Cunningham v Moorevest Pty Ltd - [2016] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CUNNINGHAM -v- MOOREVEST PTY LTD [2016] WADC 38

CORAM: GOETZE DCJ

HEARD: 7 DECEMBER 2015 & 28 JANUARY 2016

DELIVERED : 18 MARCH 2016

FILE NO/S: CIVO 98 of 2015

MATTER :IN THE MATTER of s 38 and s 39 of the Limitation Act 2005

BETWEEN: GRAHAM LEE CUNNINGHAM
Plaintiff
AND
MOOREVEST PTY LTD
Defendant

Catchwords:

Application for extension of time within which to commence proceedings for personal injuries arising by accident - Whether operating shopping centre under a name requires registration as a business name - Alleged improper conduct of the defendant by not registering a business name - Reasonable enquiry to establish identity of entity to whom injury at the shopping centre is attributable - Turns on own facts

Legislation:

Business Names Act 1962 (WA)
Business Names (Commonwealth Powers) Act 2012 (Cth)
Business Names Registration Act 2011 (Cth)
Limitation Act 2005 (WA)
Occupier's Liability Act 1985 (WA)

Result:

Application granted

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Mr A Basile

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: SRB Legal

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Ghiassi v Industrial People Pty Ltd [2012] WADC 23

GOETZE DCJ:

Introduction

On 7 May 2012 at Maddington Village Shopping Centre car park, 134 Westfield Street, Maddington, the plaintiff, Mr Cunningham, fell from his bicycle and suffered injury.
On 24 March 2015, Mr Cunningham consulted Stephen Browne Lawyers to make a claim for his personal injury and loss arising from the fall. The lawyers searched the Business Name Register relating to Maddington Village Shopping Centre and ascertained that that name was then registered to Federation Custodian Pty Ltd.
Next, with only this investigation and without further enquiry or any correspondence to any possible interested party, the lawyers issued a writ of summons on behalf of Mr Cunningham, naming Federation Custodian as the defendant.
After the writ was served, and subsequent to the expiration of the three‑year limitation period for Mr Cunningham to have commenced his action for damages, the lawyers learned for the first time that, in 2010, Federation Custodian had sold the shopping centre to Moorevest Pty Ltd.
It is common ground between the parties that, by s 14 of the Limitation Act 2005 read with s 55 thereof, the time limit for Mr Cunningham to have commenced his action for damages expired on 6 May 2015.
By this application, Mr Cunningham now seeks to extend the time to commence his action pursuant to:
(a)Section 38 of the Limitation Act 2005 (WA), in that his failure to commence the action is attributable to the improper conduct of the defendant, Moorevest, or a person for whom it is vicariously liable in that Moorevest did not lodge the prescribed form in respect of it commencing to carry on the business of Maddington Village Shopping Centre, as required by legislation relating to business names; and/or
(b)Section 39(3)(c) and s 39(4)(c) of the Limitation Act, in that although Mr Cunningham was aware of the physical cause of his injury, and that his injury was attributable to the conduct of a person, he made reasonable enquiry but, was not able to establish the correct person's identity. He says that by reason of the improper conduct recited at (a) above, an incorrect identity was ascertained.

