Bridge Shipping (Pty) Ltd v Grant Shipping SA

[1990] HCATrans 216

N,r -!.) 1 AUSTRALIA,,~

-~))))'$~'-'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MlS of 1990

B e t w e e n -

BRIDGE SHIPPING (PTY) LTD

Applicant

and

GRANT SHIPPING SA

First Respondent

and

RAINBOW LINE SA

Second Respondent

Application for special leave

to appeal

DAWSON J

TOOHEY J

.MCHUGH J

TRANSCRIPT OF PROCEEDINGS

Bridge 1 7/9/90

AT MELBOURNE ON FRIDAY, 7 SEPTEMBER 1990, AT 11.15 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, QC:  May it please Your Honours, in this

matter I appear with my learned friend,

MR N.J. WILLIAMS, for the applicant. (instructed

by Ebsworth & Ebsworth)

MR P. BUCHANAN, QC: If the Court pleases, I appear with my	learned friend, MR J.R.P. LEWISOHN, for the
respondent. (instructed by Westgarth Middletons)
DAWSON J:	Mr Rayment?

MR RAYMENT:  May it please Your Honours. Your Honours, I

hand up three bundles of cases to which we gave the

Court a reference several days ago.

Your Honours, may I start with the provisions of the English rules which historically were the

first rules designed to attack the problem.

TOOHEY J: Just before you do that, Mr Rayment, can we take

it that the application is made solely in terms of

rule 36.01(4)?

MR RAYMENT:	Yes, Your Honour.
TOOHEY J:	We are not to concern ourselves with any of the

other rules of the Supreme Court of New South

Wales?

MR RAYMENT:  No, Your Honour. Your Honours, the problem

which the English rules were designed to deal with
was, for example, the problem which arose in

Davies v Elsby Brothers Ltd, (1961) 1 WLR 170,

which is the first case in the bundle I have just
handed up. There a plaintiff sued Elsby Brothers,

which was the name of a firm, and wished to

substitute Elsby Brothers Ltd, the name of the

company which took over the business of the firm

which was the relevant employer at the time the

cause of action arose.

As can be seen, for example, by looking at the

first few lines of Lord Justice Devlin's judgment

in that case about three pages before the end of

it, the opening words of His Lordship's judgment,

the application failed because the effect of the

order which was sought in the case would have been

to substitute a new party. It was said not to be a

case of a mere misnomer but to involve the

substitution of a new party which the inherent

powers of the court did not permit.

Your Honours, in all of the States of

Australia there was jurisdiction under the inherent

power, we would submit, to correct a misnomer. It was no doubt subject to the same limitation as was

perceived in Davies v Elsby Brothers, namely, that

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you could not use such a rule as that to bring a

new party into the proceeding. So, if you

misdescribe somebody by a misnomer, the real party

that you were suing was the person to whose name

you desired to amend, then there was jurisdiction

to deal with it but if the case was one of bringing

in a new party, then there was no jurisdiction to

add the new party and that was important if the

statute of limitation period had expired.

So historically, the first set of rules passed

in either the United Kingdom or Australia to deal

with the problem were the English rules, and

they are the very last rules in that bundle of

documents I have just handed up. I am told it is

document No 10 in the bundle that I have just

handed up, if Your Honours please. Your Honours,

Order 20 rule 5 in the United Kingdom as from 1965 has provided as Your Honours there see, subrule (3) which was a subrule of the general power to make an amendment - - -

McHUGH J: What was the rule, Mr Rayment?

MR RAYMENT: Order 20 rule 5 and, in particular,

subrules (3) to (5).

McHUGH J: And you said document 10?

MR RAYMENT:  I am told so, Your Honour. It is a single

sheet.

McHUGH J:  I have got two marked 10. I have got it now.

MR RAYMENT: Subrule (3) said this:

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 correct 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.

And then subrule (4) specifically dealt with an

alteration in the capacity of parties sued if the

new capacity was one in existence at the date of

the writ. And subrule (5) said:

An amendment may be allowed under

paragraph (2) notwithstanding that the effect

of the amendment will be to add or substitute

a new cause of action if the new cause of

action arises out of the same facts.

