Carter v O'Connell

[2009] WASC 245

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CARTER -v- O'CONNELL [2009] WASC 245

CORAM:   LE MIERE J

HEARD:   9 APRIL 2009

DELIVERED          :   3 SEPTEMBER 2009

FILE NO/S:   CIV 1124 of 2008

BETWEEN:   ANDREW LEONARD CARTER

Plaintiff

AND

RONAN O'CONNELL
First Defendant

WEST AUSTRALIAN NEWSPAPERS HOLDINGS LTD (ACN 053 480 845)
Second Defendant

PHILLIP O'REILLY
Third Defendant

WEST AUSTRALIAN TURF CLUB
Fourth Defendant

RACING AND WAGERING WESTERN AUSTRALIA
Fifth Defendant

Catchwords:

Practice and procedure - Application to amend the name of a party - Whether leave should be granted to amend writ - Whether there was a genuine mistake in the name of the party - Whether mistake was misleading - O 21 r 5(3) Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Western Australian Turf Club Act 1982 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J P MacLaurin

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     Mr R W Richardson

Fourth Defendant          :     No appearance

Fifth Defendant            :     Mr C S Gough

Solicitors:

Plaintiff:     Maxim Litigation Consultants

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     Solomon Brothers

Fourth Defendant          :     No appearance

Fifth Defendant            :     Minter Ellison

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

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

Gregory Ronald Rushton & Andrew Cairns v The West Australian Turf Club [2000] WAIR Comm 202

R v R L and J F [2008] EWCA Crim 1970

Re McJannet; Ex Parte Minister for Employment, Training and Industrial Relations (1995) 184 CLR 620

Western Australian Turf Club v Federal Commissioner of Taxation (1978) 139 CLR 288

LE MIERE J: 

Introduction

1. The second defendant published in a column in the 19 February 2007 edition of The West Australian newspaper an article that the plaintiff says is defamatory of him.  The article appeared in a column edited by the first defendant.  The article refers to events that allegedly occurred at Belmont Park racecourse.

2. On 12 February 2008 the plaintiff commenced this action.  The plaintiff's indorsement of claim on the writ says that his claim is for damages for defamation in respect of defamatory comments published by the first and second defendants in the article and that the article involved a republication of the third defendant's defamatory comments of and concerning the plaintiff.  The indorsement further says that the third defendant made the defamatory comments in his role as an employee, officer or agent of the fourth defendant and/or the fifth defendant.

3. The fourth defendant is described on the writ as 'West Australian Turf Club'.  The plaintiff now applies to amend the writ by amending the name of the fourth defendant to 'Edward Van Heemst in his capacity as Chairman of and Nominal Defendant for The Western Australian Turf Club'.  It is common ground that Mr Van Heemst is the Chairman of The Western Australian Turf Club.

4. The application is opposed by the third defendant.  No appearance has been entered for the fourth defendant and no one appeared, or purported to appear, for the fourth defendant, The Western Australian Turf Club or Mr Van Heemst on the hearing of this application.  The first, second and fifth defendants took no part, or no active part, in the hearing of this application.

The Western Australian Turf Club

1. The Western Australian Turf Club Act 1892 (WA) (the Act) recognises, but does not create, The Western Australian Turf Club which I will sometimes refer to as the club. There is no evidence of the origin, or original constitution, of the club but the preamble to the Act discloses that by 1877 it had trustees who held certain land demised to them as trustees for the club. In Western Australian Turf Club v Federal Commissioner of Taxation (1978) 139 CLR 288 Aickin J said that the original constitution of the club may properly be said to have been superseded by the Act and that the Act 'reconstituted' the club but without destroying the continuity of its identity (306).

2. The long title of the Act is:

   An Act to enable the members of 'The Western Australian Turf Club' to sue and be sued in the name of the chairman for the time being of the committee of the said club and for other purposes.

   Section 3 provides that all actions to be commenced by or on behalf of the club or wherein the club is in anyway concerned shall be commenced in the name of the chairman as the nominal plaintiff for and on behalf of the club.  Section 3 further provides that all actions to be commenced against the club or any of its members as such shall be commenced against the chairman as the nominal defendant for and on behalf of the club or members.  Section 2 defines the term 'club' to mean 'The Western Australian Turf Club'.

