Cooke v Rixon

[2016] ACTSC 236

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)
Limitation Act 1985 (ACT), ss 16A, 16B, 36
Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 62-63
Supreme Court Rules 1937 (ACT), o 32 r 1
Supreme Court Rules Amendment 1993 (ACT)

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
Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376

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

1. 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.

1. 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

1. 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…