Bridge 3 7/9/90

Now, Your Honours, the effect of the rules in

England was summarized, we submit correctly, by

Lord Denning in a case of Mitchell v Harris

Engineering Co Ltd at pages -

McHUGH J:	Mr Rayment, it really seems a strange approach to the construction of a rule of the Victorian Supreme
Court to be taken to an English rule, which is
quite different in terms, and to cases on it. The
critical question is what does the Victorian rule
mean.
MR RAYMENT:	Yes, I know, but relevant words have been borrowed, we submit, from the English rules.

DAWSON J: Well, you say the difference in wording is

crucial, do you not?

MR RAYMENT:	No.
DAWSON J:	You do not?
MR RAYMENT:	The relationship, we submit, if I can just go

to the Victorian rules now, the relationship

between the Victorian rules and the English rules

is this: if one looks at Order 36, subrule (4) is,

we submit, to the same effect as rule 5(3) except

that it is more at large - - -

DAWSON J: Same effect as rule - - -?

MR RAYMENT:  - - - as Order 20 rule 5(3) in the United

Kingdom except that it is more at large.

TOOHEY J: It is more - - -?

MR RAYMENT:  - - - at large. The discretion is more

uncontrolled in Victoria than it is in England in

that all it requires is that 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. That does not limit - - -

TOOHEY J:  I would have thought it was considerably wider in

its operation than the English rule.

MR RAYMENT:  Yes, we submit so. we submit the limitations

which one sees in Order 20 rule 5(3) are simply not

present in that subrule. Your Honours will notice

the provisions of Order 36(6) which specifically

refers to prejudice and says that:

The Court may, notwithstanding the expiration

of a relevant limitation period after the day

a proceeding is commenced, make an order under

subrule (1) where it is satisfied that any

other party to the proceeding would not by

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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.

And then the next subrule makes it clear that that

extends to the person sought to be added.

So, if he can show that by reason of the

passage of time he is prejudiced in his defence of

the action by being joined, then there will be an

answer to the claim for an amendment. That is

left - - -

DAWSON J: One thing you could say about the two is that the

Victorian rule does not, in terms anyway, refer to

a mistaken identity whereas that is contemplated by

the English rule. It only talks about a mistake in

name.

MR RAYMENT: That is so. The test in England is whether the

amendment is to correct the name of the party but

it goes on to say that only in certain

circumstances may such an amendment be allowed. In

Victoria the question is: is there a mistake in

the name of the party? In each case, it is whether

or not the effect of the order is to substitute

another person as a party and in Victoria the

matter of prejudice is made a specific bar. It is

presumably left as a matter of discretion in the

United Kingdom.

McHUGH J: But your difficulty in this case is this, is it

not, that the rule requires a mistake in the name of the party. There is no mistake in the name of

the party in your case.	You have just got the
party wrong.	You made a mistake as to the party,

not the party's name.

MR RAYMENT:  One of the documents we have handed up is the

third party notice. What actually happened here

was this:  my client joined by way of third party

proceedings in this State a person thought to be

the carrier who issued a bill of lading. There was

a bill of lading which named the vessel, the found that the ship owner was the person named in
"Green Sand", did not identify who the carrier was.

the third party notice but the pleading makes it
quite plain that what was sought to be done was to
sue the carrier who had issued the bill of lading.

Now, the fact was that there was a bare boat

charter in favour of the person sought to be added.

So that the person who had issued the bill of

lading who was the carrier was the demised

charterer. So, in other words - - -

Bridge 5 7/9/90

DAWSON J:  The mistake was as to the capacity in which the

person was acting, if I could put it that way.

MR RAYMENT:  We would put it this way: the mistake was

whether the person sued fulfilled the description

set out in the third party notice of the person

sought to be made liable, in other words, was he

the carrier who had issued the bill of lading or

was he not?

DAWSON J: Well, he was not.

MR RAYMENT: That is right. Now, Your Honour - - -

DAWSON J: But you thought he was.

MR RAYMENT:  We thought that the name of the carrier was the

person whom we sued.

DAWSON J: Not the name. You thought that actual entity was

the carrier.

MR RAYMENT:  Was the carrier. We made a mistake of fact as

to whether he fulfilled the description which we

specified in the third party notice.

