it seems to me that one is getting beyond the realm of misnomer." Devlin L.J.'s test has been referred to in England and in Australia with apparent approval: see, for instance, Whittam v. W.J. Daniel and Co. Ltd. (1962) 1 QB, at p 277 and J. Robertson and Co. Ltd. (In Liq.) v. Ferguson Transformers Pty. Ltd. (1970) 44 ALJR 441, at p 443 Devlin LJ. was concerned to reject the argument that the intention of the framer of the document was decisive. It was in that context that his Lordship spoke of the reaction of "a reasonable person receiving the document". In the present case the question is whether there was a mistake in the name of the third party (though it is usually the name of the defendant with which these applications are concerned). That question must be answered by reference to all the circumstances including the state of knowledge and belief of the plaintiff and the plaintiff's intentions, judged by reference to the circumstances. Against that background and as part of the overall circumstances, it may be relevant to look at the reaction of the "reasonable" recipient of such a document. But, for the purposes of O.36.01, I do not find Devlin L.J.'s test helpful.

14. The position of the particular defendant arises for independent consideration only when an application is truly within O.36.01 and the Court is asked to make an order, notwithstanding the expiry of the relevant limitation period. Whether the defendant would be "prejudiced" by the making of an order then becomes relevant.

15. More relevant for the present appeal are those cases which have considered O.36.01 or its counterparts here and in England. In Evans Constructions Co. Ltd. v. Charrington and Co. Ltd. (1983) QB 810 the Court of Appeal allowed a lessee, where the lessor had assigned the reversion and the lessee applied for a new tenancy from the original lessor, to add the name of the assignee of the reversion as a defendant in proceedings for a new tenancy. In a very real sense there was no mistake as to the name of the person against whom the application for a new tenancy was made. The lessee was not confused as to the name; it intended to sue the original lessor, not the assignee of the reversion. It was for that reason that Waller L.J. was in dissent ibid., at p 816. However, Donaldson L.J., who was one of the majority, thought that the application fell within O.20, r.5(3) because it was the lessee's intention to proceed against the "relevant landlord", whoever answered that description, and the lessee had made a mistake in the person it so identified ibid., at pp 821-822.

16. A decision also in point is Central Insurance Co. Ltd. v. Seacalf Shipping Corporation (The "Aiolos") (1983) 2 Lloyd's Rep 25 where the Court of Appeal upheld a refusal to substitute, for the names of the insurers of the buyers of goods as plaintiffs, the names of the buyers themselves. Oliver L.J., with whom Ackner L.J. agreed, declined to find an analogy in Evans Constructions Co. Ltd. v. Charrington and Co. Ltd., saying:
ibid., at pp 30-31:

"But the instant case was ... a case of an erroneous belief that the plaintiff, because he was in fact what he was thought to be, that is, the insurer, had as a result of that certain legal rights which he did not in fact have. There was therefore no error either as to the name or as to the identity of the party which fell to be corrected, but simply an error of law as to the rights possessed by the correctly identified party."

17. Bridge Shipping relied upon the decision of Clarke J. in Lloyd Steel (Aust.) Pty. Ltd. v. Jade Shipping S.A (1985) 1 NSWLR 212. There is a similarity with the present case in that the solicitor for the plaintiff searched Lloyd's Register and learned the name of the owner of the ship which had carried his client's goods. As a result of his search, he formed the view that the owner, the first defendant, was the carrier of the goods and sued accordingly. The solicitor later learned that the ship had been chartered by the owner to another company (the one proposed to be substituted as first defendant). Clarke J. granted the plaintiff's application to substitute the other company as defendant, saying that he was attracted to Donaldson L.J.'s judgment in Evans Constructions Co. Ltd. v. Charrington and Co. Ltd. and proposed to apply it. There are differences between O.20, r.5(3) of the English Rules and the relevant New South Wales rule considered in Lloyd Steel (Aust.) Pty. Ltd. v. Jade Shipping S.A And there are differences between the latter and the Victorian rule on which this case turns. One difference is that Pt 20, r.4(3) of the Supreme Court Rules (N.S.W.) empowers the Court to correct a mistake, "whether or not the effect of the amendment is to substitute a new party" (emphasis added). But the real point of distinction between the New South Wales decision and the present case is that in the former the solicitor intended to sue the carrier of the goods and, in a real sense, was mistaken as to the name of the carrier. That is not the case here.

