Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd - [2022] WASCA 139

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   COLLGAR WIND FARM PTY LTD -v- RJE GLOBAL PTY LTD [2022] WASCA 139
CORAM:   BUSS P
MURPHY JA
MITCHELL JA

HEARD:   19 OCTOBER 2022
DELIVERED          :   1 NOVEMBER 2022
FILE NO/S:   CACV 108 of 2021
BETWEEN:   COLLGAR WIND FARM PTY LTD
Appellant
AND
RJE GLOBAL PTY LTD
First Respondent
AUSTRALIAN CONTRACTING SERVICES PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
Citation: COLLGAR WIND FARM PTY LTD -v- RJE GLOBAL PTY LTD [2021] WASC 367
File Number            :   CIV 1054 of 2021

Catchwords:

Practice and procedure - Parties - Misdescription - Power to correct mistake in name of party - Proper construction of O 21 r 5 - Scope of inherent jurisdiction - Objective construction of statement of claim - Whether mistake genuine - Whether mistake objectively misleading or such as to cause any reasonable doubt as to identity of true defendant

Legislation:

Limitation Act 2005 (WA), s 12, s 13
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	J Taylor SC & D J Pratt
First Respondent	:	B A Millar
Second Respondent	:	B A Millar

Solicitors:

Appellant	:	McCabes
First Respondent	:	Jackson McDonald
Second Respondent	:	Jackson McDonald

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

Alinta 2000 Ltd v Petkov [2012] WASCA 258
Beardmore Motors Ltd v Birch Bros (Properties) Ltd [1959] 1 Ch 298
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Brandsma v Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367
Davies v Elsby Brothers Ltd [1961] 1 WLR 170
J Robertson & Co Ltd (in liq) v Philips Electrical Pty Ltd [1971] ALR 377
Lois Nominees Pty Ltd v Hill [2011] WASC 53
Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440
Weldon v Neal (1887) 19 QBD 394
Whittam v WJ Daniel & Co Ltd [1962] 1 QB 271

JUDGMENT OF THE COURT:

Introduction

This is an appeal against orders of Curthoys J dismissing an application to amend the name of the defendant on the writ in the primary proceedings. The orders were made pursuant to reasons published on 27 October 2021: Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd.[1]
[1] Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367 (primary decision).
On 1 February 2021, the appellant (Collgar) issued a writ naming RJE Global Pty Ltd (RJE Global) as the defendant.[2]
[2] Primary decision [1].
By amended application dated 20 April 2021, Collgar sought orders pursuant to O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules), or in the inherent jurisdiction of the court, that it have leave to amend the name of the defendant from 'RJE Global' to 'Australian Contracting Services Pty Ltd (ACN 074 273 779)' (ACS).[3]
[3] Primary decision [2].
At all material times, RJE Global was a company with a registered office at Wayville, South Australia, and a principal place of business in Morphettville, South Australia. Its directors were Robin Andrew Johnson (Mr Johnson) and Dean George Cook (Mr Cook). Its shareholders were R & G Johnson Investments Pty Ltd and Incontrol Engineering Pty Ltd. Mr Johnson was the company secretary. It was incorporated on 25 August 2015.[4]
[4] GB 214 - 216.
ACS is a company originally registered on 5 June 1996 as Robin John Engineering Pty Ltd (RJE).[5] At all material times, it had the same directors, company secretary, registered office and principal place of business as RJE Global, and its shareholders comprised Mr Johnson and Incontrol Engineering Pty Ltd.[6] On 22 August 2018, pursuant to a notification of resolution signed by Mr Johnson and lodged with the Australian Securities and Investments Commission, RJE changed its name to ACS.[7]
[5] GB 240.
[6] GB 229 - 230.
[7] GB 241.
The judge refused to grant leave to amend. The judge also found that, in the event the amendment was not allowed, Collgar's claim against ACS would be barred by the Limitation Act 2005 (WA) (Limitation Act). Collgar appeals the decision to refuse the amendment.[8]
[8] Primary decision [4], [102].
Although ACS had not originally been made a party to the appeal (as it should have been), the court, prior to the hearing of the appeal, ordered that the appeal papers be served on ACS. That was done. At the commencement of the hearing of the appeal, counsel for RJE Global announced his appearance on behalf of both RJE Global and ACS. Also, the court formally ordered the joinder of ACS as a second respondent to the appeal.[9]
[9] Appeal ts 2, 66.
For the reasons which follow, in our view the appeal should be allowed. In substance, the case is on all fours with this court's earlier decision in Alinta 2000 Ltd v Petkov.[10] The subsequent amendment of O 21 r 5 since that decision does not materially alter the principles to be applied or require a different outcome in this case.
[10] Alinta 2000 Ltd v Petkov [2012] WASCA 258 [58], [128].