3. Section 6 provides that judgment obtained against the chairman on behalf of the club shall be enforced against the property of the club with an exception not presently relevant.  Section 7 vested the property of the club and all property held in trust for it in the chairman 'in trust for the club and in the like manner as if such chairman and his respective successors in such office were in law a corporation sole'.  The Act makes provision for lands to be vested in and maintained by the chairman and committee.

4. Section 42 of the Act provides that nothing in the Act shall extend or be deemed to incorporate the club or the members.

Events leading to issue of writ

1. On 14 February 2007 the third defendant interviewed the plaintiff in relation to events that had allegedly occurred at Belmont Park Racecourse.  The plaintiff believed the third defendant was an investigator for the club or the fifth defendant.  The plaintiff instructed solicitors to act for him in respect to the racing inquiry being conducted by the third defendant.

2. On 19 February 2007 the article complained of was published in The West Australian newspaper.  The plaintiff's solicitors made a request to the club for certain information relating to the inquiry.  In response Solomon Brothers, solicitors, replied stating, amongst other things:  'We act for the Western Australian Turf Club'.  The plaintiff was subsequently informed that the racing inquiry was not being pursued.

3. On 15 March 2007 the plaintiff's solicitors wrote to Solomon Brothers, as solicitors for the club, requesting, amongst other things, confirmation that the club had lifted its ban on the plaintiff.

4. In his affidavit sworn 29 January 2009 the plaintiff says that in or about late October 2007 he resolved to pursue the question of a possible defamation claim against, amongst others, the third defendant and entities who employed the third defendant, or who the third defendant was an agent of.  He says:

   I knew of and thought of the fourth defendant (through my previous dealings with them, for instance, as a racing journalist) as the West Australian Turf Club [18].

5. On or about 6 January 2008 the plaintiff retained solicitors in relation to a possible defamation action in relation to the newspaper publication.  In January 2008 the plaintiff became aware that actions for defamation against the proposed defendants may become time barred on or before 19 February 2008.  To preserve his position he instructed his solicitors to commence proceedings against, amongst others, the entities who employed the third defendant and or for whom he acted as agent being what the plaintiff understood to be, in general terms, and as a general description, 'The West Australian Turf Club and Racing and Wagering WA'.

6. John Papamatheos is a solicitor employed by the plaintiff's solicitors.  He commenced to prepare the writ.  In his affidavit sworn 27 January 2009 Mr Papamatheos says that he prepared a writ of summons to commence proceedings against, amongst others, the entity or entities that employed the third defendant or for whom the third defendant acted as agent.  Mr Papamatheos says:

   The plaintiff did not have express input into the precise name of the entities that ultimately appeared in the writ of summons that appeared as the second and fourth defendants. It was my task to find the names of the relevant defendants fitting the descriptions above and the Western Australian Turf Club [7].

   Mr Papamatheos determined that the club existed under the Act.  He did not notice s 3 of the Act and proceeded on the basis that the club was a statutory authority or corporation sole and therefore could be named as 'West Australian Turf Club' in the writ of summons.  Mr Papamatheos conducted a search on for 'West Australian Turf Club', 'WA Turf Club' and 'Western Australian Turf Club' to determine if either of those names properly describe 'the turf club'.  He chose 'West Australian Turf Club' because the most recent case he accessed, Gregory Ronald Rushton & Andrew Cairns v The West Australian Turf Club [2000] WAIR Comm 202 described the turf club in that way.

7. The plaintiff saw the draft writ of summons before it was filed.  He says that at all times he intended that his proceedings would be against the persons and entities described in his affidavit of 29 January 2009.  He says that he understood and assumed the description of the fourth defendant on the writ was the proper way of describing The West Australian Turf Club, the employer of the third defendant.  The writ was issued on 12 February 2008.  The fourth defendant is described as 'West Australian Turf Club'.

8. On 18 February 2008 the plaintiff instructed his solicitors to send concerns notices to the defendants to his writ.  The plaintiff's solicitors sent a concerns notice addressed to 'The West Australian Turf Club'.  The notice referred to the third defendant as 'your employee'.  Solomon Brothers responded by letter of 20 February 2008 in which they stated that they acted for 'The Western Australian Turf Club' and said that they were instructed to accept service of the writ.

