Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd - [2021] WASC 367

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   COLLGAR WIND FARM PTY LTD -v- RJE GLOBAL PTY LTD [2021] WASC 367
CORAM:   CURTHOYS J
HEARD:   25 JUNE 2021
DELIVERED          :   27 OCTOBER 2021
FILE NO/S:   CIV 1054 of 2021
BETWEEN:   COLLGAR WIND FARM PTY LTD
Plaintiff
AND
RJE GLOBAL PTY LTD
Defendant

Catchwords:

Practice and procedure - Parties - Misdescription - Power to correct mistake in name of party - New cause of action statute-barred by limitation legislation - Whether amendment involves addition or substitution of party or correction of misnomer

Legislation:

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

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	D J Pratt
Defendant	:	B A Millar

Solicitors:

Plaintiff	:	McCabe Curwood
Defendant	:	Jackson McDonald

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

Alinta 2000 Ltd v Petkov [2012] WASCA 258
Attorney-General (UK) v Sorati [1969] VR 88
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Brandsma & Crockett v Heindal Pty Ltd [2002] WASCA 96
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Davies v Elsby Brothers Ltd [1961] 1 WLR 170
Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810
Holmes v Permanent Trustee Co of New South Wales Ltd [1932] ALR 164; (1932) 47 CLR 113
Hubbard Association of Scientologists International v Attorney General (Vic) [1976] VR 119
J Robertson & Co Ltd (in liq) v Ferguson Tranformers Pty Ltd [1971] ALR 377; (1970) 44 ALJR 441
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Mitchell v Harris Engineering Company Ltd [1967] 2 QB 703
Morgan v Banning (1999) 20 WAR 474
Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240
'Sardinia Sulcis' and 'Al Tawwab' [1991] 1 Lloyd's Rep 201
Weldon v Neal (1887) 19 QBD 394

CURTHOYS J:

Introduction

On 1 February 2021, the plaintiff, Collgar Wind Farm Pty Ltd (Collgar), issued a writ naming RJE Global Pty Ltd (RJE Global) as the defendant.
By amended application dated 20 April 2021 Collgar sought orders that:
1.Pursuant to Order 21 Rule 5 of the Rules of the Supreme Court the Plaintiff have leave to amend the name of the Defendant from RJE Global Pty Ltd (ACN 607 869 852) to Australian Contracting Services Pty Ltd (ACN 074 273 779).
2.In the alternative, pursuant to the inherent jurisdiction of the Court the Plaintiff have leave to amend the name of the Defendant from RJE Global Pty Ltd (ACN 607 869 852) to Australian Contracting Services Pty Ltd (ACN 074 273 779).
The application was supported by affidavits of Hugh Mark O'Sullivan sworn 18 February 2021, 18 March 2021 and 28 March 2021.
In the event that the amendment is not allowed under O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules), Collgar's action against Australian Contracting Services Pty Ltd (Australian Contracting Services) will barred by the Limitation Act 2005 (WA).

Background

In May 2009, Collgar engaged Vestas-Australian Wind Technology Pty Ltd (Vestas) to provide 111 wind turbine generators for use at Collgar's wind farm. The works commenced in June 2010 and were completed in October 2011.
Vestas retained Robin Johnson Engineering Pty Ltd (now known as Australian Contracting Services) as a subcontractor to assist with the works and in particular, to undertake electrical cable installation and termination work.
Collgar alleges that in February 2015 there were two separate failures in the cables feeding two transformers.
On 1 February 2021, Collgar issued a writ and statement of claim claiming damages against the defendant, RJE Global. Collgar identified RJE Global as the entity who undertook the cable installation and termination work and alleged that the cable failures occurred due to negligence on the part of an agent or employee of RJE Global.[1]
[1] Statement of claim filed 1 February 2021 [12], [16] (Statement of Claim).
Collgar submitted that in preparing the writ, its solicitor relied upon expert reports that purportedly identified the entity that undertook the cable installation and termination work as 'RJE'. The solicitor conducted a company search and wrongly identified RJE Global as the entity which met that description.[2]
[2] Plaintiff's submissions in support of application to amend name of defendant filed 20 April 2021 [16] (Plaintiff's Submissions).
Upon receipt of the writ, in-house counsel for RJE Global advised Collgar's solicitor that RJE Global did not undertake the works referred to in the statement of claim and believed that Robin Johnson Engineering Pty Ltd was involved in the project.[3]
[3] Affidavit of Hugh O'Sullivan sworn 22 February 2021, attachment HO7, 226 (First O'Sullivan Affidavit).
RJE Global was not incorporated until 25 August 2016 and therefore did not exist at the date of the works.[4]
[4] First O'Sullivan Affidavit, attachment HO6, 213 - 214.
Collgar seeks to amend the name of the defendant from RJE Global to Australian Contracting Services pursuant to O 21 r 5 of the Rules.