DAWSON J: But not a mistake as to name?

MR RAYMENT: Well, Your Honours, we would submit, when one

looks at the history of this rule, that is a

mistake as to the name, and it has been so

held - - -

DAWSON J: Well, you intended to join that person - - -?

MR RAYMENT:  We intended to join - - -

DAWSON J: - - - who is called by that name. Well, where is

the mistake as to name?

MR RAYMENT:  We would submit that the discrimin which

appears in the English cases for whether or not

there will be a mistake in the name of a party is

the very matter that I just put, namely, whether

the person sued fulfils the description which the

plaintiff intended to be the description of -the

person whom he was suing. In other words, take the

case of Charrington which is referred to in the

judgment below, there the English Court of Appeal

construed Order 20 rule 5 so as to permit to be

joined to an action the true landlord. The

plaintiff had thought he was suing his landlord.

The person he actually sued was his former landlord

who, unbeknown to the plaintiff, had assigned the
reversion to another person who was the true

landlord. So, the capacity, to use Your Honour's

language or, we would say, the description of the

Bridge 6 7/9/90

defendant desired to be sued was that of the

landlord of the plaintiff.

The contrast to that situation being a case

where, for example, as arose in the "Aiolos" - one

of the other cases in that bundle - someone makes a

legal mistake as to the category of person who is

suing or whom he desires to sue. In the "Aiolos"

what had happened relevantly was that an insurer who had paid out claims conceived that he had in

his own name a right of action against the person

liable to his insured so he sued as insurer and

then sought to a.mend later to name the insured as

additional plaintiffs after the expiry of the

relevant statute. What was said in the

English Court of Appeal about that matter was that

it was quite different from the case of Charrington

because the description of "party" that the
plaintiff desired to belong to was the correctly

described "the insurer" as the plaintiff. He had,

in other words, made a legal mistake about the

description which was appropriate as the name of

the plaintiff in the case.

TOOHEY J: But that is not really what you are saying here,

is it?

MR RAYMENT:  Yes, Your Honour.

TOOHEY J: Take a quite simple illustration: someone is run

down by a motor vehicle which has two persons

sitting in the front seat. There is some

uncertainty as to who was the driver and the

plaintiff sues X on the basis that X was the

driver .. It turns out that once the defence has

been filed that there is a denial that X was the

driver and an assertion that Y was the driver. The

plaintiff then seeks to join Y or to substitute Y

for x. Now, is that the sort of case that the

Victorian rule is concerned with?

MR RAYMENT:  We would submit that it is precisely the kind

of case. We would submit that the primary question

arising when that occurred would be the question of

prejudice under subrule (6).

TOOHEY J: Yes, but leave that to one side. Does it fall

within the substantive rule?

MR RAYMENT:	Yes, because he has correctly described the class of person whom he desires to sue and he had
made a mistake of fact as to whether X or Y falls
within that description.

TOOHEY J: Well, basically, that is the argument, is it not?

Bridge 7/9/90

MR RAYMENT: That is the basic argument. Could I show

Your Honours the way in which it is put in The

"Aiolos" which is the ninth of the cases in that

bundle of cases. There is a fairly short statement

of Lord Justice Oliver of the way in which the
English rule is applied. It is to be found,

Your Honours, at the foot of page 30, right-hand column. This was the case in which the insurer had

sought to sue in his own name for wrongs done to

his insured. Lord Justice Oliver says:

In my judgment the learned Judge was

quite right in refusing leave to amend under

this rule. 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 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.

Your Honours, the history, if I may say that,

of the English rule and what it was designed to

achieve is shortly described by Lord Denning in

Mitchell v Harris Engineering, which is the fifth

case in that volume. His Lordship makes it plain

that one of the purposes of the rule was to

overcome the result in the Elsby case. At

page 685, Lord Denning summarizes the case law

background:

Prior to the new rule -

which was a 1965 rule, Your Honours -

Bridge 8 7/9/90

there was a long line of authority which said

that, once a person had acquired the benefit

of a statute of limitations, he was entitled

to insist on retaining that benefit: and,

what is more, the court would not deprive him

of that benefit by allowing an amendment of

the writ or of the pleadings.