9. On 19 December 2008 the plaintiff's solicitors wrote to Solomon Brothers enclosing, by way of service upon the third defendant and 'the Western Australian Turf Club', an amended writ of summons.  On 23 December 2008 Solomon Brothers responded stating, amongst other things:

   We advise that we cannot accept service on behalf of the 'West Australian Turf Club', because it is not a legal entity and is therefore is incapable of being sued.

10. There was then correspondence between the plaintiff's solicitors and Solomon Brothers.  In a letter of 15 January 2008 Solomon Brothers said:

    As you would be aware [the Act] defines the 'club' as 'The Western Australian Turf Club'.  The term 'club' (meaning 'The Western Australian Turf Club') is used in various provisions of [the Act].  Further, the term 'The Western Australian Turf Club' is generally used to describe the organisation contemplated by [the Act].

    It is in this sense that we have stated that we act for The Western Australian Turf Club.  We act for the organisation contemplated by [the Act].

    However, this does not change the fact that, whilst the organisation contemplated by [the Act] is known as 'The Western Australian Turf Club', this organisation does not exist as a legal entity.  Pursuant to s 3 of [the Act], it is the chairman of the committee of The Western Australian Turf Club who can sue and be sued.

    We first wrote to you on 20 February 2008 advising that we had instructions to accept service on behalf of our client, which we identified as The Western Australian Turf Club. At this time, we had not sighted your client's writ of summons. Further, by this time, the limitation period imposed by s 15 of the Limitations Act 2005 had expired.

Order 21 rule 5

1. Order 21 r 5(1) of the Rules of the Supreme Court 1971 (WA) provides that, subject to certain other rules, the court 'may at any stage of the proceedings allow the plaintiff to amend his writ'. Rule 5(2) provides that where an application for leave to make the amendment mentioned in [3], [4] or [5] is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave if it thinks it just to do so. Rule 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 party intending to sue or, as the case may be, intended to be sued.

2. In Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 the High Court considered the power to amend a writ to correct the name of a defendant. Goods were damaged in transit by sea from Brazil to Melbourne. The owner of the goods sued the company it had engaged to arrange the carriage. The defendant issued a third party notice against the registered owner of the vessel. The defendant later discovered that at the time of the carriage the vessel had been under charter to another company which had therefore been the carrier of the goods. The defendant applied under r 36.01 of the Rules of the Supreme Court of Victoria to substitute the charterer as third party in place of the owner. Rule 36.01 provided:

   (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.

   …

   (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.

   …

   (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.

   Master Brett refused the application.  King J dismissed an appeal.  The Full Court dismissed a further appeal.

3. On appeal to the High Court, the High Court held that the appellant's mistake was that it believed it had rights against the owner of the vessel, and this was not a mistake in the name of the party within r 36.01(4). McHugh J, with whom Brennan and Deane JJ agreed, considered the history of r 36.01. McHugh J said:

   Rule 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. … In Davies v Elsby Bros Ltd, 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'.  Devlin LJ said:

   '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.'

   In Davies, the plaintiff had issued a writ against 'Elsby Bros ‑ 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 Bros, but in 1955 that firm's business was taken over by Elsby Bros 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.

   …

   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 …

   In Mitchell v Harris Engineering Co Ltd, Lord Denning MR said:

   'Sub‑rule (3) has removed the injustice caused by the decision in Davies v Elsby Bros.'

   In Evans Constructions Co Ltd v Charrington & Co Ltd, 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 & 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 (UK), 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.

   On appeal, Donaldson LJ 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 LJ said:

   '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 LJ who dissented said:

   '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.'

   …

   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 r 36.01(4).

   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.

   …

   Rule 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.  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.

   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: r 36.01(6) (254) ‑ (261).

1. McHugh J held that an amendment is permitted not only where the plaintiff is wrong about the defendant's name but also where the plaintiff identifies the defendant by a description and attributes the wrong name to the defendant.