The facts

The following facts can be gleaned from the affidavits and the exhibits thereto:
1.The name 'Maddington Village Shopping Centre' has been displayed on a signpost at the shopping centre for more than 20 years.
2.On 18 August 2006, the business name 'Maddington Village Shopping Centre' was registered by CPT Custodian Pty Limited pursuant to the provisions of s 5 of the Business Names Act 1962 (WA).
3.By a contract of sale dated 16 August 2010, CPT Custodian sold the property described therein as 'Centro Maddington Village Shopping Centre' to the defendant, Moorevest Pty Ltd.
It is not suggested that Centro Maddington Village Shopping Centre is not one and the same shopping centre as Maddington Village Shopping Centre.
4.On 2 November 2010, Moorevest became the registered proprietor of all that piece of land comprising the Maddington Village Shopping Centre, including the car park.
5.It does not appear that on the sale of the shopping centre, CPT Custodian lodged a statement notifying the cessation of it carrying on business under the name of 'Maddington Village Shopping Centre'.
6.Further, it does not appear that Moorevest lodged a statement in respect of it commencing to carry on business under the business name of 'Maddington Village Shopping Centre'.
7.Mr Cunningham alleges that he suffered personal injury on 7 May 2012 at the Maddington Village Shopping Centre car park. He alleges that the bicycle he was riding through a puddle of rainwater in the car park struck a concealed pothole which caused him to fall and fracture his right tibia, as a result of which, he was hospitalised and off work for approximately six months.
8.At first, Mr Cunningham was not aware that he could make a claim for damages, but over time speaking to friends, he learnt that he may be able to claim compensation.
9.An acquaintance of Mr Cunningham, who worked at the Maddington Village Shopping Centre, informed Mr Cunningham that Mr Darryl Moore was associated with the management of the shopping centre. Indeed, Mr Cunningham saw Mr Moore's name on a shop roller door at the shopping centre advising that such shop was for lease. On that sign was Mr Moore's name and telephone number.
10.Mr Cunningham duly telephoned Mr Moore on 20 March 2015.
11.Mr Cunningham and Mr Moore have different recollections of the content of this telephone discussion but, it was not successful in resolving the claim. Mr Cunningham did not provide any information.
12.On 24 March 2015, Mr Cunningham consulted a solicitor, Mr Allon Klein from Stephen Browne Lawyers, whose letterhead refers to those lawyers being 'PERSONAL INJURY LAWYERS'. Mr Cunningham gave Mr Klein a note with Mr Moore's details as follows:
Darryl Moore
Moorevest Pty Ltd
0418 938 757.
13.Mr Klein agreed to act for Mr Cunningham, who signed a retainer for the lawyers to pursue his damages claim.
14.Mr Klein then instructed his law clerk to undertake 'the necessary searches' so that a writ of summons could be filed and served. He did not instruct what searches were necessary. Mr Klein also provided his law clerk with Mr Cunningham's note.
15.On 26 March 2015, the law clerk undertook a search of the ASIC Business Names Register relating to 'Maddington Village Shopping Centre' and ascertained that that business name was then registered to, and held by, Federation Custodian Pty Ltd.
16.The law clerk also obtained an ASIC search of Federation Custodian Pty Ltd indicating that it was previously named CPT Custodian Pty Limited. The change of name occurred on 16 May 2014.
17.On 30 March 2015, the law clerk telephoned Mr Moore on the number detailed in Mr Cunningham's note. The person called allegedly said he had 'never heard of Darryl Moore'. Save that Mr Moore agrees that there was such a telephone call, the content of that call is disputed. Mr Moore said that he was non‑responsive to the questions asked.
18.Mr Moore also says that on 31 March 2015, another person identifying himself as an employee of the lawyers
contacted an employee of [his], Kelli Stewart, who manages the Centre six days per week.
Ms Stewart did not provide any information.
19.The law clerk also conducted ASIC searches for the entities being Moorewest Pty Ltd and Moorvest Pty Ltd. These searches did not reveal any corporate bodies in either of those names. The law clerk advised Mr Klein of this. She did not search Moorevest Pty Ltd.
20.By memo dated 30 March 2015 from the law clerk to Mr Klein, the law clerk reported on the searches outlined above and her telephone call to a person she believed to be Mr Moore. Attached to the law clerk's memo was
a draft writ of the summons for you to settle but note that you've not yet written to the defendant putting them on notice.
21.Mr Klein considered the business name search for 'Maddington Village Shopping Centre' and the search of Federation Custodian. He was satisfied that the correct defendant was Federation Custodian on the basis that it
owned and operated the Maddington Village Shopping Centre, that being a matter of public record.
22.Mr Klein deposed that he
did not consider it necessary to conduct a land title search as, in [his] experience it is the owner of the shopping centre and not the owner of the land, that is the occupier and has the full responsibility for control and management of the shopping centre premises and car parks of the shopping centre.
[He] was unsure of what to make of the plaintiff's instructions regarding Mr Moore and Moorevest and thought perhaps he had been given incorrect information as, at that time, [he] could not see any link between the shopping centre and either Mr Moore or Moorevest Pty Ltd.
23.It does not appear that Mr Klein either reported the results of the law clerk's investigations to Mr Cunningham or sought to clarify his instructions regarding the names Moorevest, Moorvest or Moorewest.
24.Mr Moore reported the telephone calls from Mr Cunningham, the law clerk and a male from Stephen Browne Lawyers to Moorevest's insurer.
25.On 15 April 2015, and following the Business Names Register search result, Mr Klein caused a writ of summons to issue on Mr Cunningham's behalf against Federation Custodian.
26.Following service of the writ upon Federation Custodian, solicitors acting for Federation Custodian advised Mr Cunningham's lawyers, by letter dated 29 May 2015, that Federation Custodian had sold the Maddington Village Shopping Centre in 2010.
27.By letter dated 4 June 2015, the process server informed Stephen Browne Lawyers that the writ of summons had been served on Federation Custodian.
28.On 17 June 2015, the law clerk obtained a copy of the certificate of title relating to the shopping centre identifying Moorevest as the registered proprietor thereof as from 2 November 2010. An ASIC search of Moorevest was also undertaken on that date.
29.The law clerk has explained that she:
believed the name of the entity written on the piece of paper referred to at [7.12] was a mistake as [she] had been unable to locate a business by the name that [she] had interpreted the handwriting to say.
30.The originating summons in this matter was issued on 28 July 2015.