Order 21 r 5

Order 21 r 5 provides:
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 provided:
Amending writ or pleading with leave
(1)Subject to -
(a)      Order 18 rules 6, 7 and 8; and
(b)      Order 20 rules 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.
Order 21 r 5 was amended following the decision of the Court of Appeal in Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[5]
[5] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127.
At issue in this application is the effect of this amendment to O 21 r 5 and consequently the present scope of the amendment power.
Collgar argues that the amendment to O 21 r 5 has not altered the court's power as it existed under the previous r 5 and that the same principles apply.
RJE Global and the putative defendant, Australian Contracting Services, argue that by reason of the amendment the court does not have power to allow the amendment sought by Collgar.
Collgar's application is the first time that the issue of the extent of the court's power to amend the name of a party under O 21 r 5 has been raised since the decision in Belgravia and the amendment to O 21 r 5. There is no authority that I am aware of that has considered the scope of O 21 r 5 since its amendment.
To fully appreciate the amendment's implications, it is necessary to analyse how the text of the previous rule has been considered here and in England. In doing so, it is important to have regard to the text of the particular rule and the surrounding legislative context that existed at the time the provision was considered.

History of the amendment rules

It was once assumed that the amendment of a writ, if allowed, takes effect as if it had been included in the original writ. That is, the amendment would relate back to the date of service of the original pleading. To overcome the potential injustice of this 'relation back' doctrine, it was decided in Weldon v Neal that an amendment ought not be allowed to defeat a limitation period:[6]
We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust.
[6] Weldon v Neal (1887) 19 QBD 394, 395 (Lord Esher MR).
As a result of the decision in Belgravia, the doctrine of relation back no longer applies in Western Australia, with the effect that the rule in Weldon v Neal has no continued application.[7] However, as I will discuss further below, it remains the case that in this jurisdiction, procedural rules cannot be applied to have the effect of overriding limitation legislation.[8]
[7] Belgravia [27].
[8] Belgravia [34] ‑ [36]; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [99] - [100] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); Morgan v Banning (1999) 20 WAR 474, 483.
In Davies v Elsby Brothers Ltd,[9] the plaintiff sought to amend the name of the defendant from a firm to a company by the addition of 'Ltd' after the limitation period had expired.[10] The plaintiff had issued a writ against 'Elsby Brothers (a firm)' for damages for negligence in respect of injuries sustained in the course of his employment in 1956. The date of the alleged negligence was not stated in the writ. Originally, the plaintiff had been employed by the firm of Elsby Brothers, but in 1955 that firm's business was taken over by Elsby Brothers Ltd. The plaintiff's cause of action became statute‑barred on 20 March 1959, three years after it accrued, by virtue of the Limitation Act 1939 (UK).
[9] Davies v Elsby Brothers Ltd [1961] 1 WLR 170.
[10] Limitation Act 1939 (UK) s 2(1) as amended by Law Reform (Limitation of Actions, etc) Act 1954 (UK), s 2(1).
At the relevant time O 16 r 2 of the Rules of the Supreme Court 1883 (UK) (English Rules) provided:
Action in name of wrong plaintiff
Where an action has been commenced in the name of the wrong person as plaintiff or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or a judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as may seem just.
Rule 11 of O 16 provided:
Misjoinder and nonjoinder. Striking out and adding parties. Consent of plaintiff or next friend
No cause or matter shall be defeated by reason of the misjoinder or non‑joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as a next friend of a plaintiff under any disability, without his consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.
The English the Court of Appeal held that whether the writ could be amended by the addition of 'Ltd' rested on whether the amendment amounted to the addition or substitution of a party or the mere correction of a misnomer. Devlin LJ said:[11]
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.
[11] Davies (676).
The court refused the application to amend because the amendment involved the addition of a party and not the correction of a misnomer. As Pearce LJ said:[12]
[T]he entity of the limited company is not contained in the writ, and that to add the word 'Ltd' would be to add a new party to this action. It is not correct to say that the company has taken the place of the firm. The firm no doubt assigned its business to the company; but it co-existed with the company …
If one of the deciding factors be whether the defendants, on looking at the writ, must have known that the writ, though the name was inaccurate, was addressed to them, then in my view it was not possible to say the writ must have been intended for the company. The date of the accident was not specified in the writ. It was possible that the accident referred to in the writ was one that occurred while the firm was still carrying on the business.
[12] Davies (674).
The principle that emerges from Davies is that under O 16 r 2 an amendment will only be permitted if the amendment involves the correction of a mere misnomer but not the substitution of a party.[13]
[13] Davies (676) (Devlin LJ).
As Lloyd J stated in 'Sardinia Sulcis' and 'Al Tawwab':[14]
In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test.
[14] 'Sardinia Sulcis' and 'Al Tawwab' [1991] 1 Lloyd's Rep 201, 207 (The 'Al Tawwab').
In considering whether an amendment is to correct a mere misnomer a relevant question is whether a person would say to themselves 'of course it must mean me, but they "have got my name wrong"'. If so, then there is a case of mere misnomer. However, the question remains whether it is a misnomer not whether 'they have got my name wrong'.
In 1965, a revised version of the English Rules was enacted. The equivalent to O 16 r 2 was now found in O 20 r 5:
Amendment of writ or pleading with leave
(1)Subject to Order 15 rules 6, 7 and 8 and 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 paragraphs (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 paragraph if it thinks it just to do so.
(3)An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.
The previous O 16 r 11 relating to misjoinder and nonjoinder of parties found its way into O 15 r 6.
Order 20 r 5(3) extended the scope of the previous rule to permit the substitution of a party in circumstances beyond the correction of a misnomer. As Lord Denning observed in Mitchell v Harris Engineering Company Ltd,[15] the creation of r 5(3) sought to remove 'the injustice caused by the decision in Davies'.
[15] Mitchell v Harris Engineering Company Ltd [1967] 2 QB 703, 719.
There was no concomitant amendment to the relevant provisions of the Limitation Act (UK) at the time.
It is important to note that the language of the rule had to be expanded to permit the substitution of a new party.
In November 1980, a new Limitation Act (UK) was enacted. Section 35 widened the court's jurisdiction to allow the amendment of pleadings that would otherwise be statute-barred:[16]
[16] See Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240 [24] - [30].
New claims in pending actions: rules of court
(1)For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced -
(a)in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b)in the case of any other new claim, on the same date as the original action.
(2)In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either -
(a)the addition or substitution of a new cause of action; or
(b)the addition or substitution of a new party;
and 'third party proceedings' means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party brining the proceedings.
(3)Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set‑off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set‑off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.
(4)Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5)The conditions referred to in subsection (4) above are the following -
(a)in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
(b)in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
(6)The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either -
(a)the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or
(b)any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.
…
(9)In this section 'rules of court' means rules made under s 99 of the Supreme Court of Judicature (Consolidation) Act 1925 or s 102 of the County Courts Act 1959 (as the case may require).[17]
[17] Section 35(9) has since been repealed by Supreme Court Act 1981 (UK).