2. Order 21 r 5 is based upon, and in the same words as, O 20 r 5 of the Rules of the Supreme Court (UK) considered by McHugh J in Bridge Shipping, except for cross‑references which are not relevant for present purposes.

3. The power conferred by O 21 r 5 to correct the name of a party is remedial and should be given a beneficial interpretation. It extends to, but is not limited to, misnomers, clerical errors, misdescriptions and cases where the plaintiff intends to sue a defendant of a particular description but is mistaken as to the name of the person or entity who answers that description.

Discretion to correct name of fourth defendant

1. Before the court will grant leave to the plaintiff to amend his writ to correct the name of the fourth defendant the court must be satisfied of three things.  First, that the mistake sought to be corrected was a genuine mistake; second, that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; third, that it is just to make the amendment.

Was there a genuine mistake in the name of the fourth defendant?

1. The first requirement is that there must be a mistake.  The mistake must be in the name of the fourth defendant, that is the plaintiff must have made a mistake in naming the defendant as he has done in his writ.  That is because the application is to amend the writ by 'an amendment to correct the name of a party'.

2. There was a genuine mistake by Mr Papamatheos.  He mistakenly believed that the plaintiff could sue the club, as employer of the third defendant, in the name 'Western Australian Turf Club'.  It is true that with a greater degree of care and diligence he would not have made the mistake.  Nevertheless, on the evidence, he made a genuine mistake.

3. The plaintiff's mistake was a mistake as to the name in which he must sue the person he intended to sue.  The Act requires that an action against the club be commenced against the chairman as the nominal defendant for, and on behalf of, the club.  That is, the real defendant is the club but the Act requires that the action be brought in the name of the chairman.  By commencing the action in the name of the club the plaintiff made a mistake as to the name in which the person whom he intended to sue is to be sued.

4. Counsel for the third defendant submitted that the issue for determination in this application is the characterisation of the mistake made by the plaintiff and his solicitors.  Counsel submitted that the characterisation of the mistake 'is not one of the name of the party but … a mistake of law' (ts 15).  Counsel submitted that the plaintiff and his solicitors mistakenly thought that the club is a legal entity capable of being sued.

5. I do not accept the submission of the third defendant.  The issue is not one of characterisation in the sense that the mistake made by the plaintiff, or his solicitor, must be characterised as a mistake in the name of the party or a mistake of law.  The issue is whether the plaintiff, or his solicitor, made a mistake in the name of the fourth defendant.  If he did then the power to allow the plaintiff to amend the writ is enlivened and it does not matter whether the mistake might also be characterised as a mistake as to law.

6. Counsel for the third defendant submits that the mistake made by the plaintiff, through his solicitor, is that he erroneously determined that The West Australian Turf Club existed under the Act.  Counsel says that that could only mean that the solicitor's understanding was that the West Australian Turf Club was a legal entity capable of being sued.  Counsel submits that the plaintiff decided that the entity that he intended to sue was the entity that he erroneously believed existed under the Act.  Counsel submitted that that is not a mistake as to the name of the party but a mistake as to the legal characteristics of the party he wished to sue.

7. In Re McJannet; Ex Parte Minister for Employment, Training and Industrial Relations (1995) 184 CLR 620 Toohey, McHugh and Gummow JJ referred to 'Unincorporated Non‑Profit Associations (1959) where Professor Ford says at pages xx ‑ xxi:

   A legal system by its very nature requires units upon which it can bring its influence to bear in the business of regulating relations.  These units have often been called legal persons.  The expression is not a happy one … Law being an instrument of social regulation it very often has human beings as its units but there may be occasions when the legal system must determine that something which is not a human being is a legal unit.  Oft‑quoted examples of this are ships and idols [see Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925) LR 52 Ind App 245].  When human beings act in concert and the legal system approves the group enterprise to the extent of being prepared to provide facilities for its fulfilment, it may, for the more effective provision of these facilities, find it convenient to bracket the collection of individuals behind a smaller unit.  Here a mere abstraction, the idea of an entity arising from the association, is treated as a unit (659) ‑ (660).