Status of the name 'Maddington Village Shopping Centre'

The first issue for determination is whether the name 'Maddington Village Shopping Centre' is the name of a business. If it is, then, it is subject to the business names legislation brought into effect by the State of Western Australia and more recently, the Commonwealth of Australia.
In Western Australia, the Business Names Act 1962 (WA) was enacted to consolidate and amend the law relating to business names and for other purposes requiring certain business names to be registered and for businesses to notify changes of particulars relating to registered business names and the cessation of business. It also provides for the renewal of registration.
Further, in 2012, a joint Commonwealth and State scheme for the registration of business names came into force. The Commonwealth enacted the Business Names Registration Act 2011 (Cth) and the State of Western Australia enacted the Business Names (Commonwealth Powers) Act 2012 by which the State referred certain matters relating to the registration of business names to the Commonwealth Parliament. The Commonwealth and State Acts were in force at the time of Mr Cunningham's accident and when his lawyers searched the Business Names Register.
Both the Commonwealth and the State legislation deal with the term 'business'. First, the Business Names Act relevantly provides:
4.Terms used
(1)In this Act unless the contrary intention appears –
…
business includes trade and profession;
business name means a name, style, title or designation under which a business is carried on;
carrying on business includes establishing a place of business in the State, and soliciting or procuring any order from a person in the State and 'to carry on business' has a corresponding meaning;
…
It can be seen, that in the State Act, the term 'business' is not defined as such. It only provides for what that term includes. The Shorter Oxord English Dictionary provides that the natural and ordinary meaning of 'business' includes:
•The state of being busily engaged; activity; application; industry; diligent labour;
•The object of concern or activity;
•Action demanding time and labour; serious work;
•A habitual occupation; a profession; a trade;
•A thing that concerns one; a matter in which one may take part;
•A particular matter requiring attention; a piece of work; a job; an agenda.
•Dealings; intercourse;
•Trade; commercial transactions or engagements; total bookings, receipts.
•A commercial house, a firm.
It is pertinent to note that s 4 of the Business Names Act, provides, relevantly,
(2)For the purposes of this Act, a person shall not be regarded as carrying on business within the State for the reason only that within the State he —
…
(g)invests any of his funds or holds any property.
The Business Names Registration Act (Cth), relevantly, provides by s 3:
business has the meaning given by section 4.
carrying on a business includes doing anything in the course of the commencement or termination of the business.
By s 4:
(1)Business means an activity, or series of activities, done:
(a)in the form of a profession, a trade, employment, a vocation or a calling; or
(b)in the form of an adventure or concern in the nature of trade; or
(c)on a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property.
(2)Business does not include an activity, or a series of activities, done in circumstances in which an entity doing that activity or series of activities in, or in connection with, Australia would not be entitled to an ABN.
Mr Moore's affidavit sworn 15 December 2015 deposed as follows:
5.The property was purchased with the intention of it being a passive income generating investment. The property consists of a shopping centre with a number of tenants.
6.All tenancies are negotiated through the Defendant's leasing agents based on market values.
7.Once negotiations are completed, the final offer from the tenant is presented to me as a Director of the Defendant for approval.
8.Assignments of lease are dealt with in the same manner – namely, initially through the agents and then presented to me for final approval.
9.My father, who is a 78 year old retired farmer, conducts maintenance on the property.
10.If required, specialised maintenance services are provided by contractors, including plumbers, electricians, glaziers, tilers and other tradesmen. I call for quotes and hire these tradesmen for and on behalf of the Defendant.
11.I do not attend the property as a Director of the Defendant on a daily basis. There are numerous times when months go by without myself attending the property. Over the last five years of ownership, I would have been present on the property on an average about 18 days per year.
12.The tenants who run various shops ranging from fish and chips, pharmacy, newsagency, baker and 'Farmer Jacks' supermarket do run the businesses from the property and attend the property every day during normal business hours and have their own business names registered.
13.Each of the tenants has the option of including the name 'Maddington Village' in their business name. Some choose to, but most do not.
14.The Defendant did not register the business name 'Maddington Village Shopping Centre' as Centro was not selling the name. The Defendant did not purchase the name and it was not part of the 'assets' purchased pursuant to the contract being Annexure 'A' to this Affidavit.
…
16.The Defendant does not have a Centre Manager or Centre Manager's office as it is a small shopping centre run from the property.
17.Whilst it is accepted that there is a sign at the entrance of the property which states 'Maddington Village Shopping Centre' – that was a sign that was erected over 20 years ago. Upon purchase of the property, it has not been removed.
In his affidavit at [16], Mr Moore stated that the shopping centre does not have a centre manager of office. He said it is 'run from the property'. This appears to be an inherent inconsistency. At [9] from his earlier affidavit sworn 8 October 2015, Mr Moore said:
9.On 31 March 2015 another employee from Stephen Browne contacted an employee of mine, Kelli Stewart, who manages the Centre six days per week. …
Mr Moore has submitted that Moorevest is not carrying on business as Maddington Village Shopping Centre. He says it is a mere passive investment in property.
Section 4(2)(g) of the State Act provides that 'a person shall not be regarded as carrying on business by reason only that … he … holds any property'. However, s 4(1)(c) of the Business Names Registration Act (Cth), provides that, ' "business" means an activity, or series of activities, done on a regular or continuous basis, in the form of a lease licence or other grant of an interest in property'. If there is any inconsistency between these two legislative provisions, then, the Commonwealth legislation prevails
Here, the shopping centre comprises several shops and a car park, all of which require activity on a regular and continuous basis. The shopping centre involves a state of being busily engaged, activity, application, industry and diligent labour six days a week in the form of managing the shopping centre by Ms Kelli Stewart for Moorevest. Her time and labour was required. It was an habitual occupation for her and a job someone had to do.
Further, Mr Moore is active on a regular or continuous basis in approving new tenancies and assigning leases, even with the assistance of real estate agents. He also does some of this himself as Mr Cunningham set out in his affidavit and which has been referred to at [7.9] above.
Mr Moore's father maintained the shopping centre on a regular and continuing basis and with the assistance of tradesmen.
The sum of all this is the business of a shopping centre and it has the name 'Maddington Village Shopping Centre', being the sign erected more than 20 years ago. As such, the owner of a business with that name was and is required to comply with the business name legislation.