18. Where an application under O.36.01(4) is resisted, the task for the Court is to characterize the mistake which the applicant claims to have made. In the present case, if Bridge Shipping intended, by its third party notice, to join the carrier of the goods in the proceeding and wrongly concluded Grand Shipping to be the carrier, it is but a short step to conclude that Bridge Shipping made a mistake in the name of the third party. Even on that approach, it would not be right to say that it was a mere case of a misnomer. It was more than that but it was still a "mistake in the name of a party" within O.36.01. But if, as the material before us shows, Bridge Shipping intended to join Grand Shipping as a third party because it understood no more than that Grand Shipping was the owner of the ship and that the bill of lading had been issued on its behalf, the situation was not one of mistake in the name of the third party. Bridge Shipping was right in its understanding that Grand Shipping was the owner of the ship. It was wrong in its understanding that the bill of lading had been issued on behalf of Grand Shipping. Put another way, Bridge Shipping's mistake was as to the existence of a charter to Rainbow Line; it did not know that there had been a bareboat charter. The solicitor's mistake was, as counsel for Grand Shipping contended, "the incorrect assumption that there was no person interposed between the third party he had sued - the owner of the vessel - and those who were responsible for issuing the bill of lading and having care of the cargo and carrying it". Bridge Shipping joined Grand Shipping as owner of the ship, not as carrier of the goods. And, so far as the evidence reveals, that was Bridge Shipping's intention.

19. The application was not to correct a mistake in the name of a party by substituting another person as a party (O.36.01(4)); it was an application to substitute a person who ought to have been joined as a third party in the first place: O.9.06(c).

20. The appeal should be dismissed.

McHUGH J. The question in this appeal is whether O.36.01 of the Supreme Court Rules (Vic.) authorises the substitution of another person for the person named as defendant in the action after the expiration of the relevant limitation period for bringing an action against the first person.

2. Order 36.01 relevantly provides:

"(1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(2) In this Order 'document' includes originating process, an indorsement of claim on originating process and a pleading. ...

(4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.

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

(6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.

(7) For the purpose of paragraph (6) 'any other party to the proceeding' includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party."

The factual background

3. In May 1986, the vessel "Green Sand" left Brazil en route to Melbourne. On board were 32 containers of tobacco owned by Philip Morris Ltd. That company had engaged the appellant, Bridge Shipping Pty. Ltd. ("Bridge"), to arrange for the carriage of those containers to Melbourne. Bridge employed another company to arrange the carriage of the goods and was unaware of the identity of the carrier. On 12 May 1986, the ship's master issued bills of lading in respect of the containers. The bills did not name the carrier. When the vessel arrived in Melbourne, a number of containers were missing and the contents of others were damaged.

4. On 8 January 1987, Philip Morris Ltd. issued a writ claiming damages against Bridge. Bridge sought contribution or indemnity from the person responsible for the damage. The solicitor for Bridge conducted a search of the Lloyd's Register. The search revealed that the registered owner of the vessel was Grand Shipping S.A. ("Grand"). Bridge then issued a third party notice against Grand. It was not until 29 September 1987 when Grand delivered its defence to the third party claim that the solicitor for Bridge discovered that, by a bareboat charter agreement made in Tokyo in 1984, Grand had chartered the "Green Sand" to Rainbow Line S.A. ("Rainbow") and that Rainbow had been the carrier of the tobacco.