8. Toohey, McHugh and Gummow JJ referred to Williams v Hursey (1959) 103 CLR 30 at 54 where Fullagar J identified the most fundamental difference between a corporation and an unincorporated body to be perpetual succession, that is the maintenance by the entity of its legal personality notwithstanding changes in membership, so that its property does not belong to its members from time to time (660).

9. In R v R L and J F [2008] EWCA Crim 1970 Hughes LJ said that at 'common law an unincorporated association is to be distinguished from a corporation, which has a legal personality separate from those who have formed it, or who manage it or belong to it' [12]. His Lordship went on to say that this apparently simple legal dichotomy is deceptive and conceals a significantly more complicated factual and legal position [13]. His Lordship said:

   As to fact, many unincorporated associations have in reality a substantial existence which is treated by all who deal with them as distinct from the mere sum of those who are for the time being members.  Those who have business dealings with an unincorporated partnership of accountants, with hundreds of partners world‑wide, do not generally regard themselves as contracting with each partner personally; they look to the partnership as if it were an entity.  The same is true of those who have dealings with a learned society, or a trade union, or for that matter with a large established golf club …

   As to the law, it no longer treats every unincorporated association as simply a collective expression for its members and has not done so for well over a hundred years.  A great array of varying provisions has been made by statute to endow different unincorporated associations with many of the characteristics of legal personality.  Examples selected at random include the following.  The detailed special rules for partnerships contained in the Partnership Act 1890 scrupulously preserved the personal joint and several liability of the partners …  but the partnership can sue or be sued in its firm name …  A Trade Union is, by statute, not a corporation:  Trade Union and Labour Relations (Consolidation) Act 1992 s 10(1).  But by the same section it can make contracts, sue and be sued in its own name, and commit a criminal offence.  In the case of learned societies and institutions, their property (if not vested in trustees) is by s 20 of the Literary and Scientific Institutions Act 1854 vested in their Governing Body, albeit that neither the institution nor the governing body is a corporation … [14] ‑ [15].

10. In Austin R P, Ramsay I M, Ford's Principles of Corporations Law (13th ed, 2007) the learned authors write:

    In the past bodies have sometimes been created by statute or registered under statute but the statute has not been definitive as to their status.  Uncertainty as to status has arisen when the statute has given the body some of the attributes of a corporation.  Those attributes include the ability to sue, the liability to be sued, the power to hold property and continuous existence. …

    In some cases courts have considered that the range of attributes given justifies an implication that Parliament intended the body, although not called a corporation, to be a discrete legal entity separate from its members in the same way and to the same extent that a corporation is a discrete legal entity.  That is particularly so where the Act provides that legal proceedings by or against it can be taken in the body's name:  Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd (1947) 74 CLR 375 at 385.

    If only a limited range of attributes is given to the body it may not be held to be equivalent to a corporation:  Mayor etc ofSalford v Lancashire County Council (1890) 25 QBD 384 at 389; Bonsor v Musicians Union [1956] AC 104.

    Some provisions of the Corporations Act extend beyond corporations to unincorporated bodies with limited corporate attributes.  For example, under s 601CA if a body that is not a registered company carries on business in a state or territory within the total geographical area governed by the Act (see 'this jurisdiction' as defined in s 9) it must be registered with ASIC under Pt 5B.2 as doing so unless it has its place of origin or its head office or principal place of business in that state or territory.  The non‑company bodies required to register are comprehended in the expression 'registrable Australian body'.  The definition in s 9 of a 'registrable Australian body' includes not only corporations that are not companies but also any unincorporated body that under the law of its place of formation may sue or be sued or hold property, in either case, in the name of its secretary or an officer appointed for the purpose.

    At one time the Australian Gas Light Company (now named 'AGL Ltd') was an example of an unincorporated body with corporate attributes.  It was formed before there was legislation under which companies could be incorporated by registration.  It was given, by private Act of the Legislature of NSW in 1837, various powers including power to sue and to be sued in the name of the secretary for the time being.  Subsequent Acts assimilated it in many respects to a company registered under subsequent companies legislation [2.100].

11. The Act has given the club some of the attributes of a corporation.  I have already referred to the provisions in the Act providing for actions to be brought in the name of the chairman or against the chairman 'as the nominal defendant for and on behalf of the club or members' and the section of the Act providing for judgments to be enforced against the property and the effects of the club.  Under the Act property is vested in the chairman and his successors in trust for the club.