Requirements of the Business Names legislation

Turning then to the legislative provisions, the Business Names Act relevantly provides:
5.       Certain business names to be registered
…
(1)A person shall not either alone or in association with other persons, carry on business in the State under a business name unless —
(a)the business name consists of the name of that person and the name of each other person, if any, in association with whom that person is so carrying on business without any addition; or
(b)the business name is registered under this Act in relation to that person and each other person, if any, in association with whom that person is so carrying on business,
and where the business name is so registered unless such of the provisions of section 12 as are required to be complied with by or on behalf of the person or persons in relation to whom the name is registered have been complied with.
Penalty: $200. Default penalty.
11.     Renewal of registration
…
(1)The registration of a business name remains in force for a period of 3 years, but the registration may from time to time be renewed by lodging with the Commissioner, at any time within the period of one month before or after the expiry of the registration or within such further time as the Commissioner allows, a statement in the prescribed form, signed by the person or one of the persons in relation to whom the name is registered, together with the prescribed fee.
…
12.     Notification of changes of particulars relating to registered business names, cessation of business etc.
…
(3)Where a business name is registered under this Act in relation to a person or persons and that person ceases or all or any of those persons cease to carry on business in the State under that name, there shall be lodged with the Commissioner within one month thereafter, or within such further time as the Commissioner allows, a statement in the prescribed form notifying the Commissioner of the cessation and of the date thereof, signed by each person who was carrying on business under that name immediately before the cessation or in the case of a deceased person by his personal representative.
(4)Where a business name is registered under this Act in relation to a person or persons and another person or other persons commences or commence to carry on business in the State under that name in place of or in association with any person or persons in relation to whom the name is already registered, there shall be lodged with the Commissioner within one month thereafter, or within such further time as the Commissioner allows, a statement in the prescribed form, signed by each person carrying on business under that name immediately after that person commenced carrying on business under that name setting out the date on which that other person so commenced to carry on business and if that person is —
(a)an individual, the christian names and surname and any former christian names or surname and the usual place of residence of that person and where that person is an infant, in addition to the particulars referred to in this paragraph, he shall be so described in the statement and the date of his birth shall be set out therein; or
(b)a corporation, the corporate name and the place of the registered office of the corporation.
…
(8)If a statement required by a provision of this section to be lodged with the Commissioner is not lodged in accordance with the provision, or if lodged does not comply with the provision, each person required or authorised by the provision to sign the statement is, unless he proves that he took all reasonable steps to ensure compliance with the provision, guilty of an offence.
Penalty: $200. Default penalty.

The:
(i)registration of a business name when carrying on business as required by s 5(1)(b);
(ii)lodging of a statement notifying the cessation of carrying on business as required by s 12(3) and;
(iii)lodging a statement to notify the commencement of carrying on a business under an existing business name in place of the person or entity to whom the name is already registered as required by s 12(4)
of the Business Names Act as referred to above were required at all relevant times.
Accordingly, CPT Custodian (as Federation Custodian was named), was required by s 5(1)(a) of the Business Names Act to register the business name of 'Maddington Village Shopping Centre'. It duly did so. It should be noted that it was in the business of owning shopping centres as such, as can be seen from the Business Names Register search details.
Further, in 2010 when CPT Custodian sold the shopping centre to Moorevest, it was required by s 12(3) of the State Act to lodge a statement that it had ceased to carry on that business, the name of which was still registered. In addition to this, Moorevest was then also required by s 12(4) of the State Act to lodge a statement that it had commenced to carry on business under the existing business name in place of CPT. Of course, CPT Custodian became known as Federation Custodian on 16 May 2014.
The Commonwealth Act relevantly provides
16Objects of this Act
(1)The objects of this Act are:
(a)to ensure that if an entity carries on a business under a business name, those who engage or propose to engage with that business can identify the entity and how the entity may be contacted; and
(b)to remove the inconvenience caused by the registration of business names under the law of more than one jurisdiction within Australia.
(2)These objects are achieved by requiring an entity that intends to carry on a business under a business name to register the business name on a nationally established and maintained register of business names.
(3)The objects of this Act are also:
(a)to avoid confusion by ensuring that business names that are identical or nearly identical are not registered; and
(b)to ensure that business names that are undesirable (for example, because they are offensive) are not registered; and
(c)to ensure that business names that should be restricted for any other reason (for example, because they might mislead consumers) are not registered.
(4)The objects mentioned in subsection (3) are achieved by rules dealing with the availability of business names.
…
18Offence ‑ carrying on a business under an unregistered business name
(1)An entity commits an offence if:
(a)the entity carries on a business under a name; and
(b)the name is not registered to the entity as a business name on the Business Names Register.
Penalty: 30 penalty units.
20Offence ‑ must display business name at places open to public
(1)An entity commits an offence if:
(a)the entity carries on a business under a business name; and
(b)the entity does not display the name prominently at every place at which the entity carries on the business that is open to the public.
Penalty: 5 penalty units.
Pursuant to s 22 of the Commonwealth Act, the Australian Securities and Investment Commission has established and maintains a Business Names Register. It was this register which the lawyers searched.
By Moorevest not registering the business name 'Maddington Village Shopping Centre' to itself, it committed an offence contrary to s 18(1)(a) of the Commonwealth Act.
It is self‑evident, that, if CPT and Moorevest had respectively complied with s 12(3) and s 12(4) of the State Act and if Moorevest had complied with s 18(1)(a) of the Commonwealth Act then, the lawyers would have correctly ascertained Moorevest as the owner of the business name 'Maddington Village Shopping Centre', rather than Federation Custodian. The lawyers would have had this identification on 25 March 2015 and when they issued the writ on 15 April 2015, they would then have correctly named Moorevest as the defendant and this application would not have been necessary.