5. The defence to the third party proceedings was not delivered until after the time for suing Rainbow for indemnity or contribution had expired. In an attempt to overcome this difficulty Bridge made an application under O.36.01 to substitute Rainbow as a party for Grand. However, Master Brett refused the application. King J. dismissed an appeal from the Master's decision. An appeal to the Full Court of the Supreme Court of Victoria (Crockett, Kaye and Southwell JJ.) against the decision of King J. was unanimously dismissed. Pursuant to the grant of special leave, Bridge now appeals to this Court against the order of the Full Court.
The competing interpretations of O.36.01

6. Bridge contends that the case is within O.36.01(4) because the mistake which it made was a mistake as to which person or corporation fell within the description of the carrier of the tobacco. Bridge says that the mistake which it made was not a mistake as to the category of persons who were subject to the legal liability. If, for example, Bridge had mistakenly sued the wharfinger, thinking it was liable, and now wished to sue the carrier, it concedes that there would not be a mistake "in the name of a party". But Bridge contends that, since it has made a mistake as to the name of the carrier, it has made a "mistake in the name of a party" within the meaning of O.36.01(4). In the Full Court, Crockett J., with whose judgment Kaye and Southwell JJ. agreed, held that the class of mistake with which the sub-rule deals is more limited. His Honour said:
"I should have thought that the better view is that the
rule as to correction of a mistake in the name of a party was intended to (and, in fact, must) be confined to mere cases of misnomer, misdescription, typographical or clerical error and the like. That is to say, cases in which there was no merit in the joined defendant's being able to claim immunity from action nor hardship to him by his inability to rely on a time bar. Accordingly, despite O.36 in general being remedial in its operation, sub-r.(5) (sic) (sub-r.(4)) should, I consider, be strictly construed". His Honour went on to say:

"It (Bridge) never intended to sue Rainbow. That was because it made an error as to who was the carrier. That mistake was not one as to the name of the person it intended to sue. It was a mistake as to the identity of the person sued. That is not a mistake of the kind that should allow Rainbow to be deprived of its time-bar defence. Nor should the rule be construed so as to permit such a deprivation."

If the reasoning of the Full Court in the present case is correct, the enactment of O.36.01 has made little, if any, difference to the pre-1986 position. History of Order 36.01

7. Order 36 was introduced into the Supreme Court Rules in 1986. Before that time, the practice in Victoria was that, where a person was entitled to rely on a defence of the statute of limitations, an amendment to substitute him or her as a party would be permitted only in cases of misnomer, misdescription or clerical error Attorney-General (Enq.) v. Sorati (1969) VR 88, at pp 94-95; Hubbard Assoc. v. The Attorney-General for Victoria (1976) VR 119, at pp 126-128. The decisions in Sorati and Hubbard Assoc. were based on the practice concerning amendment which applied in England for much of this century. In Davies v. Elsby Brothers Ltd. (1961) 1 WLR 170; (1960) 3 All ER 672 the Court of Appeal held that a plaintiff could not be permitted to amend "if that would deprive the defendant of the benefit to which he had become entitled as of right under the Statute of Limitations" and "the amendment involves the addition of a party and not the mere correction of a misnomer" ibid., at p 173; p 674 of ER Devlin L.J. said ibid., at p 176; p 676 of ER:
"I think that the test must be: how would a reasonable
person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: 'Of course it must mean me, but they have got my name wrong,' then there is a case of mere misnomer. If, on the other hand, he would say: 'I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries,' then it seems to me that one is getting beyond the realm of misnomer."

8. In Davies, the plaintiff had issued a writ against 'Elsby Brothers - a firm' for damages for negligence in respect of injuries sustained during the course of his employment. The date of injury was not specified in the writ. Originally, the plaintiff had been employed by the firm of Elsby Brothers, but in 1955 that firm's business was taken over by Elsby Brothers Ltd. The plaintiff's injury occurred in 1956. The Court of Appeal dismissed an appeal against a decision of Elwes J. who had held that the writ could not be amended by striking out the words 'a firm' and adding the word 'Limited' to 'Elsby Brothers' because the plaintiff's claim against the company was barred by a statute of limitations.

