Cooke v Rixon
[2016] ACTSC 236
•9 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cooke v Rixon |
Citation: | [2016] ACTSC 236 |
Hearing Date: | 2 August 2016 |
DecisionDate: | 9 August 2016 |
Before: | Mossop AsJ |
Decision: | See [39] |
Catchwords: | PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim to substitute nominal defendant as defendant – Claim involving a hit and run – Whether a mistake made in the name or identity of a party – Application of general principles dependent on evidence in particular case – No mistake as to identity – Mistake at to which vehicle was responsible – Therefore no power to amend under r 503(2) of the Court Procedures Rules 2006 (ACT) – No leave granted to amend application in proceeding to join nominal defendant – Application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 220, 230, 242, 502, 503, 507 Federal Court Rules 2011 (Cth), r 8.21(1) Uniform Civil Procedure Rules 1999 (Qld), r 376 |
Cases Cited: | Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Davies v Barancewicz (2011) 5 ACTLR 305 Laing v Victoria (2005) 144 FCR 462 |
Parties: | Hamid Cooke (Plaintiff) Paul Rixon (First Defendant) Insurance Australia Limited (Second Defendant) Nominal Defendant of the ACT (Proposed Defendant) |
Representation: | Counsel Mr A Muller (Plaintiff) Mr J Pappas (First and Second Defendants) Mr R Clynes (Proposed Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth (First and Second Defendants) Minter Ellison (Proposed Defendant) | |
File Number: | SC 35 of 2014 |
MOSSOP AsJ:
The application
By application in proceeding dated 1 July 2016 the plaintiff has sought leave pursuant to rr 503 and 507 of the Court Procedures Rules 2006 (ACT) (CPR) to amend his originating claim and statement of claim so as to substitute the nominal defendant as the defendant in these proceedings.
That application was made in the context of an earlier application in proceeding by the defendant dated 24 March 2016, by which the defendants sought summary judgment in their favour or alternatively that the plaintiff’s claim be struck out. That application was adjourned part heard on the plaintiff’s application so that he could bring the present application.
Evidence
On the application the plaintiff read two affidavits of his solicitor Mr Madden dated 9 June 2016 and 1 July 2016. The nominal defendant, which had been served with the application, appeared by counsel to oppose the application and relied upon the affidavit of its solicitor, Ms Bentley, dated 25 July 2016. A number of exhibits were also tendered. I also treated as evidence on the application an affidavit that had been previously read by the defendant in the proceedings in relation to its application dated 24 February 2016, as that provided the background to, and an explanation for, the plaintiff’s application.
The plaintiff alleged that in the early hours of 2 February 2011 he was cycling between his home and a friend’s house when his bicycle was struck by a vehicle exiting through the roundabout at the intersection of Box Hill Avenue and Tharwa Drive in the suburb of Conder. When he was spoken to by police officers at the scene of the accident, the plaintiff was unable to identify the vehicle or the driver. He recalled that after he got up following the collision, a male person walked up to him and asked if he was all right. He was Caucasian, had the appearance of a tradesman and was wearing a fluorescent yellow and light green shirt and Caterpillar brand work boots. He was driving a station wagon. I will refer to this person as the tradesman.
The police report identified that there were two witnesses to the plaintiff lying on the road. The first told police that he did not see the accident. He could not identify the vehicle that hit the plaintiff. The second said that he drove past the plaintiff and saw the tradesman speaking to the plaintiff. The tradesman was possibly driving an older boxy Nissan Skyline or Nissan Pintara station wagon. He turned around and drove back to render assistance and the tradesman had since departed. He gave a description of the tradesman consistent with the description given by the plaintiff.
In December 2011 and February 2012 the plaintiff saw a vehicle consistent with the vehicle seen at the scene of the accident and recognised the person driving it as the tradesman. In December 2011 he recorded the registration of that vehicle. In February 2012 when he saw the vehicle again he followed it to a particular address in Conder. He then attended the Tuggeranong police station and reported his identification of the vehicle. In a signed statement made on 10 February 2012 he recorded that when he was on the ground after the accident he saw the rear of a white or grey station wagon stop further up the road. He was then approached by the tradesman.
After receiving notice of the claim, an investigator retained by the second defendant spoke again to the second witness to the accident. He said that when he saw the plaintiff on the road he saw a tray back vehicle exiting the roundabout, but that he could not describe the vehicle because it was still dark.