The revised Limitation Act (UK) provided power to permit the substitution of a new party.
The Victorian rule relating to the amendment of the name of a party was considered by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA.[18] In that case goods had been damaged in transit by sea from Brazil to Melbourne. The owner of the goods sued the defendant who had been 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 to substitute the charterer as third party in place of the owner.
[18] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231.
The issue in the appeal was whether the Victorian rule permitted the substitution of another person named as a defendant in the action after the expiration of the relevant limitation period for bringing an action against the first person.[19]
[19] Bridge Shipping (252) (McHugh J).
At the relevant time r 36.01 of the General Rules of Procedure in Civil Proceedings 1986 (Vic) (Victorian Rules) 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.
(2)In this Order 'document' includes originating process, an indorsement of claim on originating process and a pleading.
(3)An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.
(4)A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.
(5)Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6)The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7)For the purpose of paragraph (6) 'any other party to the proceeding' includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party.
(8)Paragraph (6) shall, with any necessary modification, apply to an application under Rule 14.03(2).
(9)Paragraph (1) shall not apply to the amendment of a judgment or order.
Rule 36.01 was introduced to the Victorian Rules in the form set out immediately above in 1986. Prior to the insertion of this rule, an amendment to substitute a party was permitted only in cases of misnomer, misdescription of clerical error.[20] Rule 36.01 now expressly permitted the substitution of a new party in extended circumstances.
[20] Bridge Shipping (254) (McHugh J); see also Hubbard Association of Scientologists International v Attorney General (Vic) [1976] VR 119, 126 - 128; Attorney-General (UK) v Sorati [1969] VR 88, 94 - 95.
Around the same time as the amendment to the Victorian Rules, the Limitation of Actions Act 1958 (Vic) was amended to abrogate the rule in Weldon v Neal in Victoria. The amendment introduced the following provision:
34.Abrogation of rule in Weldon v Neal (1887) 19 QBD 394
(1)If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.
(2)This section does not apply to an amendment in a proceeding commenced before 1 January 1987.
McHugh J (Brennan and Deane JJ agreeing) held that the scope of r 36.01 should not be given the same restricted meaning as that provided by the English Court of Appeal in Davies. The rule was intended to apply to more than simply misnomers, particularly r 36.01(4).[21] As his Honour stated:[22]

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.[23] 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 (footnote added).
[21] Bridge Shipping (259).
[22] Bridge Shipping (260 - 261).
[23] Holmes v Permanent Trustee Co of New South Wales Ltd [1932] ALR 164; (1932) 47 CLR 113, 119.