9. The principle in Davies was applied in Whittam v. W.J. Daniel and Co. Ltd. (1962) 1 QB 271 where, however, the decision went the other way. There the plaintiff had issued a writ against "W.J. Daniels and Co. (a firm)". Later the Master allowed the amendment of the writ by substituting as defendant "W.J. Daniel and Co. Ltd.". The Court of Appeal upheld the Master's order. Danckwerts L.J. said that the case was distinguishable from Davies "because in the present case there is no other entity to which the description in the writ could be taken to refer" ibid., at p 282.

10. In J. Robertson and Co. Ltd. (In Liq.) v. Ferguson Transformers Pty. Ltd. (1970) 44 ALJR 441 in this Court, Walsh J. applied the test stated by Devlin L.J. in Davies but allowed a plaintiff to amend its writ from "Philips Electrical Pty. Ltd." to "Philips Industries Pty. Ltd." His Honour said ibid., at p 443:
"It has been held, in my opinion correctly, that a
misdescription of a corporate body is capable of being regarded as a mere misnomer and of being corrected by amendment in the same way as the misnomer of a natural person ... It must be acknowledged, however, that when, as in the present case, there were two companies in existence to which the writ could refer, it is more difficult to regard the name of one of them, set out in the writ, as being a misnomer, than it would be if there were no other entity in existence than the one to which the writ was intended to refer. The importance of this consideration has been recognized in the cases but in my opinion it has not been laid down that it is decisive." However, this Court had no rule equivalent to O.36.01.

11. Nevertheless, the principle in Davies was capable of working injustice as the decision in that case demonstrated. Consequently, the power to make amendments was changed in England by the promulgation of O.20, r.5 of the Supreme Court Rules which empowers the Court to allow a plaintiff to amend the writ or a party to amend his or her pleading on such terms as may be just. Sub-rule (2) enables an application for leave to make an amendment to be made "after any relevant period of limitation current at the date of issue of the writ has expired" if the court thinks it is just to do so. Sub-rule (3) provides:

"An amendment to correct the name of a party may be

allowed under paragraph (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 person intending to sue or, as the case may be, intended to be sued."

12. In Mitchell v. Harris Engineering Company Ltd. (1967) 2 QB 703, at p 718 Lord Denning M.R. said:
"Sub-rule (3) has removed the injustice caused by the
decision in Davies v. Elsby Brothers."

13. In Evans Constructions Co. Ltd. v. Charrington and Co. Ltd. (1983) QB 810 the Court of Appeal, by majority, gave O.20, r.5 a wide meaning. In August 1970, Evans Constructions Co. Ltd. ("Evans") had taken a lease of various buildings from Charrington and Co. Ltd. ("Charringtons") for use in connection with its business. Charringtons assigned the reversion to Bass Ltd. ("Bass"), another company in the same commercial group, but continued to act as managing agent for Bass. In 1981, Charringtons, as agent for Bass, wrote to Evans enclosing a notice terminating the tenancy in April 1982. Under the Landlord and Tenant Act 1954 (U.K.), Evans was entitled to apply to the County Court for a new tenancy. The application had to be made not less than two months nor more than four months after the serving of the landlord's notice. The application which Evans made to the County Court contained the error that Charringtons was the other party to the lease and the respondent to the application. Subsequently, Evans sought to join Bass as an additional respondent. The County Court allowed the application under the provisions contained in O.20, r.5. The Court of Appeal dismissed the appeal but decided that Bass should be substituted for Charringtons.

14. On appeal, Donaldson L.J. accepted that it was the intention of the solicitor for Evans to sue the relevant landlord. Accordingly, his Lordship found that there was a genuine mistake of a character to which O.20, r.5(3) could apply. Donaldson L.J. said ibid., at p 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 suing A in the mistaken belief that A is the party who is responsible for the matters complained of and 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."

Waller L.J. who dissented said ibid., at p 816:

"In the present case there was no mistake as to name. Mr Greenwood, Evans' solicitor, in his affidavit frankly stated he thought Charringtons was the landlord. The mistake here was not a mistake as to name; it was a mistake as to identity."