The difficulty that these circumstances pose for the plaintiff is that he has sued the tradesman who the plaintiff believed was the driver of the vehicle that hit him. However, he is unable to positively identify that vehicle as the one that hit him and the evidence available from the second witness is consistent with another vehicle, being the tray back, being the one that struck the plaintiff. It is in those circumstances that the plaintiff has now sought, instead of suing the defendants, to sue the nominal defendant which is responsible in circumstances where a personal injury is caused by a motor vehicle accident in the ACT involving a motor vehicle that, after reasonable inquiry and search, cannot be identified: Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 62-63.
Submissions
Although the position adopted by the plaintiff underwent some evolution during the course of oral submissions, the position ultimately adopted was that:
(a)in the circumstances there was a reasonable explanation for the application being made now and a reasonable basis for the claim against the nominal defendant;
(b)the plaintiff’s claim was governed by s 16A of the Limitation Act 1985 (ACT);
(c)it was open to make an amendment to the identity of the defendant pursuant to r 503(2) of the CPR;
(d)alternatively, if r 503(2) was not available then:
(i)it was open to the plaintiff to join the nominal defendant as a party under r 220 of the CPR;
(ii)that joinder would, under r 242 of the CPR, take effect as at the date of the order;
(iii)if the nominal defendant relied upon a limitation defence it was open to the plaintiff to make an application under s 36 of the Limitation Act for an extension of time that would permit that claim against the nominal defendant to proceed.
The position of the nominal defendant was that:
(a)s 16A of the Limitation Act was the relevant provision;
(b)the circumstances of this case fell outside the scope of the power to amend under r 503(2) of the CPR;
(c)joinder under r 220 of the CPR was not available because what was sought was substitution of defendants rather than inclusion of new parties and amendments to the statement of claim.
The current defendants were, for obvious reasons, supportive of the plaintiff’s application, but only made submissions about the operation of the compulsory third party scheme.
Application of s 16A
In Davies v Barancewicz (2011) 5 ACTLR 305 Katzmann J held that s 16A applies to a cause of action for damages the subject, or potentially the subject, of a claim under the Workers Compensation Act 1951 (ACT) even though the cause of action was not a cause of action brought against the plaintiff’s employer. Therefore s 16A operated in a claim by a plaintiff arising out of a motor vehicle accident which was brought against the driver of the motor vehicle who was not the plaintiff’s employer.
As a consequence, in this case, where it is uncontroversial that a workers compensation claim was made in relation to the motor vehicle accident, s 16A is the relevant provision of the Limitation Act. That is significant because it means that even if the claim against the nominal defendant is outside the three-year limitation period there is still the possibility of the plaintiff making an application under s 36 of the Limitation Act, a course which would not be available if s 16B was the relevant provision.
Application of s 503
Rule 503 of the CPR provides, relevantly:
(1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
(2) The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if—
(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected—
(i) was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.
The plaintiff contended that this application involves “correcting a mistake in the name or identity of a party”. The plaintiff relied upon the decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 (Bridge). The defendant, on the other hand, contended that when properly characterised the circumstances of this case fell outside the scope of the rule when interpreted in accordance with the decision in Bridge.
In order to resolve these submissions it is necessary to consider the decision in Bridge. In that case the plaintiff, a cigarette company, had engaged Bridge Shipping Proprietary Limited (Bridge) to arrange for the carriage of tobacco from Brazil to Melbourne. Bridge employed another company to arrange the carriage and was unaware of the selected carrier. The goods were transported on a vessel named “Green Sand”. The bills of lading did not name the carrier. Some of the tobacco went missing and some was damaged during transit. The tobacco company sued Bridge in the Supreme Court of Victoria. Bridge issued a third-party notice against Grand Shipping SA (Grand). That was the company identified on the Lloyd’s Register as the registered owner of the vessel that carried the tobacco. After the expiry of the limitation period, Bridge discovered that Grand had chartered the vessel to Rainbow Lines SA (Rainbow) and that Rainbow had been the carrier of the goods rather than Grand. Bridge applied under the relevant court rule to substitute Rainbow as a party for Grand. The relevant rules permitted a “mistake in the name of the party” to be corrected even if the effect was to substitute another person as a party. Where an order to correct a mistake was made, the proceeding was taken to have been commenced against that person on the day when the proceedings were commenced. As a consequence, an order made under the rule would have had the effect of avoiding the limitation problem facing Bridge which would have arisen if a joinder of Rainbow only took effect on the date of the order.