Background

There was no dispute in the appeal as to the material background facts, summarised below.
In May 2009, Collgar engaged Vestas-Australian Wind Technology Pty Ltd (Vestas) to provide wind turbine generators at Collgar's wind farm. The works were commenced in June 2010 and were completed in October 2011.[11]
[11] Primary decision [5].
Vestas retained RJE (now known as ACS) as a subcontractor to assist with the works and, in particular, to undertake electrical cable installation and termination work.[12]
[12] Primary decision [6].
On 5 February 2015, a failure occurred in a cable feeding transformer TX211, and on 26 February 2015, a failure occurred in a cable feeding transformer TX111.[13]
[13] Amended chronology, WB 52.
On 1 February 2021, Collgar issued a writ indorsed with a statement of claim naming RJE Global as defendant.[14] On 8 February 2021, a copy of the writ was served at the principal place of business of RJE Global and ACS.[15]
[14] Primary decision [8].
[15] Amended chronology, WB 52.
Collgar's solicitor, who issued the writ, deposed, in effect, that in identifying the defendant he relied on various expert reports commissioned by Collgar in relation to the failures of transformers 1 and 2 at the Collgar Wind Farm, which referred to 'RJE' as the original installer of the transformers.[16] The solicitor said, in effect, that he carried out a company search in relation to 'RJE' which identified the company RJE Global. He assumed this entity was the 'RJE' entity referred to in the various expert reports. In doing so, he failed to notice that the search indicated that RJE Global was not incorporated until 25 August 2015.[17]
[16] GB 168, 208, 210.
[17] GB 2 - 3.
After service of the writ, on 9 February 2021, the in-house counsel for RJE Global contacted Collgar's solicitor. In an email that day, RJE Global's in‑house counsel stated:[18]
1 refer to your letter dated 2 February 2021 which included a Writ of Summons in relation to Collgar Wind Farm …
As discussed with you on the phone just now [RJE Global] was not incorporated until 25 August 2015, almost 4 years after paragraph 4 of the statement of claim details that the works were complete.
I believe [RJE] may have been involved in that project but I don't think they had a contract with [Vestas].
[18] GB 226.
On 26 February 2021, Collgar applied to amend the name of the defendant from RJE Global to ACS. On 13 March 2021, the application and other court documents were sent to RJE Global.[19]
[19] Amended chronology, WB 53.
On 17 March 2021, RJE Global's in‑house counsel wrote to Collgar's solicitors. She referred to her earlier email, and said:[20]
I work for RJE Global … the documents will need to be served on [ACS] and you will need to change the Defendant in the action to [ACS].
[20] GB 247.
On 20 April 2021, Collgar filed an amended application to amend the name of the defendant from RJE Global to ACS, pursuant to O 21 r 5, and alternatively pursuant to the inherent jurisdiction of the court.[21]
[21] BB 41.

The writ and indorsed statement of claim

The writ named RJE Global as the defendant and was addressed to RJE Global at its registered office in Morphettville, South Australia.[22]
[22] BB 32.
The indorsed statement of claim included the following:[23]
[23] BB 34 - 36.
1.The Plaintiff is:
1.1.incorporated pursuant to the Corporations Act 2001;
1.2.the owner and operator of the Collgar Wind Farm ('CWF'), south east of Merredin, Western Australia.
2.The Defendant is:
2.1.incorporated pursuant to the Corporations Act 2001;
2.2.an engineering, design and construction company with expertise in electrical cable installation and termination.
3.By an agreement entered into in May 2009 the Plaintiff engaged [Vestas], for valuable consideration, to design, procure, supply, construct, test and commission 111 wind turbine generators for use at CWF ('Works').
Particulars
3.1.The agreement is evidenced by EPC contract, between the Plaintiff and [Vestas], dated 18 May 2009.
4.The Works commenced in June 2010 and were completed in October 2011.
5.The Defendant was retained by [Vestas], as a subcontractor, to assist with the Works and in particular, to undertake electrical cable installation and termination work ('Sub-Contract Works').
Particulars
5.1.Particulars of the relevant agreement for the performance of the Sub-Contract Works will be provided after the provision, by the Defendant, of discovery.
6.The CWF wind turbines feed generated power via 33kV cables into a sub-station, through a series of circuit breakers, and on to two transformers, owned by Electricity Networks Corporation trading as 'Western Power', being transformer TX111 and transformer TX211.
7.As a part of the Sub-Contract Works, the Defendant performed the cable installation and termination work connecting the sub‑station to transformer TX111 and transformer TX211.
8.The Defendant was under a duty of care to carry out the Sub‑Contract Works with due care and skill so as to minimise the risk of harm to the Plaintiff.
9.On 5 February 2015 there was a failure of the cable feeding transformer TX211 at a point where the XLPE insulation of the terminating cable ends ('Event 1').
10.Event 1 occurred due to significant abrasion of the XLPE insulation of the relevant cable causing a reduction in the integrity of the insulation which resulted in an increase in voltage stress, above the rating of the insulation, and subsequent failure of the cable.
11.The abrasion involved in Event 1 was made by an employee or agent of the Defendant, as a part of the Sub-Contract Works, during the process of preparing the cable for installation of the ABB cable termination kit.
12.Event 1 occurred due to negligence on the part of an employee or agent of the Defendant.
Particulars
12.1.Prior to installation of the ABB termination kit the employee or agent failed to prepare the XLPE insulation so as to ensure that there were no sharp transitions or air gaps.
13.On 26 February 2015 there was a failure of the cable feeding transformer TX111 at a point where the XLPE insulation of the terminating cable ends ('Event 2').
14.Event 2 occurred due to significant abrasion of the XLPE insulation of the relevant cable causing a reduction in the integrity of the insulation which resulted in an increase in voltage stress, above the rating of the insulation, and subsequent failure of the cable.
15.The abrasion involved in Event 2 was made by an employee or agent of the Defendant, as a part of the Sub-Contract Works, during the process of preparing the cable for installation of the ABB cable termination kit.
16.Event 2 occurred due to negligence on the part of an employee or agent of the Defendant.
Particulars
16.1.Prior to installation of the ABB termination kit the employee or agent failed to prepare the XLPE insulation so as to ensure that there were no sharp transitions or air gaps.