And he gives then Elsby Brothers as the first

example where the application was refused. And he

next refers to a case of a person who sued in the

wrong capacity as administratrix and was not

allowed to change the capacity: Hilton v Sutton

Steam Laundry. Then he refers to Weldon v Neal

where an amendment was not allowed to substitute a
new cause of action, and other cases. Half-way

down page 686, His Lordship says this:

In my opinion, whenever a writ has been

issued within the permitted time, but is found

to be defective, the defendant has no right to

have it remain defective. The court can

permit the defect to be cured by amendment:

and whether it should do so depends on the

practice of the court. It is a matter of

practice and procedure. As such it can be

altered by the rule committee under

s. 99(l)(a) of the Act of 1925. That is what

has been done by R.S.C., Ord. 20, r. 5(2),

(3), (4) and (5). Rule 5(3) has removed the

injustice caused by the decision in Davies v

Elsby Brothers Ltd.

The next rule has removed the injustice caused by

the decision as to capacity. So, it was important

remedial legislation, in our respectful submission.

Now, the lead having been given in the United

Kingdom, the rule was very closely copied in

Australia in every State except this State at

various points of time from 1965 onwards.	It came
in in New South Wales in 1970.	Mr Justice Clarke,
in another case included in that volume which

Your Honours would have seen referred to in the

Full Court judgment, applied the Charrington case

and applied the dictum of Lord Justice Oliver which I just referred to in facts exactly the same as the
facts of the present case to allow the plaintiff to

amend to name the true carrier as the defendant.

DAWSON J: we need not, for the moment, trouble you further,

Mr Rayment. We will call on Dr Buchanan.

MR BUCHANAN:  Your Honours, this is not a case where, in the

first place, as is put forward in the material in
support of the application, we would say, the Court

is required to resolve a conflict between different

Bridge 9 7/9/90

decisions of courts in different States and the

fact that most of the other States of Australia

have adopted a rule closely copied from that in

England highlights the distinction that the

Victorian rule alone stands concerned still with

the law as it has been for some time in the State,

that is, the prohibition on the substitution of one

party for another where that is more than the product of misnomer or mistake in name alone.

In our submission, there are significant

differences between the English rule and its
counterparts in New South Wales and other States on

the one hand, and the Victorian rule on the other.

In the first place, the English rule and its

counterparts, in express terms, contemplates that

its operation may affect rights which have accrued

as a consequence of the expiration of a limitation

period. And, secondly, the New South Wales rule,

to take one by way of example - and the others are

in the same terms - contains criteria which limit

and determine when an amendment of the name of a

party can be made which has the result of affecting
rights under the limitation legislation or

limitations arising otherwise.

In New South Wales, the court has to be

satisfied firstly that the mistake was not

misleading and secondly, and perhaps more

importantly, that it was not such as to cause doubt

as to the identity of the person intended to be

sued. The Victorian rule has no such criteria and

accordingly what is necessary in order to found an

application successfully under Order 36(4) in

Victoria is that in the first place there should be

a mistake as to name. The rule does not go on, as

the New South Wales and English rules do, to then

deal with what arises or what can arise as a

consequence of a mistake as to identity and, with

respect, as Your Honours have pointed out, in this

case there was no mistake as to the name of the
defendant here. The mistake arose as a consequence

of a misapprehension of the role which this

properly named person played in the wrong of which

the plaintiff complains.

TOOHEY J:  Dr Buchanan, it is true there are differences

between the Victorian rule and the English rule but

certainly on one view it might be thought that the

Victorian rule is wider in its operation and not

constricted by the requirements of subrule (3) of
the English rule except in so far as subrule (6) of
the Victorian rule brings in questions of prejudice

in a particular situation but that really arises

once the applicant has brought himself within

subrule (4).

Bridge 10 7/9/90

MR BUCHANAN: Well, one answer, Your Honour, would be that,

in fact, the Victorian rule is in its terms more

restrictive because it only operates where a

mistake in the name of a party has been made. Now,

although similar words introduce the rules in other
jurisdictions, the rules then continue to indicate

that mistake in name is not the sole and only

justification for the exercise of jurisdiction.

The rule also encompasses a change or a mistake as

to identity in terms of -

McHUGH J: But does not the second limb of subrule (4)

indicate that identity may be at issue because it

says:

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.