His Honour cited Lloyd LJ in The 'Al Tawwab':[24]
Thus, if in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise.
[24] The 'Al Tawwab' (207).
Notwithstanding the broad interpretation of the court's amendment power, McHugh J observed that r 36.01(4) imposes certain limitations on a person's right to amend:[25]
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).
[25] Bridge Shipping (261).
Dawson J discussed the implications of the amendments to the Victorian Rules and Limitation of Actions Act for the exercise of the court's discretion to amend:[26]
There were limits upon the exercise of the inherent jurisdiction. One was thought to be the rule in Weldon v Neal. That rule is now abrogated by r 36.01(6) (with the backing of s 34 of the Limitation of Actions Act). Since the rule in Weldon v Neal extended only to the amendment of causes of action and not parties, it is made clear by r 36.01(7) that the principle lying behind the abrogation of the rule in Weldon v Neal is extended to the amendment of parties: where the amendment amounts merely to the correction of a mistake in the name of a party, the expiry of a limitation period is not to stand in the way of the amendment if any other party to the proceeding would not be prejudiced in a way that could not be fairly met by an adjournment, an award of costs or otherwise. In order to make it clear that the amendment of a party under r 36.01(4) may not raise a defence based upon a limitation period, r 36.01(5) re-establishes the relation back of the amendment to the commencement of the proceedings.
[26] Bridge Shipping (240 - 241).
Further, like McHugh J, his Honour drew a distinction between a mistake as to name and a mistake as to identity:[27]
A mistake in the name of a party is not, to my mind, the same thing as a mistake in the identity of that party. In other words, one may intend to sue the landlord but be mistaken in the belief that X is the landlord. That is not to mistake the name of X, but to mistake the identity of the landlord.
[27] Bridge Shipping (242).
I will return to the judgment of Dawson J further below in ascertaining whether the name of the defendant can be corrected under O 21 r 5.

Limitation Act 2005 (WA)

Section 13 of the Limitation Act provides:
(1)An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.
(2)Subsection (1) does not apply to an action if Division 3 provides for a different limitation period for that action.
Collgar has not submitted that div 3 applies to the facts of this case.
There are no provisions in the Limitation Act similar to the Victorian or UK limitation legislation referred to above which permit the substitution of a party after the expiration of a limitation period.
In considering the scope of O 21 r 5 it is important to bear in mind that the limitation period provided by s 13 of the Limitation Act is a rule of substantive law.[28]
[28] John Pfeiffer [99] - [100] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
As the Court of Appeal held in Belgravia, the power prescribed by the Rules in O 21 r 5 cannot be utilised to circumvent the Limitation Act and override a party's substantive defence provided by that legislation.[29] This reasoning applies with equal force to a general power as expressed in the Rules or one within the court's inherent jurisdiction.
[29] Belgravia [34] - [39], [43].
Whatever the scope of the power under O 21 r 5, where the effect of an amendment is to substitute a new party, the power cannot be used to overcome the relevant period of limitation.