Order 21 r 5 of the Rules

On 1 March 2018, O 21 r 5 was amended. It currently reads:
Amending writ or pleading with leave
(1)This rule is subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5).
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
Prior to 1 March 2018, O 21 r 5 was in the following form:
Amending writ or pleading with leave
(1)Subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) and 19(5); and
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.
(3)An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.
(5)An amendment may be allowed under subrule (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 or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
The amendment to O 21 r 5 on 1 March 2018, which, in effect, excised former subrules (2) ‑ (5) of the Order, was made following the decision of this court in Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[24] In Belgravia, there was an application under O 21 r 5 as it stood prior to the amendment of 1 March 2018 to amend a general indorsement on the writ to introduce three additional paragraphs of the description of the claim and seven additional paragraphs into the prayer for relief.[25] In finding that the amendment should have been allowed, the court said:[26]
[T]he following principles can now be taken to be established:
(a)limitation legislation, and the defences provided by limitation legislation, operate by reference to the commencement of proceedings in relation to a cause of action, and not by reference to subsequent steps in the course of proceedings, unless that subsequent step is seen as the 'commencement' of a proceeding by the addition of a new cause of action;
(b)if an amendment does not involve the addition of a new cause of action, no question of limitation arises;
(c)in assessing, as a matter of impression and degree, whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly;
(d)if the amendment does involve the addition of a new cause of action after the time for commencement of proceedings in respect of that cause of action has expired, no doctrine of 'relation back' or rule of court can prevent a defendant from invoking and relying upon a limitation defence;
(e)a statutory limitation bars the remedy rather than right, must be pleaded to be invoked, and can be waived;
(f)however, in a case in which a defendant indicates an intention to plead a limitation defence to a cause of action barred by statute at the time it is proposed to be added by amendment, the court will disallow the amendment if there is no doubt that such a defence would defeat the claim.
[24] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127.
[25] Belgravia [6].
[26] Belgravia [46].
In Belgravia, the court also said:[27]
In accordance with [established] principles, following the demise of any doctrine of 'relation back', the only continuing significance of subrules (2) - (5) of O 21 r 5 is to reinforce the proposition that the court should not take an overly rigid or technical approach to the assessment, as a matter of impression and degree, of whether an amendment adds a new cause of action. (emphasis added)
[27] Belgravia [52].

Primary decision

The primary judge accepted RJE Global's submissions to the effect that this was not a case of misnomer, misdescription or clerical error because Collgar made an error in identifying the entity that carried out the relevant works and 'not as to the name of the entity incorrectly identified as being that entity'.[28] In that regard, the judge accepted, in effect, RJE Global's submission that the minority judgment of Dawson J in Bridge Shipping Pty Ltd v Grand Shipping SA[29] provided an 'authoritative consideration' of the relevant principles to be applied, and outlined 'a somewhat narrower interpretation of the amendment power in relevant rule than that proposed by the majority' in Bridge Shipping.[30] The primary judge also accepted RJE Global's submission that it would not be in the interests of justice to allow the amendment.[31] The judge summarised his conclusions as follows:[32]
The error made by Collgar was not a mere misnomer. Contrary to Collgar's submissions, the evidence establishes that in reliance on the expert report, Collgar intended to sue RJE Global in the mistaken belief that it had carried out the cable installation and termination work. Why Collgar relied on this report rather than carrying out its own inquiries is not explained. It was an error as to identity not a mere misnomer.
It is not in the interests of justice to allow the amendment. Collgar could have identified the correct party much earlier. It failed to make proper inquiries. No real explanation is offered for its failure to do so.
The court has power to allow the amendment without resolving the limitation defence. There is no issue between the parties that if the amendment is not allowed the limitation period has expired. It is clear from RJE Global's submissions that [ACS] intends to rely upon the limitation defence. It is not merely theoretical that the limitation defence will be pleaded. To allow the matter to proceed further would be a futile and inefficient use of the limited resources of the parties and the court.
[28] Primary decision [90].
[29] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231.
[30] Primary decision [77] - [82].
[31] Primary decision [90].
[32] Primary decision [98] - [100].

The grounds of appeal and parties' submissions

Grounds

Ground 1 of the appeal alleges that the judge erred in law in finding that there was no power to permit Collgar to amend the name of RJE Global because:
1.The judge incorrectly proceeded on the basis that the test under O 21 r 5 and the inherent jurisdiction of the court as to when such an amendment was allowed was (effectively) as formulated by Dawson J in Bridge Shipping.
2.The judge incorrectly found that Collgar's error was not a misnomer that enlivened the power to grant leave to amend.

Ground 2 of the appeal alleges that the judge erred in law in finding that it was not in the interests of justice to permit an amendment in the circumstances of the case.[33]

Collgar's submissions

[33] Appellant's grounds of appeal, WB 5.