MR BUCHANAN:	Your Honour, with respect, that really does no more than take up what the Full Court said in that
generally speaking a misnomer will not involve the existence of any other person with the wrong name, that is the mistake in name, but that is not to
say, said the Full Court, that misnomer will not or is not capable of embracing a case where there are two persons with the name of the person in the
proceeding and some other person with a slightly
different name although the court said that where there is another person with that name it is often
more difficult to find that there has been a
mistake as to name and not a mistake as to identity
and we - - -

McHUGH J: Well, let me give you an illustration. Supposing

there are two brothers, Tom Smith and Jack Smith,

other fellow was Tom Smith. So, then I want to

and Tom Smith assaults me and I want to sue him but

change their names around.	Now, by doing that I am
substituting another party, the person that is

served, well let us say it was Tom Smith when, in

fact, I intended to sue John Smith. Surely, that

rule would apply in that sort of illustration.

MR BUCHANAN: Yes, it might well, Your Honour, because in

that case - provided the genesis of the mistake was

really a mistake as to his name and not some other

mistake, that is, they saw one brother and thought

it was John when it was really Tom. As long as the

mistake was as to name, yes, it would, Your Honour,

and that would -

McHUGH J: But is not the rationale "because I want to sue

the person who assaulted me"? And, in this

particular case, the party Mr Rayment's client

Bridge 11 7/9/90

wanted to sue was the person who was the principal

of the master of this ship.

MR BUCHANAN: That is so, Your Honour, but his name was not

"Master of the Ship", his name was the one which he

had which the plaintiff got right.

McHUGH J: But he thought that the principal of the master

of the ship was the owner but as it turns out there

was a bare boat charter but he wanted to sue

whoever was the principal or the person who signed

the bill of lading.

MR BUCHANAN: That is right, but it is unlike the mistake of

the man who sues Tom Smith because he mistakenly mistakes - got mixed up with his similarly named

brother. That is a case where the unfortunate

result that you have sued a person with the wrong

name may properly be characterized as a mistake as

to name. We would say on the contrary here, there

is simply no mistake as to name. The name had

nothing to do with it and, indeed - - -

DAWSON J: Well, a true analogy with the example put to you

by Justice McHugh is if he thought that it was A

who assaulted him and sued him but, in fact, it was

Band he wanted to substitute B.

MR BUCHANAN:  Yes. Well, that is so but the question is and

we would say that the jurisdiction which is

conferred by the rule only operates, only arises,

the Court has no power unless the mistake which has

been made can be properly characterized as a

mistake as to name and we would say - - -

TOOHEY J:  You may well be right but certainly the

authorities are not in a very happy state, are

they, as to the operation of a rule such as this?

MR BUCHANAN: Well, the authorities, we would say, are in a

happy state in that Victoria, with its unique rule,
has its own Full Court decision building upon a

long line of past decisions whereas the other

States with their different rule have their own decisions. If there is a problem with that, it

really is a problem, we would have thought, between

Queensland and New South Wales where there are
Queensland decisions on a rule rather like the

New South Wales one which are to the opposite

effect of the decision of Mr Justice Clarke in

New South Wales.

McHUGH J: But if in principle but not in terms all the

rules are really directed in the same matter, then

the authorities are in an unsatisfactory state, are

they not?

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MR BUCHANAN: That, with respect, is perhaps a critical

question and we would say that having regard to the
long line of authority in this State and, indeed,

in others, of the Davies v Elsby type here where it

had to be a misnomer otherwise there was no
jurisdiction to correct it, was not a long
tradition which was upset by the terms in which

this new rule was introduced. It was after all not

an amendment brought in unlike the ones in other

jurisdictions by itself to deal with this

particular situation, it was part of a tying up of

the rules of the Supreme Court of Victoria as a

whole and we would submit that the terms in which

it was done, departing - - -

DAWSON J: What you are saying: it is a consolidation. It

is more than that, is it not?

MR BUCHANAN: It is a consolidation, yes.

DAWSON J: It is quite a change in wording, is it not?