Limitation Act s 38 and s 39

Section 38 and s 39 of the Limitation Act 2005 provide, relevantly, as follows:

Section 38

38. Court may extend time to commence actions in cases of fraud or improper conduct
(1)A plaintiff may apply to a court for leave to commence an action on a cause of action even though the limitation period provided for under this Act has expired.
(2)On an application a court may extend the time in which the action can be commenced up to 3 years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable.
(3)…
(4)…

Section 39

39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under his Act has expired.
(2)…
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues —
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person’s identity.

(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware —
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).

(5)…

Section 38

Mr Cunningham's counsel submitted that Moorevest is guilty of improper conduct within the meaning of s 38 in that, upon purchasing the shopping centre, and commencing to carry on the business of the shopping centre under the name of 'Maddington Village Shopping Centre', it failed to lodge the statement of such commencement as required by s 12(4) of the Business Names Act and by s 18(1)(a) of the Business Names Registration Act (Cth).
Mr Cunningham's counsel submitted that improper conduct may be characterised as misleading anyone who had an interest in establishing the identity of the proprietor of a business name. As noted at [7.1] above, the shopping has been signposted 'Maddington Village Shopping Centre' for more than 20 years.
It is not suggested that Moorevest or any of its employees or agents has been guilty of fraudulent conduct.
It was not suggested by counsel for Mr Cunningham that the conduct of Mr Moore and/or the centre manager on the telephone amounts to improper conduct for which Moorevest is vicariously liable.
'Improper conduct' is not defined in the Limitation Act.
The Shorter Oxford English Dictionary provides the natural and ordinary meaning of 'improper' as:
•incorrect, inaccurate, irregular, wrong;
•unsuitable, inappropriate;
•unbecoming, unseemly
The Shorter Oxford English Dictionary also provides the natural and ordinary meaning of 'conduct' as:
the manner of conducting oneself: behaviour, especially in its moral aspect.
Given the natural and ordinary meaning of the words 'improper' and 'conduct', it can be readily concluded that a body corporate which conducts a business under a name but which, contrary to law, neither registers that business name nor lodges a statement that it has commenced to carry on business under that name in place of the company to which the name is already registered, is guilty of improper conduct. Moorevest's failure to comply with the business names legislation must amount to improper conduct.
Leave to commence an action out of time should therefore be granted.