In relation to ground 1, Collgar accepted that the power in O 21 r 5 could not be exercised to defeat a limitation statute.[34]
[34] Appellant's submissions, par 19.
Collgar contended in effect that, under O 21 r 5 and in the court's inherent jurisdiction, the relevant inquiry directs attention to whether, properly construed, the writ may be considered to have commenced a cause of action against the true defendant (ascertained objectively) within the time limits prescribed by the applicable limitation period. Under such an approach, the unfairness previously said to have arisen from the 'relation back' rule under Weldon v Neal[35] is largely eliminated, because there is no inconsistency with, or undermining of, the Limitation Act.[36] Collgar submitted that where an order is made to correct a misnomer or misdescription in the name of the party, the resulting correction only involves the substitution of a new party in a technical or formal sense, since the party after the correction is the same as the person who was previously misnamed or misdescribed.[37]
[35] Weldon v Neal (1887) 19 QBD 394.
[36] Appellant's written submissions, par 43.
[37] Appellant's written submissions, pars 16, 19. Reference was made to J Robertson & Co Ltd (in liq) v Philips Electrical Pty Ltd [1971] ALR 377, 380; Bridge Shipping (238 ‑ 239); Brandsma v Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [8], [43].
Collgar submitted in effect that the indorsed statement of claim fully described the defendant by reference to 'the attributes relevant to considering against whom the cause of action was to be brought' and established a mistake, misnomer or misdescription in the name of the defendant.[38] It submitted that on the evidence, there were no circumstances suggesting that any other putative defendant met that description. As RJE was not in existence at the time the electrical work was done on the project, there could not have been any objective confusion as to whether the named defendant was intended to be that company. There could not be any doubt, on reading the statement of claim, that Collgar sought to sue the party that did the subcontract works in the period identified in the statement of claim. That company was not RJE Global, but ACS. The mistake was obvious.[39] Collgar also submitted that if it was necessary to 'go further',[40] and Collgar's actual intention was relevant, Collgar's solicitor's evidence explaining the mistake established that Collgar did not intend to name RJE Global as the defendant. Also, if it was relevant to consider the actual reaction of the recipient, the reaction of RJE Global's in‑house counsel to the writ demonstrated that a 'reasonable person in the position of ACS would have understood that the writ was intended for it'.[41]
[38] Appellant's written submissions, par 47.
[39] Appellant's written submissions, par 48.
[40] Appellant's submissions, pars 50 - 52.
[41] Appellant's submissions, par 53.
In relation to the inherent jurisdiction of the court, Collgar submitted that the scope of the court's inherent jurisdiction 'may well be the same' as that under O 21 r 5, although it arguably had a broader scope than the O 21 r 5 power.[42]
[42] Appellant's submissions, pars 24 - 25.
In relation to ground 2, Collgar contended, in effect, that having regard to the proper construction of O 21 r 5 and the proper scope of the court's inherent jurisdiction, the judge mis‑exercised his discretion. Collgar also referred to RJE Global and ACS being 'closely connected entities', that they were jointly legally represented in the proceedings, that the writ was served on their common principal place of business and that there was no evidence of material prejudice to ACS other than having to defend the claim on its merits.[43]

RJE Global's submissions

[43] Appellant's submissions, pars 58 - 60.