The Rules pre-amendment

Order 21 r 5 as it existed prior to 1 March 2018 is set out above.[30] The Court of Appeal summarised the provision in Belgravia:[31]
Subrule (1) of the rule confers a general power on the court to permit a writ to be amended at any stage of the proceedings.
Subrule (2), and the specific instances in which that power may be exercised and for which provision is made in subrules (3), (4) and (5), are all concerned with the circumstance in which an application for leave is made after any relevant period of limitation current at the date of the issue of the writ has expired between the issue of the writ and the application to amend. It is clear that all four paragraphs of the rule presuppose the operation of the doctrine of 'relation back', which assumed that any amendment allowed in the exercise of the general power conferred by subrule (1) would take effect as if included on the original writ. That is the doctrine which underpins the rule in Weldon v Neal, which is based on the avoidance of prejudice to defendants as a result of being deprived of a limitation defence because any amendment allowed will be taken to relate back to the date of the issue of the writ. As will be seen, authoritative decisions of this court have had the effect that the doctrine of relation back no longer applies in Western Australia, if it ever did, with the result that the rule in Weldon v Neal has no continuing application and subrules (2) - (5) of O 21 r 5 have little or no continuing utility.
[30] See [14].
[31] Belgravia [26] - [27].
In rejecting the operation of any 'relation back' of an amendment and by extension the rule in Weldon v Neal, the court cited the observations of Wheeler J in Morgan v Banning.[32] The court endorsed her Honour's views in relation to amendments adding a cause of action barred by a statutory limitation period:[33]
[I]f the defective indorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time barred. Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule of 'relation back' or otherwise.
[32] Morgan v Banning (480 - 483) as cited by the Court of Appeal in Belgravia [33] - [36].
[33] Belgravia [34] quoting Wheeler J in Morgan v Banning (483).
The decision in Belgravia underlines the primacy of the Limitation Act over the Rules. The court affirmed that an action instituted out of time is able to be defeated by the Limitation Act, which the court has no power to override through procedural rules.[34]
[34] Belgravia [27], [34] - [36].
Accordingly, where the effect of an amendment is to add a new cause of action after the time specified for the commencement of that action in a limitation provision, no doctrine of relation back or rule of court can preclude the defendant relying upon a limitation defence, which should ordinarily be determined at trial.[35]
[35] Belgravia [43].
Although this application concerns the amendment of the name of a party, rather than adding a cause of action, it remains the fact that the effect of the amendment, if permitted, may be to defeat a party's substantive rights under the Limitation Act.

The Rules post-amendment

As a result of the decision in Belgravia, O 21 r 5 was substantially amended in February 2018 with effect from 1 March 2018. The amendment formally deleted the previous rule and replaced it with a new rule. Order 21 r 5 now provides:
Amending writ or pleading with leave
(1)This rule is subject to -
(a) Order 18 rules 6, 7 and 8; and
(b) Order 20 rules 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.
In effect, the amendment deleted subrules (2) - (5) and moved the final words of subrule (1) to subrule (2). This subrule was itself amended by inserting the words 'without determining whether any relevant period of limitation has expired'.
Collgar correctly submitted that O 21 r 5 in the form it was in prior to March 2018 was based on the English rule. Consequently, statements of principle in relation to the English rule such as those made by McHugh J in Bridge Shipping apply equally to O 21 r 5 as it stood prior to March 2018.
However, since the amendment of O 21 r 5, statements made by the High Court in Bridge Shipping and subsequent authorities relying on that decision should be approached with caution.
As RJE Global correctly submitted, the expanded ambit of the power to correct 'a mistake in the name of a party' that the High Court held was permitted under the text of the previous rules[36] is not available or relevant to this case. Therefore, the statement of McHugh J that the relevant rule 'should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also those where the plaintiff, intending to sue a person identified by a particular description, was mistaken as to the name of the person who answered that description',[37] does not apply to the present case.
[36] Bridge Shipping (260 - 261) (McHugh J).
[37] Bridge Shipping (261).
Collgar's submission that the court has an inherent jurisdiction to permit the amendment of the name of party is correct. However, a plaintiff cannot circumvent the substantive provisions of the Limitation Act by relying on the court's inherent jurisdiction. The statements of McHugh J in Bridge Shipping need to be seen in their context as they relate to an expanded power of amendment in the relevant rule, not an expanded power of amendment under the court’s inherent jurisdiction.
Collgar correctly submitted that O 21 r 5 as it existed prior to amendment was a remedial provision and should be given the widest possible interpretation.[38] However, that does not permit one to read in words that do not exist in the current rule or to use it to overcome the substantive provisions of the Limitation Act.
[38] See Bridge Shipping (260) (McHugh J).
Collgar made the bold submission that the amendment to O 21 r 5 does not affect the application of the principles arising from Bridge Shipping and Belgravia nor means that subrule (2) is now to be read as narrowing the circumstances in which a plaintiff is permitted to amend the name of a party. Collgar provides three reasons for this submission:[39]
(1)The power to amend under the former O 21 r 5 was created by the words in r 5(1) which are now in r 5(2). The former r 5(2) and r 5(3) did not create the power to amend (which was contained in r 5(1)), they merely specified the manner in which the power was to be exercised in particular cases. Accordingly, there is nothing in the recission of subrules (2) - (5) that warrants a reading down of the circumstances in which the power formerly contained in r 5(1) and now in r 5(2) may be exercised.
(2)At least one of the purposes of O 21 r 5 remains to overcome injustices which arose from the test laid down in Davies and therefore to broaden the circumstances in which an amendment to correct the name of a defendant (even if that has the effect of substituting a new defendant) will be permitted.
(3)There is nothing in Belgravia which suggests that the previous decisions of the court in Brandsma & Crockett v Heindal Pty Ltd[40] and Alinta 2000 Ltd v Petkov[41] in relation to amendments to the name of a party should not be followed.
[39] Plaintiff's Submissions [13].
[40] Brandsma & Crockett v Heindal Pty Ltd [2002] WASCA 96.
[41] Alinta 2000Ltd v Petkov [2012] WASCA 258.
Collgar also submitted that the discretion to amend the name of a party under O 21 r 5(2) in its current form remains subject to the court's discretion and the interests of justice.[42]
[42] Plaintiff's Submissions [14].
The critical problem for Collgar is that in the absence of an express power in the Rules to overcome the provisions of the Limitation Act, and more importantly, in the absence of an express power conferred by the Limitation Act, there is no power to defeat the substantive provisions of that Act.
It is incorrect to submit that there is nothing in the recission of subrules (2) - (5) that warrants a reading down of the circumstances in which the power may be exercised.
The purported effect of subrules (2) - (5) was to provide an express power to amend after a limitation period had expired. The effect of their recission was to remove the purported express power. In effect, the position in relation to the amendment or substitution of a party was restored to that as stated in Davies.
There is accordingly no basis for the proposition that one of the purposes of the rule is to overcome injustice.
The court's decision in Belgravia expressly recognises that subrules (2) - (5) have no effect.
A court cannot simply ignore the fact that the Rules have been amended, which is in effect what Collgar suggests.