12. The club exists, and has existed for some time.  It maintains a racecourse, or racecourses, and conducts race meetings.  It is recognised by its own solicitors as being an 'organisation' separate from its chairman.  The Act recognises the club as an entity sufficiently separate from its members to provide for the chairman to sue or be sued as the nominal plaintiff or defendant 'for and on behalf of the club or members'.  Section 9 provides that all land and other property vested in or held by any person in trust for the club or the members shall upon the passing of the Act be vested in and be held by the chairman and his successors in trust for the club.  That again is a recognition of the club as an entity separate from the members.  Section 32 of the Act provides for the appointment of a receiver of the rents and other revenue of the club.

13. The requirement in the Act that actions against the club shall be commenced against the chairman is a convenient method for commencing proceedings against the club which is not an incorporated body and has no separate legal personality that enables it to be sued in its own name.

14. The plaintiff intended to commence proceedings against the club.  Section 3 of the Act provides, or recognises, that an action may be brought 'against the Club' but requires that all actions against the club shall be commenced against the chairman as the nominal defendant for and on behalf of the club.  The mistake made by the plaintiff was a mistake as to the name in which proceedings against the club are to be commenced.

Mistake was not misleading

1. Order 21 r 5(3) provides that the amendment to correct the name of a party may be allowed if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intended to be sued. I have found that the mistake was a genuine mistake in the name of the party to be sued. The plaintiff intended to sue the club. The Act requires that an action against the club be commenced in the name of the chairman as nominal defendant for and on behalf of the club but the plaintiff mistakenly believed that the action against the club could be commenced in the name of the club.

2. I am satisfied the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the party intended to be sued.  A reasonable person in the position of the club, its chairman, officers and employees would have been in no doubt that the plaintiff intended to sue the club.

3. The evidence shows that the club, through its solicitors, understood that the plaintiff intended to sue the club.  When the club, through its relevant officer or employee, first received correspondence from the plaintiff's solicitors in relation to the alleged incident at Belmont Park racecourse and the proposed inquiry and referred the matter to its solicitors, it understood that the plaintiff was corresponding with the club.  In their letter of 20 February 2008 to the plaintiff's solicitors, the club's solicitors stated that they acted for the club and that they were instructed to accept service of the writ the plaintiff had caused to issue against 'out client'.  The club, through its solicitors, understood that the plaintiff's action was intended to be brought against the club.  That is confirmed by the club's solicitors' letter of 15 January 2009.  In that letter the solicitors stated that 'the Western Australian Turf Club' is generally used to describe the organisation contemplated by the Act and that it was in that sense that they stated that they act for the Western Australian Turf Club.  They said, 'We act for the organisation contemplated by the [Act]'.

Should amendment be allowed?

1. The final question is whether it is just to allow the amendment. I find that it is. If the amendment is refused then the plaintiff will be deprived of his action in defamation against the club. On the other hand, there is no relevant prejudice to the club, or Mr Van Heemst as the nominal defendant for and on behalf of the club. The plaintiff's solicitors sent a concerns notice, as defined in s 15 of the Defamation Act 2005 (WA) to the club. The concerns notice was addressed to 'The West Australian Turf Club'. It enclosed a copy of the newspaper article complained of and informed the club of the defamatory imputations that the plaintiff considers are or may be carried about him by the publication complained of. The notice also informed the club that the plaintiff held it responsible for the alleged defamation on the basis that the defamatory statements complained of had been made by its employee, the third defendant. The notice further informed the club that it was given in accordance with the pre‑action protocol for defamation under the Defamation Act and that if the plaintiff did not receive a satisfactory response he would proceed with his claim against the club as the third defendant's employer. Whichever officer or officers, employee or employees of the club received or considered the concerns notice they passed the notice onto the club's solicitors. It is apparent from the correspondence that those solicitors understood that the plaintiff's claim was intended to be made against the club.

2. The plaintiff should have leave to amend his writ by correcting the name of the fourth defendants to read 'Edward Van Heemst as nominal defendant for and on behalf of The Western Australian Turf Club'.