Section 39

In these circumstances, it is not necessary to examine s 39 of the Limitation Act. However, in case I am wrong on s 38, it is appropriate to do so given that submissions were provided with respect to s 39.
On a plain reading of s 39, subsection (3)(a) has no application in this matter. Clearly, Mr Cunningham was at all times aware of the physical cause of his injury.
Under s 39(3)(b), Mr Cunningham was aware of the physical cause of his injury but, at first, he may not have been aware that that injury was attributable to the conduct of a person. However, by at least around 20 March 2015 when he telephoned Mr Moore, Mr Cunningham was aware that his injury was attributable to the conduct of a person, namely the person in whom there was a duty of care to ensure that accidents of the kind suffered by him did not happen. If he was not so aware, he certainly then became so aware following his consultation with Mr Klein on 24 March 2015. It follows that s 39(3)(b) does not assist Mr Cunningham.
By s 39(3)(c), once Mr Cunningham was aware of the physical cause of his injury and had ascertained that his injury was attributable to the conduct of a person, he was required to make reasonable enquiry to ascertain the identity of that person.
The question to be asked under s 39(3)(c) is whether Mr Cunningham or his lawyers, who made enquiry for him, made reasonable enquiry to establish the true identity of the entity or person to whose conduct Mr Cunningham's injury was attributable soon enough after the occurrence of the physical cause of his injury so as to be able to name that entity or person in any writ which needed to have been issued before the expiration of the limitation period?
The lawyers' letterhead indicates they are 'PERSONAL INJURY LAWYERS'. As such, they should implicitly, if not expressly, be expected to undertake all such relevant searches as may be appropriate to the task at hand so as to make reasonable enquiry within the meaning of s 39(3)(c). Such ever knowledge as they ascertained could then be imputed to Mr Cunningham.
Once the conflict in instructions regarding Moorewest, Moorvest and Moorevest was apparent, the business name search revealed Federation Custodian, but not Moorevest, as the owner of the business name and Mr Moore and the shopping centre manager Ms Kelli Stewart were unhelpful by telephone, reasonableness required further investigations by the lawyers to resolve the true identity of the entity or person to whose conduct Mr Cunningham's injuries were attributable. It was not good enough for Mr Klein to be 'unsure of what to make of [Mr Cunningham's] instructions' and to think that 'perhaps he had given incorrect instructions'. Clarification of those instructions was required.
The indorsement of claim on the writ issued on 15 April 2015 alleges that:
2.[Mr Cunningham]was riding his bicycle through the car park at the shopping centre when he rode his bicycle over an area which he believed was sheeted with rain water but which, unbeknown to him, was in fact a rainwater filled pothole and when he rode over that area his bicycle went into the pothole which caused him to lose control of his bicycle and fall to the ground and he thereby suffered injury (the accident).
3.The accident was caused by the defendant's negligence and/or breach of Occupier's Liability Act 1985 in that the defendant failed to have a reasonable system in place for checking and inspecting the surface of the car park for dangers, failed to effect repairs to the pothole, allowed the car park to fall into a state of disrepair and failed to give the plaintiff any warning of the danger presented by the pothole.
The alleged negligence and/or omission includes a failure to check, inspect and repair the car park so as to make it safe for the users thereof. The writ also alleges allowing the car park to fall into disrepair without warning.
Further, the indorsement of claim on the writ of summons referred to the Occupier's Liability Act. That Act prescribes the standard of care owed by occupiers and landlords of premises to persons and property on the premises. Section 9 thereof provides for premises occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises in imposing a duty on a landlord towards persons who may from time to time be on the premises. Therefore, reasonable enquiry to establish the identity of the person to whose conduct Mr Cunningham's injury was attributable would compel ascertaining the ownership of the property and any possible tenancy by which any tenant might be responsible for maintenance or repair of the property.
Persons who may have been negligent or have failed to do the things alleged in the writ include the registered proprietor and/or landlord of the shopping centre, the registered proprietor and/or landlord of the car park, any professional property manager as distinct from a Moorevest employee appointed to manage the shopping centre and/or car park and/or any other person controlling either or both the shopping centre and car park. The shopping centre and the car park may have been owned by different registered proprietors.