RJE Global contended, in effect, that RJE Global and ACS are two separate existing legal entities that cannot be said to be the named party to the action, and that if the application to amend were allowed, it would result in the additional substitution of a new party, in circumstances where the relevant limitation period had expired.[44] Reference was made[45] to O 21 r 5 being subject to O 18 r 6, r 7 and r 8 and the operation of those rules as explained by Beech J in Lois Nominees Pty Ltd v Hill.[46]
[44] Respondent's submissions, pars 3 - 5.
[45] Respondent's submissions, par 30.
[46] Lois Nominees Pty Ltd v Hill [2011] WASC 53 [50] ‑ [51], [59], [61].
RJE Global submitted that the scope of the power to amend under O 21 r 5 had been 'curtailed' by the amendment on 1 March 2018. RJE Global submitted that the former O 21 r 5, based on the English O 20 r 5, introduced in the United Kingdom in 1965, expanded the scope of the power under the court's inherent jurisdiction to correct for misnomer, misdescription or clerical error.[47] RJE Global submitted, in effect, that what Collgar was seeking to do was to 'reintroduce the expanded power given by the old version of the Rule, as interpreted by McHugh J in Bridge Shipping, and adopted in Brandsma, under the guise of the inherent power (or as a residue under the Rule, still subsisting despite the amendments)'.[48]
[47] Respondent's submissions, pars 16 - 19.
[48] Respondent's submissions, par 60.
RJE Global also submitted, in effect, that the Victorian rule considered in the case of Bridge Shipping was informed by s 34 of the Victorian Limitation of Actions Act 1958, which, RJE Global submitted, effectively allowed the rule to override a limitation defence. This was unlike the position in Western Australia.[49]
[49] Respondent's submissions, pars 22 - 24.
RJE Global also submitted that McHugh J's reasoning in Bridge Shipping was predicated on the express terms of the rule in that case, and that there were no corresponding provisions in O 21 r 5 since the 1 March 2018 amendment.[50]
[50] Respondent's submissions, par 25.
It also submitted that some judges in earlier decisions in England had impermissibly (from an Australian perspective) treated limitation provisions as a matter of procedural rather than substantive law.[51]
[51] Respondent's submissions, par 26.
RJE Global submitted:[52]
39.[Collgar's] interpretation of the Rule as permitting the change in the defendant sought on the Application is untenable.
40.First, it is common ground that the relevant limitation period has expired and the amendments to the Rule have removed the express words that purported to deal with the permit (in certain circumstances) amendments of the type sought by [Collgar] to correct the name of a party.
41.The Rule cannot now be interpreted to in effect have some residual scope to allow amendments of the type sought (when the limitation period has expired), whether to correct the name because of a mere misnomer or otherwise and whether substitutions ('technical' or otherwise) would occur.
42.Second, the Rule (as amended) is expressly subject to Order 18 Rules 6, 7 and 8, which deal with substitution of parties, 'technical' or otherwise, to the exclusion of the Rule.
43.Third, while [Collgar] may wish to argue that the substitution of ACS for RJE Global in this case is merely a 'technical' or 'formal' substitution, this does not detract from the fact that it is a substitution as one existing entity is being replaced by another. RJE Global and ACS are two separate existing legal entities and cannot be said to in effect be the same named party to the action.
44.Fourth, to interpret the Rule so as to allow the amendment sought on the Application results in it being ultra vires - it would result in the addition or substitution of a new party in circumstances where the relevant limitation period had expired. It would countenance the use of the Rule to circumvent the Limitation Act and override ACS's defence provided by section 13, which is beyond the power of the Court to do.
45.[Collgar] must therefore rely on the inherent power to correct for misnomer. (original emphasis) (footnotes omitted)
[52] Respondent's submissions, pars 39 - 45.
In relation to the court's inherent jurisdiction, RJE Global submitted, in effect, that the inherent power to correct for misnomer, or any residual power under O 21 r 5, does not extend to correcting mistakes as to identity. RJE Global relied on the reasoning of Dawson J in Bridge Shipping.[53]
[53] Respondent's submissions, pars 54 - 57.
RJE Global also submitted that, in any event, if which was denied, the scope of the inherent power to correct the misnomer, or any residual power under O 21 r 5, is delineated by applying the test proposed by Devlin LJ in Davies v Elsby Brothers Ltd,[54] that test is not satisfied. A reasonable person receiving the writ would not conclusively say 'the plaintiff must mean ACS but has got ACS's name wrong'. Rather, they would say 'the plaintiff has mistakenly formed the view that RJE Global is the entity liable'.[55]
[54] Davies v Elsby Brothers Ltd [1961] 1 WLR 170, 176.
[55] Respondent's submissions, pars 58 - 59.
RJE Global also contended that there were procedural difficulties inherent in the arguments advanced by Collgar. It submitted:[56]
79.The problem with [Collgar's] arguments are made manifest when one considers the orders being sought. Order 5 concedes that [Collgar] should pay RJE Global's costs of its notice of appearance, presumably because it was the wrong party sued and should not have been put to the trouble of spending time and money on considering and answering the writ. However, Order 4 requires both RJE Global and ACS to pay [Collgar's] costs of the appeal and Application. ACS has not yet been properly served with the writ and remains a putative defendant. Does ACS now have to be served and enter an appearance? What if RJE Global had done something in the course of the action to the prejudice of ACS (or its insurers), would that have bound that other entity? If in truth these entities were the same and this was a case of a mere misnomer, such problems would not arise.
[56] Respondent's submissions, par 79.
RJE Global submitted that Collgar seeks in effect to utilise the power of the court (under O 21 r 5 or in its inherent jurisdiction) to obtain a 'relation back' to the commencement of the action as against ACS, in a manner that overrides a substantive defence given to it by the Limitation Act. It submitted that this is beyond the power of the court in its inherent jurisdiction or under O 21 r 5.[57]
[57] Respondent's submissions, par 81.
In relation to ground 2, RJE Global submitted that even if there were power to allow the amendment (which is denied), the primary judge exercised his discretion in a manner that does not permit this court to interfere. RJE Global submitted, in effect, that the primary judge properly took into account the following matters when considering the interests of justice:[58]
1.The six‑year limitation period and the limited circumstances in which an extension may be allowed under the Limitation Act were indicative of the legislature's intention of what is in the overall interests of justice.
2.Collgar's proposed amendment did not fall within the limited circumstances provided for in pt 3 of the Limitation Act.
3.Collgar's insurers had six years to decide which party to sue and yet delayed instructing solicitors until the last minute. This was in a context in which Collgar itself had been indemnified for its losses the subject of the action.
4.Collgar and its insurers were not led into error by ACS or RJE Global. In fact, Collgar and its insurers were informed that they had potentially made an error the day after the writ was served on RJE Global by its in‑house lawyer.
5.Collgar and its insurers could, at that time, have carried out more thorough searches, and could have simply issued fresh proceedings naming ACS as defendant prior to the limitation period expiring. They did not do so. The adverse consequences were of their own making. This is what his Honour was referring to when he said (at primary decision [99]) that Collgar 'failed to make proper inquiries'. His Honour added that 'no real explanation is offered for its failure to do so'.
6.The delay will 'self‑evidently make the proper and just trial of the action difficult and is likely to visit significant prejudice' on ACS.
[58] Respondent's submissions, pars 86 - 88.

The proper construction of O 21 r 5 of the Rules and the inherent jurisdiction of the court