The present test

By reason of the deletion of subrules (2) - (5), the relevant test as to whether the court should allow an amendment of a party has returned to that stated by Pearce LJ in Davies.[43] That test is whether the amendment involves the addition or substitution of a party, or the correction of a misnomer. An amendment will only be allowed in the latter case.
[43] Davies (674) (Pearce LJ).
In J Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd,[44] Walsh J applied the test set out in Davies and said further that:
a misdescription of a corporate body is capable of being regarded as a mere misnomer and of being corrected by amendment in the same way as the misnomer of a natural person ... It must be acknowledged, however, that when, as in the present case, there were two companies in existence to which the writ could refer, it is more difficult to regard the name of one of them, set out in the writ, as being a misnomer, than it would be if there were no other entity in existence than the one to which the writ was intended to refer.
[44] J Robertson & Co Ltd (in liq) v Ferguson Tranformers Pty Ltd [1971] ALR 377; (1970) 44 ALJR 441, 443.

The test in Davies offers a useful device for determining whether the court should allow an amendment. However, the fundamental question in applying this test is whether a misnomer has in fact occurred. RJE Global submitted that the judgment of Dawson J in Bridge Shipping provides an authoritative consideration of the relevant principles to be applied in this respect.[45] The reason for this submission is that Dawson J in effect treated the power conferred by the relevant rule as being analogous to the inherent power to correct for a misnomer, misdescription or clerical error. Dawson J therefore offered a somewhat narrower interpretation of the amendment power in the relevant rule than that proposed by the majority.
[45] Defendant's submissions opposing application to amend name of defendant filed 30 April 2021 [27] (Defendant's Submissions).
Dawson J sought to draw a distinction between the correction of a misnomer or misdescription and the addition or substitution of a party:[46]
The correction of a misnomer or misdescription of a party does not involve the substitution of a new party except in a technical or formal sense since the party after the correction is the same person as was misnamed or misdescribed. In such a case, no question of defeating a statute of limitation arises.
[46] Bridge Shipping (238 - 239).
A true correction of a misnomer or misdescription would not have the effect of defeating a statutory limitation period since the result is the correction of an error in the naming of the true party. Where the effect of a correction is to substitute a new party however, the amendment will not defeat the limitation period.
His Honour also endorsed the formulation of the distinction made by Donaldson LJ in Evans Constructions Co Ltd v Charrington & Co Ltd:[47]
In applying [O 20 r 5(3) of the English Rules] 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.[48]
[47] Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810, 821. This decision was made after his Honour's decision in Davies and after the relevant English rule had been amended to overcome the difficulties presented by that earlier case.
[48] This statement of principle was also referred to with apparent approval by Murphy JA (Martin CJ agreeing) in Alinta 2000 [98] - [99].
Dawson J then stated:[49]
A mistake in the name of a party is not, to my mind, the same thing as a mistake in the identity of that party. In other words, one may intend to sue the landlord but be mistaken in the belief that X is the landlord. That is not to mistake the name of X, but to mistake the identity of the landlord.
[49] Bridge Shipping (242).
There are times where it is difficult to determine whether there is a mistake in name or a mistake in identity. Dawson J said that this question can be resolved by:[50]
asking whether, in all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed. If so, then there is a misnomer or misdescription and the rule applies notwithstanding that, as a matter of formality, the amendment results in the substitution of another entity. If not, and the effect of the amendment would be, not to correct the name of the party, but to alter the identity of the party, then that rule does not apply.
[50] Bridge Shipping (245).
His Honour's observations as to the distinction between a mistake in name and mistake in identity help enliven the test in Davies. I consider these statements of law applicable to the present case.