15. In Central Insurance Co. Ltd. v. Seacalf Shipping Corporation (The "Aiolos") (1983) 2 Lloyd's Rep 25 the Court of Appeal refused to extend Evans v. Charrington to a case where the applicants were mistaken as to the nature of the rights which they had as plaintiffs. The Court upheld the refusal of an application to add the names of the buyers of goods to the names of the plaintiffs who were the insurers of the buyers. The insurers had sued the defendants in reliance on their rights of subrogation under their contracts of insurance with the buyers. Oliver L.J. said ibid., at pp 30-31:
"The analogy which Mr. Gruder seeks to draw with the
Charrington case is not, in my judgment a permissible one. No doubt if the fact were that the actual insurer was not the plaintiff, but, say, a subsidiary company there could or might be a true analogy with that case. But the instant case was not a case, as was the Charrington case, of a mistaken belief that the person made party to the proceedings fulfilled a particular description, videlicet that of landlord or insurer, but a case of an erroneous belief that the plaintiff, because he was in fact what he was thought to be, that is, the insurer, had as a result of that certain legal rights which he did not in fact have. There was therefore no error either as to the name or as to the identity of the party which fell to be corrected, but simply an error of law as to the rights possessed by the correctly identified party. Order 20, r.5(3) simply does not extend to this sort of error and the application under this rule must, therefore, fail."

16. Evans v. Charrington was followed by Clarke J. in Lloyd Steel (Aust.) Pty. Ltd. v. Jade Shipping S.A(51). His Honour had to consider an application under Pt 20, r.4 of the Supreme Court Rules (N.S.W.) in circumstances which were not materially different from the circumstances of the present case. Part 20, r.4 relevantly provided:
"(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 (2), (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 nor 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."

Clarke J. said that he found the statement of Donaldson L.J. in Evans v. Charrington "utterly persuasive" ibid., at p 218.

17. Despite the similarity between O.36.01 and O.20 of the English Rules and Pt 20 of the New South Wales Rules, however, the Full Court of the Supreme Court of Victoria in the present case refused to follow Evans v. Charrington and Lloyd Steel and the reasoning which is the basis of those decisions. In Teys Bros. Pty. Ltd. v. AN.L Cargo Operations Pty. Ltd. (1990) 2 Qd R 288, Cooper J. also distinguished Evans v. Charrington and Lloyd Steel and gave O.32 of the Rules of the Supreme Court of Queensland a narrow construction despite its similarity to O.20. Cooper J. said ibid., at p 292:
"The test as to misnomer to be applied in this Court is
that formulated by Devlin LJ. in Davies v. Elsby Brothers Limited (1961) 1 WLR 170, 176". Later his Honour said ibid., at p 294:

"The test as to misnomer adopted by the majority of the Court of Appeal in Evans Limited v. Charrington and Co. Limited is not consistent with the test to be applied in Queensland as laid down in the decisions of the Full Court to which I have earlier referred. Importantly, Donaldson L.J. (as he then was) construed O.20 r.5(3) as 'reflecting and overruling the objection which prevailed in Beardmore Motors Limited v. Birch Bros. (Properties) Limited (1959) Ch 298 and in Davies v. Elsby Bros. Ltd. (1961) 1 WLR 170. Such a view cannot stand with the decisions of this Court subsequent to 1965, when O.32 r.1(3) was introduced into the Rules, continuing to apply Davies v. Elsby Brothers Limited as the authoritative statement of the test relevant to the application of the Rules. The dissenting judgment of Waller LJ. is, in my view, closer to the position which is applied in this State."

18. His Honour's reference to the decisions of the Full Court was a reference to Harstoff v. Allen (1967) Qd R 211, Lynch v. Keddell (1985) 2 Qd R 103 and Lynch v. Keddell (No.2) (1990) 1 Qd R 10. In Harstoff, both parties to the appeal accepted that, in a case where a limitation period had expired, the test to be applied in determining whether an amendment should be applied was that formulated by Devlin LJ. in Davies. In Lynch v. Keddell, the Full Court held that, when an application to join a defendant was made after the expiration of a limitation period, the discretion to order the joinder was to be exercised only in peculiar or special circumstances. However, Lynch v. Keddell was not a case where the plaintiff claimed that she had made "a mistake in the name of a party".