Order 21 r 5

This court has accepted that O 21 r 5 (prior to the amendment on 1 March 2018), insofar as it encompassed an application to correct the name of a party, was a remedial provision which should be given the widest interpretation its language would 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.[59]
[59] Petkov [17], [27] (Buss JA), [102] ‑ [105] (Murphy JA, Martin CJ agreeing), with reference to the observations of McHugh J in Bridge Shipping (259 ‑ 260), with whom Brennan and Deane JJ agreed. Toohey J made similar observations (248). Neither the plurality nor Toohey J referred to s 34 of the Victorian Limitation of Actions Act 1958 as having any bearing on the proper construction of the rule. See also the observations of McLure J in Brandsma [40] ‑ [41].
This court has also accepted that, under the former O 21 r 5, the factors to be taken into account in considering an application to correct the name of a defendant in this context ordinarily include whether:[60]
1.the mistake sought to be corrected was a genuine mistake (including an error made with fault);
2.the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; and
3.it is just, in all the circumstances, to make the amendment.
[60] Petkov [95] - [96] (Murphy JA, Martin CJ agreeing), see also [30] - [31], [36], [53] (Buss JA).
The deletion of former subrules (2) ‑ (5) does not alter the beneficial nature of O 21 r 5, or the scope of the power to include 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. As noted in Belgravia (see [24] above), former subrules (2) ‑ (5) essentially had a limited, confirmatory effect on the proper construction of O 21 r 5, and were otherwise superfluous. The deletion of former subrules (2) ‑ (5) does not provide any basis for reading down the scope of the power in O 21 r 5 as it currently stands. On the contrary, if anything, the amended O 21 r 5 may have a wider operation than its predecessor in that whilst it still remains subject to the specific rules relating to misjoinder and non‑joinder, change of parties by reason of death and consequential orders (O 18 r 6, r 7 and r 8) and by the pleading strike‑out rules (O 20 r 19(2) ‑ (5)), the power is no longer subject to former subrules (2) ‑ (5).
It is unnecessary however to determine whether O 21 r 5 is potentially wider in its operation than its predecessor. For present purposes, it is sufficient to observe that the essential requirement of O 21 r 5 was,[61] and remains, that it is in the interests of justice to grant leave to amend. That is confirmed by the reference in the current O 21 r 5(2) to 'or otherwise may be just'. Further, as the amendment to O 21 r 5 has not cut down the scope of its operation, the current O 21 r 5 attracts the principles and considerations accepted by the court in Petkov.
[61] Petkov [6] (Martin CJ), [53] (Buss JA).
Where, in an appropriate case, the power under O 21 r 5 to amend in this context is enlivened, the observations of McLure J (as her Honour then was) in Brandsma remain apposite, albeit that her Honour was then specifically directing her remarks to the former O 21 r 5(3):[62]
On its proper construction, [O 21 r 5(3)] gives the court the power to order amendment where there has been a mistake in the name of a party. The curious phrase 'notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party' is to be understood in the context of, and to reflect the reasons of Walsh J in J Robertson & Co referred to earlier and those of Dawson J in Bridge Shipping (at 238) where he refers to an amendment as not involving the substitution of a new party 'except in a technical or formal sense'. Whenever a former party and new party exist as separate legal entities there will always be at least a technical substitution. However the authorities clearly establish that that does not of itself prevent amendment under [O 21 r 5(3)]. (emphasis added)
[62] Brandsma [43].
Once the amendment to the name of the defendant is properly made within O 21 r 5, the amendment does not involve the addition or substitution of a party within the meaning of O 18 r 6. That conclusion is consistent with the reasons of Beech J in Lois Nominees referred to by RJE Global. If there is no addition or substitution of a new party, there is no occasion to regard the amendment as a procedure having the effect of circumventing a limitation defence.
A consideration of s 12 and s 13 of the Limitation Act does not require any different conclusion. Those provisions relevantly provide:
12.When actions commence
(1)In this Part a reference to the commencement of an action is a reference to the issue in the appropriate court of a writ or other originating application in relation to the action.
…
13.General limitation period - 6 years
(1)An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.
In this context, 'action' is defined (by s 3) to mean 'any civil proceeding in a court'.
Although 'cause of action' is not defined, there is no doubt that a cause of action which is to be vindicated by civil proceedings inheres in the plaintiff against a particular defendant. The question of whether an action has been commenced against the particular defendant depends on whether and the extent to which the plaintiff has appropriately invoked the procedures of the court to vindicate his or her claim. The procedures of the court are effectuated, relevantly, through the exercise of its inherent jurisdiction and/or the Rules. It is the Rules and/or the court's inherent jurisdiction which determine 'whether the amendment [is or] is not really the substitution of one defendant for another'.[63]

Inherent jurisdiction

[63] Adopting and adapting the language of Walsh J in J Robertson (380).

In our view, there is no reason to suppose that the court's power to amend in its inherent jurisdiction in this context, is more confined than that expressed by the generality of the language in O 21 r 5. In particular, we do not accept the respondent's contentions to the effect that the inherent jurisdiction does not extend (1) to cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the identity of the person who answers that description, and/or (2) to allow, in appropriate circumstances, an amendment in which the name of one legal entity is replaced with the name of another legal entity.[64]
[64] Respondent's submissions [54]; appeal ts 24.
The cases referred to by the respondent do not assist it. In Beardmore Motors Ltd v Birch Bros (Properties) Ltd,[65] the application by the lessee, in the court's inherent jurisdiction, to amend the name of the respondent to its landlord in a protected tenancy case was rejected because the applicant knew of both the name of the respondent and the landlord, and had dealings with each. In the circumstances, the judge could not say that the applicant intended to refer to the landlord, and, indeed, the judge inferred that the applicant intended to sue the named respondent.[66]
[65] Beardmore Motors Ltd v Birch Bros (Properties) Ltd [1959] 1 Ch 298.
[66] Beardmore Motors (304).