Does the application satisfy the test for amendment?

Collgar's submissions

Collgar submitted that:
(1)It intended to sue the entity which undertook electrical cable installation and termination at its wind farm between June 2010 and October 2011;[51]
(2)Its solicitor, Mr O'Sullivan, relied upon expert reports as to the cause of the failure identifying the entity which undertook those works as 'RJE'.[52]
(3)Mr O'Sullivan performed a company search and wrongly identified RJE Global as the entity which met that description and proceeded to file and serve the writ and statement of claim on RJE Global;[53]
(4)RJE Global was not incorporated until 25 August 2016 and therefore did not exist as at the date of the works;[54] and
(5)Upon receipt of the writ, in-house counsel for RJE Global, Ms Lynch, identified from the statement of claim that the wrong defendant had been sued and that Collgar intended to sue Australian Contracting Services,[55] which was formerly known as Robin Johnson Enterprises Pty Ltd.[56]
[51] Statement of Claim [1], [3] - [5], [7]; First O'Sullivan Affidavit [13].
[52] First O'Sullivan Affidavit [5] - [8].
[53] First O'Sullivan Affidavit [11] - [13].
[54] First O'Sullivan Affidavit, attachment HO6, 213 - 214.
[55] First O'Sullivan Affidavit, attachment HO7, 226.
[56] First O'Sullivan Affidavit, attachment HO9, 241 - 244.
Collgar submitted that on these facts, the present matter meets the test for amendment in the court's inherent jurisdiction. In particular, it contended that consistent with the test in Davies, a reasonable person in the position of the Australian Contracting Services would upon receiving the writ have understood it to be intended for them as Ms Lynch readily appreciated.[57] It sought to distinguish the circumstances of this case from those in Davies on the basis that the statement of claim filed in this matter clearly identified the date of the works. Further, it argued that no difficulty of the kind averted to by Walsh J in J Robertson & Co Ltd (in liq) arose because RJE Global did not exist at the time of the works and therefore there was only one company in existence at the relevant time meeting the description 'RJE'.
[57] First O'Sullivan Affidavit, attachment HO7, 226.
Collgar also relied on the words of the former O 21 r 5(3) to submit that the facts satisfied the requirements for amendment:
(1)there was a genuine mistake on the part of Collgar's solicitor;[58]
(2)for the reasons set out at [84] above, the mistake was not misleading or such as to cause any confusion as to the identity of the party intending to be sued; and
(3)to the extent that there are any costs thrown away by reason of the amendment, that could be cured by an award of costs or the making of an order that the notice of appearance by RJE Global stand as an appearance by Australian Contracting Services.
[58] First O'Sullivan Affidavit [18].
Collgar's statement as to Ms Lynch's reaction to the writ overstates the certainty of her position. The First O'Sullivan Affidavit states that on 9 February 2021, Mr O'Sullivan:[59]
received a telephone call from Madeleine Lynch, a solicitor employed by the named Defendant, RJE Global Pty Ltd. Ms Lynch advised me that the named Defendant did not carry out the electrical cable installation and termination work referred to in the Statement of Claim. Ms Lynch advised that her understanding was that the work was carried out by Australian Contracting Services Pty Ltd (ACN 074 273 779), a company formerly known as Robin Johnson Engineering Pty Ltd.
[59] First O'Sullivan Affidavit [14].
An email of the same date from Ms Lynch states:[60]
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 work was completed.
I believe Robin Johnson may have been involved in that project but I don't think they had a contract with Vestas Australian Wind Technology Pty Ltd.
[60] First O'Sullivan Affidavit, attachment HO7, 226.
It is incorrect to state that upon receipt of the writ, Ms Lynch identified from the statement of claim that the wrong defendant had been sued and that Collgar intended to sue Australian Contracting Services. Ms Lynch was not sure that Australian Contracting Services had a contract with Collgar.