In these circumstances, reasonable enquiry also demanded that there be a search at Landgate to ascertain the name of the registered proprietor of the shopping centre and car park. A search at Landgate would have revealed Moorevest as the true registered proprietor of Maddington Village Shopping Centre and car park.
A Landgate search was not undertaken until after the expiration of the limitation period.
The lawyers did not attend at the shopping centre to check at the office for any information that such attendance and enquiries should have revealed. By s 20(b) of the Business Names Act, and s 20(1)(b) of the Business Names Registration Act respectively, the business name must be displayed in a conspicuous position or prominently. This would have revealed the existence of the sign which had been in place for more than 20 years. Further, by s 20(c) of the Business Names Act, the certificate of registration must be displayed in a conspicuous position at the place where the business is carried on. It is an offence to not do so. Enquiries could have been made of Ms Kelli Stewart in this regard. If she indicated that Moorevest was her employer and the registered proprietor of the shopping centre and carpark but, the shopping centre name was not registered to Moorevest then, further enquiries would have had to have been made.
Mr Cunningham's solicitors also telephoned Mr Moore. Those telephone calls proved to be fruitless. There is no fault in that, but they did not send a letter to Moorevest advising of Mr Cunningham's injury and intention to claim damages. Had they done so, they may well have been told before the expiration of the limitation period that Federation Custodian no longer owned the shopping centre. They could have then investigated further. Here, it must be noted that Mr Moore was informing Moorevest's insurer of all contact from the lawyers.
It must also be remembered, that Mr Cunningham provided his lawyers with the name Moorevest Pty Ltd, Mr Moore's name and his mobile telephone number. Moorevest was not the owner of the business name registration which was still registered to Federation Custodian. The ASIC searches were only made for the similar names of Moorewest and Moorvest, but not Moorevest. A search of Moorevest would have ascertained a company by that name with Mr Moore as a director of it. Moorevest should also have been searched. It would have been reasonable for the lawyers to have advised Mr Cunningham of the results of their searches and to have sought his further instruction. To have done so may well have highlighted the spelling problem prior to the expiration of the limitation period.
In AME Hospitals Pty Ltd v Dixon [2015] WASCA 63, McLure P said:
[18]First, to enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness of the person to whom the cause of action accrues, at the time when the limitation period expired, of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person.
[19]The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person).
[20]In practical terms, the focus of attention in an application under s 39 should be on when the person to whom the cause of action accrues … first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) because the application has to be made within three years from that date. That exercise will inevitably provide the evidentiary basis for determining the matters necessary to enliven the power under s 39(3).
…
[42]I agree with Buss JA that the objective test of reasonableness is assessed having regard to the characteristics, attributes and circumstances of the particular person to whom the cause of action accrues.
It is only after reasonable enquiry failed to establish the relevant person's identity that the jurisdiction of the court is enlivened to exercise the discretion to extend time: Ghiassi v Industrial People Pty Ltd [2012] WADC 23 [21].
Mr Cunningham's case is different from Ghiassi. Mr Ghiassi wrongly believed that a Mr Stafford, who caused his injury, was employed by Country Carriers Consortium Pty Ltd. That was a mistake. Mr Ghiassi was not aware that Mr Stafford was in fact employed by Industrial People Pty Ltd. It was found to have been reasonable to have made this mistake. In that circumstance, the power to grant leave under s 39(3)(b) was enlivened and the discretion under s 39(c) was executed in Mr Ghiassi's favour.
In Mr Cunningham's case, there may have been a mistake caused by the incorrect information provided from the Business Names Register search but, that conflicted with other information provided by Mr Cunningham to his solicitors. The conflict needed to be resolved. It was not. Reasonable enquiry was not made to ascertain the identity of the entity or person who was responsible for failing to maintain the car park and to whose conduct Mr Cunningham's injury is attributable. For these reasons, Mr Cunningham cannot bring himself within the provisions of s 39(3)(c).