There is a distinction between the provision considered in Bridge and the wording of r 503(2) in the CPR. While the rule in Bridge referred to a “mistake in the name of a party”, r 503(2) refers to “a mistake in the name or identity of a party”.
The inclusion of an amendment to correct the identity of a party as well as a mistake as to the party’s name appears to have been deliberate. The provisions of r 376 of the Uniform Civil Procedure Rules 1999 (Qld), upon which the provisions of r 503 appear to be modelled, do not include a reference to correcting the identity of a party. However, the provisions of O 32 r 1 of the Supreme Court Rules 1937 (ACT) (Supreme Court Rules), which the CPR replaced, referred to correcting “a mistake in the name or identity of a party”. The default position under that provision, however, was that the proceedings were then deemed to have commenced with respect to that other person on the day on which the order was made, rather than the date when the proceedings commenced. The drafting of the various sub-rules was such as to create a degree of uncertainty as to the scope of the amendment power.
The form of the Supreme Court Rules prior to their repeal was the result of an amendment to the Supreme Court Rules made in 1993 (Supreme Court Rules Amendment 1993 (ACT) (subordinate law 4 of 1993)). The explanatory statement relating to that amendment made it clear that the new order was substantially along the lines of the Federal Court Rules relating to amendments.
It is not necessary to explore the legislative history of the ACT provision further. That is because the addition of “or identity” does not significantly expand the scope of the rule beyond that considered in Bridge when interpreted in accordance with the reasons of McHugh J.
An equivalent difference in the terms of the rules was noted by Merkel J in Laing v Victoria (2005) 144 FCR 462 at [28]. In the circumstances of that case his Honour did not regard the difference as material because the facts did not establish that there was a mistake as to name or identity. His Honour added that the approach of McHugh J in Bridge may be broad enough to render the distinction between a mistake in name and a mistake in identity one that would have little practical consequence.
That Merkel J was correct is illustrated by the decision of Gordon J in Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376, which considered r 8.21(1) of the Federal Court Rules 2011 (Cth). That rule permits correction of both name and identity. In that case the plaintiff intended to sue its auditor, but made a mistake as to the identity of the auditor. Her Honour held that a mistake fell within the scope of the rule adopting as relevant the questions posed by McHugh J in Bridge at 260-262.
Adopting the approach of McHugh J in Bridge, a person may make a mistake “in the name of a party” when either:
(a)the plaintiff can identify the person but, mistakenly believes that the person so identified bears a certain name; or
(b)when the plaintiff knows a person by a particular description, for example, the driver of a certain car, but the plaintiff is mistaken as to the name of the person who answers that description.
In each case the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person, but is mistaken as to the name of the person. Those properties may be personal characteristics (the first category above) or the essence of the description of that person (the second category above).
In Bridge McHugh J said (at 260) that the rule covered identification by “inherent properties” as well as “certain properties which are true of it and no one else”. In both cases a mistake may arise because the person sued does not have or is not identified by some property or properties which are peculiar to the person intended to be sued and to no one else.
Having stated these propositions, McHugh J then analysed the particular intention of the defendant in that case and concluded that the defendant had intended to sue the owner of the vessel rather than the carrier of the goods. It had therefore sued the party that it intended to sue even though that involved the mistaken assumption that the owner was, in fact, the carrier. The mistake his Honour concluded was that the defendant believed that it had rights against the owner of the vessel, but that was not a mistake “in the name of a party”.
As demonstrated by McHugh J’s comment in Bridge at 261 as to his change of mind on the issue, it is in the application of the general principles to the evidence in the particular case that the real difficulties lie. Whether there has been a mistake in the name or identity of a party will depend upon the evidence as to precisely who was intended to be sued.
In the present case, in my view, the plaintiff intended to sue the driver of the station wagon, being a Caucasian man with a distinctive appearance who lived at the particular address in Conder to which he was followed. He did, in fact, sue that person. He made no mistake as to his name or identity. Rather, the mistake was that, on the evidence presently available, he considers that he is unable to prove that the vehicle which that person was driving was the one that it him. That was not a mistake as to the name or identity of a party. Rather he sued the person he intended to sue but could not prove that the person was the person who is liable for the wrong. As the passage from The “Al Tawwab” (1991) 1 Lloyd’s Rep 201 at 207 quoted by McHugh J in Bridge at 262 makes clear, the rule does not extend to fixing that kind of mistake. The rule does not extend to a mistake where the only intention in relation to which the mistake operates is to sue the person who, on a correct analysis of the facts and the law, is liable. In order to be a mistake in the name or identity of a party, the party must be identified by more specific properties inherent to the person or which only the person has.