RJE Global's submissions

RJE Global submitted that this is 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 it incorrectly identified as being that entity. Further, RJE Global contended that in any event, the interests of justice do not favour allowing the amendment.[61]
[61] Defendant's Submissions [2].

In support of its submissions, RJE Global argued that it and Australian Contracting Services are two separate legal entities and cannot be said to in effect be the same named party to the action. Therefore, to utilise the power of the court (under O 21 r 5 or in its inherent jurisdiction) to amend the name of RJE Global, in effect 'relates back' the commencement of the action in a manner that overrides Australian Contracting Services' substantive defence provided under the Limitation Act. To allow the amendment in these circumstances, RJE Global contended, is beyond the power of the court.[62]
[62] Defendant's Submissions [32].
Further, in relation to whether the amendment was permitted under the court's inherent jurisdiction, RJE Global relied on the dicta of Dawson J cited above to submit that:[63]
(1)there is a real distinction between suing RJE Global in the mistaken belief that RJE Global is the party who is responsible for the matters complained of and seeking to sue Australian Contracting Services, but mistakenly describing or naming Australian Contracting Services as RJE Global and thereby ending up suing RJE Global instead of Australian Contracting Services. The inherent jurisdiction (and amended O 21 r 5) is designed to correct the latter and not the former category of mistake; and
(2)a mistake in the name of a party is not the same thing as a mistake in the identity of that party. Collgar's solicitor submits that the mistake he made was as to the identity of the correct party; the mistake he made was assuming RJE Global was the entity that performed the works.[64] He did not mistake the name of the entity sued (RJE Global). In other words, Collgar's solicitor may have intended to sue the party who performed the relevant works but was mistaken in the belief that RJE Global was that entity. That is not to mistake the name of the party sued, being RJE Global, but to mistake the identity of the party who performed the relevant works. That is not a mistake falling within the inherent jurisdiction (or amended O 21 r 5).
[63] Defendant's Submissions [33].
[64] First O'Sullivan Affidavit [5] - [12], [18].
As already noted, Collgar submitted that the discretion to amend the name of a party under O 21 r 5(2) remains subject to the court's discretion and the interests of justice. In respect of this point, RJE Global submitted that there is no free-standing power to amend based on whether the interests of justice require it and that Collgar must rely upon the inherent jurisdiction or amended rule.[65]
[65] Defendant's Submissions [37].
RJE Global contended that the six-year limitation period and the limited circumstances in which an extension may be allowed under the Limitation Act are indicative of the legislature's intention of what is in the overall interests of justice.[66] Collgar's proposed amendment does not fall within the limited circumstances provided for in pt 3 of the Limitation Act.
[66] Defendant's Submissions [38].
Indeed, it is not clear how a mistake in identifying the correct party should be treated any differently and be seen as in the interests of justice to amend, whether the mistake 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 be sued, or otherwise.
RJE Global further submitted:[67]
The plaintiff's insurers had six years to decide which party to sue. They delayed instructing solicitors until the last minute (presumably well aware that a limitation period was due to expire). The plaintiff itself has been indemnified for its losses the subject of the action (its insurers have been notified under O 9A and are presumably exercising rights of subrogation).[68]
The plaintiff/its insurers was not led to believe by the putative defendant (or the named defendant RJE Global) that it had not made an error. In fact, they were informed that they had potentially made an error the day after the writ was served on RJE Global (by that party's inhouse lawyer).
The plaintiff/its insurers could at that time have carried out more [thorough] searches (which they subsequently did so as to realise their error) and could have simply issued fresh proceedings naming [Australian Contracting Services] as defendant prior to the limitation period expiring. They did not do so and the consequences are of their own making.

Findings

[67] Defendant's Submissions [40] - [42].

[68] First O'Sullivan Affidavit [7] - [9].

I accept RJE Global's submissions.
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 Australian Contracting Services 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.
Accordingly, the application should be dismissed.

Orders

I make the following orders:
(1)The plaintiff's amended application for orders pursuant to O 21 r 5 of the Rules of the Supreme Court 1971 (WA) and in the alternative pursuant to the inherent jurisdiction of the court dated 20 April 2021 be dismissed.
(2)The action against the defendant be dismissed.
(3)The plaintiff pay the defendant's and the putative defendant's costs of the proceedings to date to be taxed if not agreed.
(4)The plaintiff pay the defendant's and the putative defendant's costs of this application to be taxed if not agreed and without regard to the limit in Item 10(a) of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA) subject to the hourly rate for counsel.
(5)The defendant's and the putative defendant's costs be taxed as one bill.
(6)There be no order as to the costs of the hearing of 31 May 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Associate to the Honourable Justice Curthoys
27 OCTOBER 2021