Descamps v The Owners of 317 Churchill Avenue, Subiaco Strata Plan Number 56890 - [2018] WADC 167

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   DESCAMPS -v- THE OWNERS OF 317 CHURCHILL AVENUE, SUBIACO STRATA PLAN NUMBER 56890 [2018] WADC 167
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   28 NOVEMBER 2018
DELIVERED          :   13 DECEMBER 2018
FILE NO/S:   CIV 1966 of 2016
BETWEEN:   FRANCOIS ANTOINE ALBERT DESCAMPS
Plaintiff

AND

THE OWNERS OF 317 CHURCHILL AVENUE, SUBIACO STRATA PLAN NUMBER 56890
First Defendant

AIREY REAL ESTATE (SUBIACO) PTY. LTD
Second Defendant

Catchwords:

Practice and procedure - Application to substitute defendant - Consideration of O 21 Rules of the Supreme Court 1971 - Whether first defendant prejudiced

Legislation:

Rules of the Supreme Court 1971, O 21 r 3(b), 5(2)

Result:

Application allowed

Representation:

Counsel:

Plaintiff	:	Mr G Stubbs
First Defendant	:	No appearance
Second Defendant	:	Ms T Bennett

Solicitors:

Plaintiff	:	Kakulas Legal
First Defendant	:	SRB Legal
Second Defendant	:	Moray & Agnew Lawyers

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

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

DEPUTY REGISTRAR HEWITT:

In this action the plaintiff is a resident of Belgium. Whilst visiting Western Australia he attended a premises situated at 317 Churchill Avenue, Subiaco and whilst there suffered a fall and consequential injuries. By a writ filed 8 June 2016 the plaintiff commenced proceedings against the first defendant and a second defendant described as Churchill Strata Pty Ltd. The evidence before me makes it abundantly clear that the intention of the plaintiff was to sue the owners of the property where his accident took place and the strata manager of that premises the allegation being that the second defendant, by virtue of its position should be regarded as an occupier of the premises with the responsibilities which attach to occupation. Subsequently, and much later, the plaintiff filed what purported to be an amended writ of summons substituting Airey Real Estate (Subiaco) Pty Ltd in place of Churchill Strata Pty Ltd. That substitution was made without the leave of the court and it was in clear violation of O 21 r 3(b).
The effect of that failure was to make the amendment irregular and as a consequence the new second defendant filed an appearance in the action and brought an application to set aside the amended writ of summons and its service on the second defendant. All other things being equal such an application was bound to succeed.
The complicating factor arises because the plaintiff by a summons filed 4 September 2018 sought leave to amend the writ of summons and to dispense with service of the writ so amended.
The evidence which has been filed makes it clear that the intention of the plaintiff was to sue the strata owners and the strata manager. In order to prosecute the action which was proposed the solicitors acting for the plaintiff sought the permission of a company called Coakley & Martin to inspect the relevant premises and that was done on 3 June 2016. Subsequently, an employee of the plaintiff's solicitors rang Coakley & Martin to ascertain the correct name of the entity which was the strata manager of the premises. She was told that the name of the strata manager was Churchill Strata Pty Ltd. In fact at that time the strata manager was Coakley & Martin and that company subsequently changed its name to Airey Real Estate (Subiaco) Pty Ltd. The plaintiff's accident occurred on 9 June 2013 and as a consequence there was only one day left remaining of the three year limitation period applicable to the case. Unsurprisingly, the plaintiff's solicitors issued the writ relying on the information they then had available. The material provided by the defendant to support its application to set aside the writ of summons makes it clear that the correct defendant at the time of the telephone inquiry was Coakley & Martin Pty Ltd and that company changed its name to Airey Real Estate Pty Ltd in November 2017. The position therefore is that as the matter comes before me a relevant period of limitation has expired but there remains available to the plaintiff the possibility of an application under the Limitation Act (2005) to extend the period up to a maximum of six years.
The relevant provision of the Supreme Court is contained in O 21 r 5(2) and that rule is as follows:
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 cost or otherwise that may be just and in the manner (if any) that the court may direct.
That rule is a new rule and more liberal than its predecessor and removes, to a large extent, any consideration of whether or not the period of limitation has expired. In the present case it is clear that the three year limitation period for a tortious action has expired at the date of the hearing but there remains the possibility of the plaintiff applying to extend that period and thus overcoming, if successful, a limitation defence.
The High Court in the case of Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 had to deal with a rather similar problem which occurred in the context of the Rules of the Supreme Court of Victoria. That rule provided:
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 document in the proceeding.
Paragraph 4 provides:
A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is of substituting another person as a party.
The court held, and I quote from the head note, that the rule 'covers 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'. That is precisely the situation which prevails in this case. Churchill Strata Pty Ltd was only named as the second defendant because the plaintiff believed that to be the strata manager of the relevant premises. Its intention was always to sue the strata manager as a party having responsibility in relation to the premises where the plaintiff sustained an accident and injury.
The power which is contained in O 21 r 5(2) is discretionary. The court may allow the amendment but may only do so if it is just to do so. In that regard I turn to consider whether there is prejudice to the defendant. There is obvious delay and given that the writ was only filed shortly before the expiration of the three year period that delay has been considerable. Furthermore, there was delay in bringing the present application once the true state of affairs was established. Whilst delay is undesirable it does not necessarily impose a significant disadvantage on a defendant. More tangible effects of delay can be the loss of witnesses and other impediments in the conduct of a defence. No material whatsoever is put before me by the respondent to this application to indicate that anything of that kind has occurred. I am therefore left in the position that the respondent, were it to be legitimised as a defendant to this action, would suffer no greater prejudice than a period of delay might have imposed but no specific handicaps have been identified and explained.
With those matters in mind I am inclined to allow the application by the plaintiff. There is a further practical consideration which I think is of consequence. Were I to refuse the present application there would be no impediment to the plaintiff to bring an application to extend the limitation period, no doubt based on the difficulties which he as a Belgian citizen faces in litigating in Western Australia, and if successful in that application commencing proceedings afresh against the respondent to this application. Subsequently, since there is so much in common between the existing action and such a new action there would no doubt be an application for joinder. That strikes me as a clumsy and inefficient way of dealing with this matter. It is my view that the plaintiff will need to apply for an extension of the limitation period. To do so in the context of the existing application is, I think, a much more efficient way to progress this issue than the alternative and that reinforces my view that it is appropriate to allow Airey Real Estate (Subiaco) Pty Ltd be substituted as the second defendant in the action such substitution to date from the date upon which my decision is delivered.
As to the orders by which this decision may be implemented it seems to me that the appropriate orders to make should be to dismiss the application by Airey Real Estate (Subiaco) Pty Ltd, award the costs of that application to that company and to grant orders as asked on the plaintiff's application and likewise award the costs of that application to Airey Real Estate (Subiaco) Pty Ltd.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
COURT OFFICER
5 DECEMBER 2018