Further matters for consideration on extension applications

Section 44 of the Limitation Act provides as follows:
44. Further matters for court’s consideration on extension applications
When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to —
(a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).
It is not suggested that the delay in commencing the proposed action would unacceptably diminish the prospects of a fair trial of the action or that Moorevest would be significantly prejudiced other than by reason only of the commencement of the proposed action.

To now allow the extension after the expiration of the limitation period will not prejudice the proposed defendant because Moorevest has been on notice of the formal claim since July 2015. Indeed, Mr Moore was given oral notice in March 2015. When reporting to Moorevest's insurance broker on 21 March 2015, Mr Moore wrote:
Repairs to the car park have been consistently undertaken by ourselves using bitumen, blue metal and sand to reduce the risk, prior to spending a large amount in November 2014 for brand new asphalt to be laid.
In my opinion, we have done everything possible to reduce the risk, and it is our intention to continue to renew the remainder of the car park with further fresh bitumen when funds become available. In the meantime, crushed blue metal is placed in any holes.
It is however appropriate to note that the failure by Mr Cunningham, through his lawyers, to conduct further enquiry once difficulties emerged in the face of Mr Cunningham having provided the name of Moorevest to the lawyers is a contributing factor to the predicament in which Mr Cunningham now finds himself. He is however, a layman who put his faith in personal injury lawyers.
Had Moorevest lodged a statement of its commencement to carry on business under the business name, the correct entity would have been established on a search of the Business Names Register and Moorevest then would have been named as the defendant within the limitation period. This in itself indicates that any prejudice in delay from March 2015, before the expiration of the limitation period, to the present is of its own making.
Once the mistake was pointed out to Mr Cunningham's solicitors, immediate steps were taken to rectify the position.

Conclusion

The application for an extension of time is allowed.