In Davies, the plaintiff was originally employed by 'Elsby Brothers - a firm' - and later by 'Elsby Brothers Ltd'. She was injured in an accident at work whilst employed by the company, but issued a writ against the firm. She applied, in the court's inherent jurisdiction, to amend after the expiration of the limitation period to change the name of the defendant to Elsby Brothers Ltd. The court, consisting of Pearce and Devlin LJJ, held that the application should be refused. Although there were differences in emphasis between the two judges, both regarded it as significant that there were two different legal entities, the firm and the company, the writ correctly identified the firm, and the date of the accident not having been given in the writ, the writ did not disclose which entity must have been intended to be sued.[67]
[67] Davies (174 - 175) (Pearce LJ), (176) (Devlin LJ). See also the observations on Davies by Donovan LJ in Whittam v WJ Daniel & Co Ltd [1962] 1 QB 271, 278 ‑ 279.
In Whittam, the plaintiff was injured in 1957 whilst employed by WJ Daniel & Co Ltd. That company had, in 1931, taken over the business of a sole trader who, in turn, had continued to run the business after a dissolution in 1919 of the partnership which had traded under the name of 'WJ Daniels & Co'. The plaintiff issued a writ against 'WJ Daniels & Company (a firm)' and subsequently applied to amend to substitute the name of the defendant to 'WJ Daniel & Co Ltd' at a time after the expiration of the relevant limitation period. The defendant resisted the application to amend on the basis that there was no partnership known as 'WJ Daniels & Co' and that by issuing the writ, the plaintiff effectively sued no one, and to allow the amendment would thereby result in adding or substituting a defendant who would otherwise have the benefit of a limitation defence. The Court of Appeal (Donovan and Danckwerts LJJ) held that the amendment should have been allowed. There were no material differences between the reasons of their Lordships. Danckwerts LJ summarised the position thus:[68]
[I]n the present case there is no other entity to which the description in the writ could be taken to refer … [The defendant's] argument is that it is a description which describes nothing and therefore is an action against nobody, and therefore it would be improper and against the rules to put in the defendant company in place of a person which did not exist. But I cannot accept that argument. It seems to me that this is a case in which the description could only refer to the defendant company and would not be taken by any reasonable person to refer to anybody but the defendant company.
[68] Whittam (282).
None of the above English cases was predicated on a limitation defence being purely procedural.
In Rainbow Spray Irrigation Pty Ltd v Hoette,[69] Walsh J (as his Honour then was) granted leave, under the court's inherent jurisdiction, to amend the name of the plaintiff from the legal entity 'Rainbow Spray Irrigation Pty Ltd' to another legal entity 'Rainbow Spray Sales Pty Ltd'. His Honour held that the power to amend may not be used so as to change the constitution of an action, to make it an action between different parties from those who are the parties to it before the amendment. However, in that case, the amendment sought was one which ought to be regarded as the correction of an error, rather than an attempt to substitute one party for another.[70]
[69] Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440.
[70] Rainbow Spray (1441 ‑ 1442).
In J Robertson & Co Ltd (in liq) v Philips Electrical Pty Ltd,[71] Walsh J allowed a plaintiff to amend the name of a defendant from the legal entity 'Philips Electrical Pty Ltd' to another legal entity 'Philips Industries Pty Ltd' in a context in which it was alleged that to allow the amendment would deprive the other entity of a limitation defence. His Honour evidently relied on the court's inherent jurisdiction, and referred to Devlin LJ's observations in Davies and to Whittam.[72] His Honour observed that, in the case before him, service of the writ was accepted by the resident agent of Philips Electrical Pty Ltd, who was also the resident agent of Philips Industries Pty Ltd.[73] His Honour said:[74]
I think it was to be expected that the resident agent (or any other officer with any knowledge of the affairs of the companies) if he had read through the document, including the statement of claim, would have said: 'It must mean Philips Industries Pty Ltd, but they have got its name wrong'.
[71] J Robertson & Co Ltd (in liq) v Philips Electrical Pty Ltd [1971] ALR 377.
[72] J Robertson (380).
[73] J Robertson (380 - 381).
[74] J Robertson (381).
Bridge Shipping was a case in which the plaintiff engaged Bridge Shipping to arrange for the sea carriage of goods from Brazil to Victoria. Some goods were lost or damaged, and the plaintiff sued Bridge Shipping. Bridge Shipping issued a third party notice against the owner of the vessel, and, after the expiration of the relevant limitation period, applied to amend the name of the person named in the third party notice to the charterer who was the carrier of the goods. Dawson J referred to Rainbow Spray, J Robertson and Whittam, but his Honour does not appear to have suggested that those cases were wrongly decided.[75] Nor, as we would understand it, did his Honour hold that, in the court's inherent jurisdiction, there could never be an amendment to the name of the party if the amendment would involve the substitution of one legal entity for another.[76] Moreover, in finding that the application to amend ought not be made in that particular case, his Honour concluded (as did the plurality and Toohey J[77]) that the defendant intended to join the third party as the owner of the vessel, and that there was no mistake as to the name of the carrier.[78]
[75] Bridge Shipping (239).
[76] Bridge Shipping (240), (245).
[77] Bridge Shipping (251), (261 ‑ 262).
[78] Bridge Shipping (246).
Further, whilst McHugh J in Bridge Shipping referred to the English O 20 r 5(3) as having been 'intended to overcome the decision in cases such as Davies',[79] his Honour decided the case on the basis of the application of the relevant rule. We would not understand his Honour's judgment as intending to delimit the scope of the court's inherent jurisdiction. McHugh J (Brennan & Deane JJ agreeing) held that the rule was not confined to covering only cases of misnomer, clerical error and misdescription. Rather, it extended to cases where a plaintiff, intending to sue a person he or she identified by a particular description, was mistaken as to the name of the person who answers that description.[80] As was held in Petkov, that is also the manner in which O 21 r 5 is to be interpreted.[81]
[79] Bridge Shipping (259).
[80] Bridge Shipping (260 - 261).
[81] Petkov [27] (Buss JA), [105] (Murphy JA, Martin CJ agreeing).