MR BUCHANAN:  It is a change in wording but it is very like,

for example, the old Order 16 in Victoria

which - - -

DAWSON J: Yes, but they are crucial changes and if you

disapprove or dislike the approach in Elsby as

Lord Denning did, would not this be an opportunity

to "achieve justice" as he puts it?

MR BUCHANAN: Only if one thought that that was the

intention of the rule makers.

DAWSON J: Well, there are indications that it is: the

second limb of subrule (4).

MR BUCHANAN: Well, we would say that is no more than an

indication or, rather, a confirmation of a position

that had always existed that - - -

DAWSON J~ It covers the example given by Justice McHugh but

not the restatement of that example by me.

MR BUCHANAN:  No, that is right. It is the rare case,

naturally, of the misnomer where it results in a

substitution but it is still a misnomer. We would

submit that the way in which this rule is expressed

in stark contrast to the way in which the rules in

other jurisdictions are being expressed, headed as

they are with limitation period references and

containing criteria which prevent the rule applying

willy-nilly to abrogate the rules relating to

limitations is a clear indication from the judges

who made this rule and Parliament that approved it

that it was not intended to upset that long line of

authority of which Davies v Elsby is an example.

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DAWSON J:  Why should you construe a rule which is obviously

designed to eradicate technicalities to get to the

heart of the matter where it is proper to do so?

Why should we not construe it liberally?

MR BUCHANAN:  Certainly Your Honour should where what is at

issue is truly a technicality but the limitations

period, and particularly a limitations period

imposed by the Hague rules which does not merely

bar the remedy but extinguishes the right

altogether, is more, we would have thought, than a

technicality. Can we hand to Your Honours copies

of those parts of the rules in Victoria - - -

DAWSON J: Well, what you are saying here is that really you

are now interfering with the contractual rights of

the parties.

MR BUCHANAN: That is so but that by itself is - it is not

the fact that they are contractual perhaps rather
than imposed by statute which gives them any

greater significance. The fact is that they are

substantive rights which are acquired as a

consequence of - - -

DAWSON J: They are imposed by the parties on themselves.

MR BUCHANAN:  They are and it does result in the substantial

change in the relationships, one to the other, of

the parties and not merely a question of

technicality.

DAWSON J:	You do not contend, do you, that the Hague rules limitation is not a limitation period within the
meaning of the rule?
MR BUCHANAN:	No.
TOOHEY J:	I rather took the Full Court to be saying,

Dr Buchanan, that these differences in language so

far as the recent English decisions and the recent

New South Wales decision are concerned were not

crucial.

MR BUCHANAN:  That is so in the sense that the judgment does

express a difference of opinion with courts in

those other jurisdictions but nevertheless then

goes on to point to differences between the forms

the rule takes and rely heavily upon those

differences, most importantly, the difference that
in Victoria there is no reference to identity and

the lack of any test or criteria laid down by the

legislation to enable a change was one which the
court here thought was of grave importance. So,

although the court expressed a different view,

nevertheless, the decision ultimately is to be

justified by the terms of the Victorian rule alone.

Bridge 14 7/9/90

What I have handed to Your Honours is what we

say is that part of the Victorian rules which was

intended to deal with the substitution of new

parties and, in particular, we rely upon

subrule 9.06 which deals with the addition, removal

and substitution of a party and provides that at

any stage that may occur and then goes on in

subrule 9.11(3) to provide that:

Where an order is made under Rule 9.06, adding or substituting a person as defendant -

(a) the proceeding against the new defendant

commences upon the amendment of the filed

originating process in accordance with

paragraph (1) or (2).

So what the judges who made the rules had in mind was that in general terms when you are substituting

one party for another, Order 9 is the appropriate

fountain of jurisdiction and that takes care of, by

express provision, for the limitations defence

which has already accrued and accordingly, we would

say, it is clear that Order 36 is limited to and

can properly be limited to, without placing

technicality above substance, the cases which it

describes in terms, that is, cases of mistake in

name.

TOOHEY J:  I see, it does include substitution as well as

addition and removal?

DAWSON J: But the crucial difference is in one case it is

just a mere substitution, in the other it is

because of a mistake.

MR BUCHANANa Yes.

DAWSON J: You say a mistake in name but it is because of a

mistake; the mistake is the important thing.