In my view, the mistake in this case was as to which vehicle was responsible for the accident. It was not a mistake as to the identity of the driver. The only description of characteristics that could be given was one which merely articulated the basis for liability rather than describing a particular person.
However, recognising that this is a difficult issue, even if I am wrong on this point, it is clear that the other requirements of r 503(2) of the CPR are not satisfied. That is a requirement which imposes a significant qualification on the scope of the rule which was not present in the rules considered in Bridge or in the current Federal Court Rules. It does appear in r 376 of the Queensland rules from which the ACT rules were derived. The plaintiff has not established that “the mistake sought to be corrected was not ... likely to cause a reasonable doubt about the identity of the person ... intended to be sued.”
In the present case, having regard to the allegations in the statement of claim, the evidence in the exhibits to Ms Sherman’s affidavit and other exhibits tendered on the application, it is clear that the plaintiff intended to sue the driver of the “white Nissan station wagon” referred to in the statement of claim, because he was of the view that that vehicle, driven by the tradesman, was the vehicle that hit him.
In those circumstances it is clear that he did intend to serve the tradesman. It was more than doubtful that he intended to sue the driver of the tray back vehicle or some other unidentified vehicle. It was clear the he did not intend to sue those persons. Therefore, even if I am wrong in my conclusion that the mistake was not a mistake as to the identity of a party, the requirements of r 503(2)(b) of the CPR are not satisfied.
Application under s 36
In the light of my conclusion that the circumstances of this case fall outside the scope of r 503(2), the position is that it is not open under r 503 to substitute the nominal defendant for the existing defendant.
However, in my view, in those circumstances it remains open to join the nominal defendant as a party to the proceedings. Having regard to the unavailability of r 503, what is sought to be achieved in the present application must involve several different steps under different rules:
(a)the nominal defendant must be joined as a party;
(b)leave must be granted to amend the pleadings;
(c)the current defendants must be removed as parties to the proceedings.
Those steps can be achieved under rr 220, 502 and 230 respectively. Pursuant to r 242 any joinder of the nominal defendant cannot have the effect of defeating the limitation defence that it will have available to it. In so far as the nominal defendant’s submissions were based upon the formulation of the terms of the application in proceeding, I accept that the drafting of the application is a barrier to the plaintiff seeking to do what would be required to be done.
While I initially considered that it might be appropriate to permit the plaintiff to amend the application in proceeding to achieve the steps I have outlined above to remove the current defendants and join the nominal defendant, I consider it more appropriate to finalise the plaintiff’s application in proceeding having regard to the explicit reliance on r 503, the absence of any amended application in proceedings and its failure on the r 503 issue.
That will not, however, delay the progress of the matter as I will make directions in relation to the filing of a further application including any application for an extension under s 36 of the Limitation Act.
I consider that it is appropriate to require the plaintiff to make an application under s 36 of the Limitation Act in the first instance having regard to the fact that the proceedings are prima facie statute barred and the certainty that the nominal defendant will plead the limitation point.
Orders
The orders of the Court are:
1. The application in proceeding dated 1 July 2016 is dismissed;
2. Costs of the application are reserved;
3. The plaintiff is directed to file and serve any application in proceeding seeking joinder of the nominal defendant and any extension of the limitation period under s 36 of the Limitation Act 1985 (ACT) by 23 August 2016;
4. Any such application must be accompanied by a written outline of submissions limited to no more than 7 pages and a chronology cross-referenced to any affidavit evidence;
5. The nominal defendant is to file and serve any evidence in response to the application anticipated by order 3, and an outline of written submissions limited to no more than 7 pages, by 6 September 2016;
6. Any application filed in accordance with order 3 is listed for hearing, and the proceedings are in any event listed for directions, on 9 September 2016 at 10.30am; and
7. The defendants’ application in proceeding dated 29 February 2016 is adjourned to the dated in Order 6.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 19 August 2016 |
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