Disposition

In our view, it is apparent that Collgar intended to sue ACS, that the mistake in naming RJE Global as the defendant was a genuine mistake, and that the mistake was not, on an objective basis, misleading or such as to cause any reasonable doubt as to the identity of the defendant Collgar intended to sue. That is so for the following reasons.
First, the writ indorsed with the statement of claim identified the defendant by description as:
(a)an engineering, design and construction company with expertise in electrical cable installation and termination,[82] with its registered office at the address in Morphettville, South Australia;
(b)the party, engaged by Vestas, which performed the electrical cable installation and termination work for the design, procurement, supply, construction, testing and commissioning of 111 wind turbine generators by Vestas for use at Collgar (project), which project works were commenced in June 2010 and completed in October 2011;[83] and
(c)the party which carried out the electrical cable installation and termination work on the project involving (1) connecting the substation to transformer TX111 and transformer TX211, and (2) the preparation for installation of the ABB termination kit.[84]
[82] Statement of claim, par 2; BB 34.
[83] Statement of claim, pars 3 ‑ 5; BB 34.
[84] Statement of claim, pars 7, 15 ‑ 16; BB 35 - 36.
Secondly, the naming of RJE Global as the defendant was not, on an objective basis, misleading or such as to cause any reasonable doubt as to the identity of the defendant intended to be sued. A reasonable person in the position of the directors of RJE Global (Mr Johnson and Mr Cook, who were also directors of ACS), receiving the writ at the principal place of business of RJE Global (also the principal place of business of ACS), would have known, without doubt, that:
1.the defendant named in the writ, RJE Global, was not the entity which answered the description of the defendant in the indorsed statement of claim, given that RJE Global had not even been incorporated at the time of the pleaded electrical works; and
2.the party intended to be sued was RJE (now known as ACS), which had been the subcontractor retained by Vestas to assist with the project works and, in particular, to undertake electrical cable installation and termination work.
Thirdly, the mistake was a genuine one, as attested to by Collgar's solicitor.[85]
[85] GB 1 - 4.
The emails of RJE Global's in‑house counsel dated 9 February and 17 March 2011, insofar as they may be some evidence of what a reasonable person in the position of RJE Global would have understood by the writ, are not inconsistent with the conclusion in [64] above but, rather, tend to support it. The tenor of the emails is that RJE Global's in‑house counsel in 2021 understood that RJE Global did not answer the description of the defendant in the indorsed writ, and that she understood that Collgar was intending to sue ACS, the company involved in supplying electrical work to the project.[86]
[86] GB 226, 247.
It follows from the matters in [44] - [65] above that, in our respectful view, the primary judge misconstrued and misapplied O 21 r 5, and ground 1 of the appeal should be upheld. Ordinarily, this would mean that this court ought to re‑exercise the discretion itself. However, RJE Global contended that the judge expressly found that even if he were wrong on the scope of the power under O 21 r 5 properly construed, the application should be dismissed in any event.[87] In this context, RJE Global referred to the matters referred to in [43] above.
[87] Respondent's submissions, par 83; WB 47.
We would not read the primary decision in the way contended for by RJE Global in this regard. Nevertheless, for present purposes, it is immaterial whether the matters referred to in [43] above are advanced as supplying proper grounds for the judge's exercise of discretion even on the assumption that he misconstrued O 21 r 5, or whether they are treated as matters allegedly pointing to the dismissal of Collgar's application on the re‑exercise of this court's discretion. The matters referred to by RJE Global in [43] above are not proper grounds for justifying the dismissal of the application and otherwise do not assist it.
The matters referred to in points 1 ‑ 3 of [43] above are irrelevant to the exercise of discretion on the proper construction of O 21 r 5. There is no circumvention of a limitation defence, and Collgar always had six years in which to bring the action.
The matter referred to in point 4 of [43] above is largely neutral in its effect. Had RJE Global or ACS positively misled Collgar, that might have been taken into account in favour of Collgar on the question of discretion. However, the absence of misleading conduct by RJE Global and ACS is of no real weight in the circumstances as a consideration favouring the dismissal of the application.
The matters referred to in point 5 of [43] above are to the effect that had Collgar's solicitor not made the error, Collgar would not have been in the position that it was. That may be accepted but, the error having been made (innocently, albeit carelessly), the question remains whether it is just in all the circumstances to grant leave to amend. In our view, it is, particularly in the absence of any material prejudice to ACS.
In relation to the question of prejudice, referred to in point 6 of [43] above, neither ACS nor RJE Global put on any evidence to the effect that if the amendment were allowed, ACS would be prejudiced in defending the action. There has been no material delay between the identification of the error and the application to amend. There is nothing to suggest that ACS is in any materially different position than it would have been in had the writ been issued in the name of ACS as defendant just prior to the expiration of the limitation period.
For these reasons, to the extent that it is necessary to decide ground 2, it should be allowed. Alternatively, we would grant leave to amend in the re‑exercise of the court's discretion.

Conclusion

For these reasons, the appeal should be allowed.
Subject to hearing further from the parties, and putting to one side for the moment questions of costs, the substantive orders should be:
1.The appeal is allowed.
2.Orders 1 and 2 of the orders of Curthoys J made 27 October 2021 in CIV 1054 of 2021 be set aside.
3.The appellant have leave to amend the name of the defendant in the writ of summons in CIV 1054 of 2021 from RJE Global Pty Ltd (ACN 607 859 852) to Australian Contracting Services Pty Ltd (ACN 074 273 779), with such amendment to take effect from 1 February 2021.
4.In the memorandum of appearance filed 23 March 2021 in CIV 1054 of 2021,[88] the reference to 'Defendant RJE Global Pty Ltd (ACN 607 859 852)' is to be read as 'Defendant Australian Contracting Services Pty Ltd (ACN 074 273 779)'.
[88] BB 40.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Murphy
1 NOVEMBER 2022