MR BUCHANANa Yes, because that is what the rule says. If

because Order 36 contains no criteria for limiting	the mistake is at large - and it would be at large
it, questions such as the other rules do - then limitation periods in Victoria become very much a thing of chance. The mistake which leads to the
wrong person being named may have all sorts of
genesis and may arise in a large range of
circumstances and if the court is truly at large,
it would really have a far more sweeping effect, we would say, by a side wind really, a far more
sweeping effect as a reform of the substantive law
of this State than any of the rules dealing with
misnomer and changes and substitutions of new
parties in other jurisdictions.

Bridge 15 7/9/90

Can we also point out, Your Honours, that

Order 9 which expressly deals with the substitution

of one party for another contains procedural
provisions that you would expect where a new party

has been joined who, for the first time, is to take

a part in the proceedings such as provisions as to

service, entry of appearance and the amendment of the proceedings themselves to reflect the change. None of those sorts of provisions, however, are

found in Order 36 and we would say that that is

because Order 36 was not meant to be the vehicle

for changes or substitutions just because the cause

of the substitution is a mistake.

DAWSON J: Why not? Why can you not say, "Well, where there

is a mistake, the party who made the mistake

should not be prejudiced if the other side can be

adequately dealt with by costs or an adjournment or

some other order"? What is wrong with that?

MR BUCHANAN:  In the case where the person has already

accrued defence which is a complete bar to the

action, he cannot be so compensated.

McHUGH J:  That all goes to the exercise of discretion. against what you have just put is the fact that But

subrule (4) itself recognizes that a new party may

be substituted.

MR BUCHANAN:  Yes, Your Honour, and those, what we would

say, are limited case where nevertheless the

mistake giving rise to it all can still be properly

characterized as a mistake in name.

McHUGH J: Well, I appreciate that but the point I was

putting to you is that notwithstanding the absence

of procedural provisions, rule 36(4) does

contemplate that you may have a completely

different party.

MR BUCHANAN: Yes, Your Honour, and it would be necessary, I

suppose, to make directions of the type that

Order 9 spells out as a matter of course.

MCHUGH J: Yes.

MR BUCHANAN:  And, indeed, there would be nothing to stop

the court doing it. The only use we make of the

fact that those sorts of provisions are not found

in Order 36 is to support the submission that that

was not the primary - the sort of case with which

the order was concerned and it was contemplated

that that would be very much the exception just as

it used to be and has been where misnomer, although

properly called a misnomer, did lead on occasions or could lead on occasions to the substitution of

one new party for another one.

Bridge 16 7/9/90

TOOHEY J: All this seems to me, Dr Buchanan, to amount to a

situation in which the precise scope and operation

of the rule is a matter for substantial debate.

MR BUCHANAN:  That is so. What we say to that is only that

it is a substantial debate, perhaps, unless one is

bound by the decision of the Full Court of this

State and it is not really a debate which concerns

the courts of any other State.

TOOHEY J: Put that to one side.

DAWSON J: That is a fairly parochial attitude, is it not,

Dr Buchanan?

McHUGH J: And, in addition, Mr Justice Crockett preferred

the dissenting judgment of Lord Justice Waller in

Evans as well, really. I mean, he did

choose, in a sense between the competing judgments.

MR BUCHANAN:	He did, Your Honour, but he need not have.
McHUGH J:	I know he need not have.
MR BUCHANAN:	And one would not have thought that his choice

would affect judges in other States in terms of
dealing with their own rules which are on all fours

with the English rule.

McHUGH J: But it does indicate that he really did not see a

great deal of difference between the various sets

of rules.

MR BUCHANAN:  His Honour might not have in that sense but he

did go on in later parts of his judgment to make

much of and rely heavily upon differences that did,

in fact, exist. In some ways his remarks might be

characterized as gratuitous in the sense that they

really did not affect the substantial reasoning

which really applies to a Victorian rule which is

unique.

DAWSON J:

I think we have grasped the problem, Dr Buchanan.

Is there anything else you want to add?

MR BUCHANAN:	No.
DAWSON J:	We need not trouble you further, Mr Rayment.

Special leave will be granted.

AT 12.01 AM THE MATTER WAS ADJOURNED SINE DIE

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