The construction of Order 36.01

19. Having regard to the history of O.20, r.5(3) of the English Rules, it is obvious, as the English Court of Appeal pointed out in Mitchell v. Harris Engineering, that the sub-rule was intended to overcome the decision in cases such as Davies. There is no reason why its Australian counterparts should be given a more restricted meaning. Consequently, in so far as cases in Queensland and the judgment of the Full Court of the Supreme Court of Victoria in the present case suggest that such a rule applies only to misnomers and that Davies is still a relevant decision, they were wrongly decided and should be overruled. The more difficult decision, however, is to determine the scope of such rules and in particular O.36.01(4).

20. 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.

21. Order 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit Holmes v. Permanent Trustee Co. of New South Wales Ltd. (1932) 47 CLR 113, at p 119. 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. In my opinion, Evans v. Charrington and Lloyd Steel were correctly decided.

22. To give the rule the meaning for which Bridge contends does not mean that a person can sue any person and then at a later time substitute another person for the original defendant. The rule imposes three limitations on a person's right to amend. First, there must be a mistake. Secondly, the mistake must be "in the name of a party". Thirdly, the court may only make the order where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his or her claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise: O.36.01(6).
Did Bridge intend to sue the carrier?

23. Paragraph 3 of the statement of claim, which Bridge served with the third party notice, alleged that "Grand Shipping is and at all times material was the owner of the vessel 'Green Sand'". Paragraph 5 alleged that the bill of lading, issued in respect of the 32 containers of tobacco, "was issued on behalf of the authority of the Master of the said ship". Paragraph 6 alleged that Grand owed to Bridge "in relation to the voyage in respect of which the bill was issued a duty" to make the ship seaworthy, to properly man and equip it and to make those parts of the ship carrying the cargo fit and safe for the "reception, carriage and preservation thereof". Paragraph 7 alleged a further or alternative duty "to keep and care for the cargo and containers".

24. My initial reaction to this statement of claim was that, despite its form, Bridge had impliedly intended to sue the carrier of the tobacco but was mistaken as to its name. But further thinking on the matter has caused me to change my mind. The conclusion that Bridge impliedly intended to sue the carrier is 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.

25. If Bridge had intended to sue the carrier and had mistakenly believed that the name of the carrier was Grand, it would follow that Bridge had made a mistake "in the name of a party". In The "Al Tawwab" (1991) 1 Lloyd's Rep 201, at p 207, Lloyd L.J. said:

"In one sense a plaintiff always intends to sue the

person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v. Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v. Charrington it was the current landlord. In Thistle Hotels v. McAlpine(61) the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard(62) it was the cargo-owner or consignee. In all these cases 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."

26. The statement of claim in the present case does not indicate that Bridge sued Grand because it believed that Grand was the carrier but was mistaken as to the name of the carrier. To the contrary, the allegation in par.3 that Grand was "the owner of the vessel" at all material times indicates that Bridge intended to sue Grand because it believed that Grand was the owner of the vessel. The correctness of that conclusion is confirmed by the affidavit of Bridge's solicitor who swore that he "was concerned to preserve Bridge Shipping's rights against the Owner of such vessel".

27. Bridge made no mistake as to description of the party which it wished to sue. It intended to sue the owner and did so. Bridge's mistake was not one of misnomer, clerical error or misdescription. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description. The present case is different, therefore, from Lloyd Steel where Clarke J. accepted that the plaintiff's solicitor had "instituted the proceedings because he believed, as a result of his searches of the (Lloyd's) Register, that the first named defendant in each case was the carrier"(63). (1985) 1 NSWLR, at p 217. The mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not a mistake "in the name of a party".
Order

28. The appeal should be dismissed.

Orders

Appeal dismissed with costs.