Dexus Holdings Pty Ltd v Sinelec Australia Pty Ltd

[2022] VCC 97

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CI-21-01474

Dexus Holdings Pty Ltd	Plaintiff
v
Sinelec Australia Pty Ltd	Defendant

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JUDGE:	His Honour Judge Woodward
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2021
DATE OF RULING:	11 February 2022
CASE MAY BE CITED AS:	Dexus Holdings Pty Ltd v Sinelec Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VCC 97

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:               Application by plaintiff for leave to amend the writ to correct a mistake in the name of the plaintiff – construction of rule – whether there was a mistake – whether evidence must show that the applicant itself was mistake – role of solicitor – expectation of court where parties directed to participate in case conference facilitated by division lawyer – failure by a party to disclose arguments in case conference or in submission – overarching obligations

Legislation Cited:      County Court Civil Procedure Rules 2018 (Vic) rules 36.01(1), (4) and (6), Civil Procedure Act 2010 (Vic) s47

Cases Cited:Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, Telstra Corporation v Roycroft (1997) 77 FCR 358, Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd (Northern Territory Court of Appeal, Martin CJ, Kearney and Priestley JJ, 26 September 1997), PD Enterprises Limited v Pacific Brands Clothing Pty Ltd [2012] VSC 494, Silverstone Holdings Pty Ltd v American Home Assurance Co (1997) 8 WAR 516, Perkins v Uniting Church of Australia Property Trust [2006] VCC 1773

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Whelan	Lander & Rogers
For the Defendant	D Collins QC with J Ross	Kennedys (Australasia) Partnership

HIS HONOUR:

Application and outcome

1The plaintiff applies by summons dated 10 November 2021 for leave pursuant to rules 36.01(1) and 36.01(4) of the County Court Civil Procedure Rules 2018 (“Rules”) to file and serve an amended writ and statement of claim, substituting “Dexus Funds Management Limited” (“DXFM”) as plaintiff in lieu of “Dexus Holdings Pty Ltd” (“Dexus Holdings”). The application relies on a mistake in the name of a party (r36.01(4)). The application is contentious because a limitation period applicable to the substantive claim in the proceeding has expired since the proceeding was commenced. The application is unusual (although not unique), because the mistake was made by the plaintiff in naming itself.

2For the reasons that follow, the application will be granted. I have also taken the opportunity to comment on the court’s expectation of parties who are given the opportunity (facilitated by the court) of participating in a case management conference with a court division lawyer. Although the role of the division lawyer is relatively new, the basis for the expectations (namely, the overarching obligations under the Civil Procedure Act 2010 (Vic) (“CPA”)) are not. My observations in this regard are also relevant to the question of costs of this application, and I express below my tentative view as to the costs order I should make and invite the parties to file and serve submissions and any further material on the question of costs, should either wish to do so.

3I will deal first with the substantive application before turning to the case management concerns.

The application for leave to amend

The proceeding

4In the substantive proceeding, the plaintiff seeks damages for breach of contract, alternatively in negligence, for work carried out by the defendant on 16 April 2015 on a generator at the ‘IBM Tower’ in Southbank. In its statement of claim filed on 15 April 2021, the plaintiff relevantly alleges that:

(a)   the plaintiff was at all material times the owner and operator of the IBM Tower in Southbank;

(b)   by or in early 2015, the parties entered into an agreement under which the defendant was to supply certain goods and services as part of an upgrade for certain generators at the IBM Tower (“Contract”);

(c)   the particulars for Contract are a number of invoices;

(d)   in the course of carrying out works on the generators, one of the generators went into overspeed and exploded, which was caused by an incorrect software setting; and

(e)   the works were in breach of the Contract and negligent, and the plaintiff suffered damage quantified at $263,019.08.

5In its defence, the defendant pleaded that the Contract was with a different entity, namely, DXFM.

The application

6The application was brought pursuant to rules 36.01(1) and 36.01(4) of the Rules. Rule 36.01(1) sets out the court’s general power to grant leave to amend any document in a proceeding. Rule 36.01(4) provides:

“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.”

7A limitation period has expired since this proceeding was commenced, so rule 36.01(6) is also relevant. It provides:

“Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may 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 that party’s claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise”.

8The affidavit in support of the application was affirmed by the plaintiff’s solicitor Ari Abrahams of Lander & Rogers (“Landers”) on 9 November 2021 (“Abrahams affidavit”). Mr Abrahams relevantly deposes to the effect that:

(a)   in February 2018, Landers began acting for insurers to investigate recovery following settlement of an insurance claim by the Dexus Property Group (“Dexus Group”) for the damage caused by the generator failure;

(b)   Landers received various documents relating to the insurance claim, including the policy documents naming the plaintiff “and dozens of other entities” as insureds (including DXFM), 31 loss adjusting reports and expert reports;

(c)   the documents refer to the owner of the IBM Tower as the plaintiff or simply “Dexus”;

(d)   on about 14 May 2018, Landers prepared a draft letter of demand addressed to the defendant, stating that Landers acted for the plaintiff, “the proprietor of the IBM office tower at 60 City Road, Southbank, Victoria” and that in early 2015 the plaintiff engaged the defendant to undertake an upgrade on the generators;

(e)   before 31 May 2018, Landers received confirmation from Ms Eleesha Way of Dexus that: “The letters [sic] look fine to me”;

(f)    on 31 May 2018, Landers sent a letter of demand in the form of the draft to the defendant;

(g)   on 18 September 2019, Landers emailed the loss adjustor requesting a copy of the Contract; sending follow up emails on 8 and 16 October 2019;

(h)   on 15 October 2020, Landers sent a further letter of demand (this time to the defendant’s solicitors Kennedys) again saying that Landers acted for the plaintiff and attaching an additional expert report;

(i)    on 17 October 2019, the loss adjustor responded advising that no contractual documents were received from the plaintiff;

(j)    on 22 December 2020, Kennedys replied disputing liability and the expert’s conclusions;

(k)   on 15 April 2021 (the day before the applicable limitation period was due to expire), Landers arranged to file the writ and statement of claim and served sealed copies on Kennedys;

(l)    on 2 June 2021, Kennedys filed and served the defendant’s defence on Landers – paragraph 3 of which referred to the Contract being between the defendant and DXFM dated 2 July 2014;

(m)     on 7 June 2021, Kennedys wrote to Landers seeking clarification of how the plaintiff had suffered damage and referring to a title search of the IBM Tower, identifying Trust Company Ltd as the owner and noting that the invoices for the work on the generator were addressed to the Dexus Southgate Trust;

(n)   on 24 June 2021, Landers arranged a title search of the IBM Tower which revealed that the proprietors of the tower at the relevant time were Perpetual Trustees Limited and Trust Company Ltd;

(o)   on 28 July 2021, Kennedys provided Landers with a copy of the Contract which, so far as Mr Abrahams was aware, was the first time Landers had been provided with the Contract;

(p)   on 11 October 2021, Dexus sent Landers the contracts of sale of “Southgate” (which included the IBM Tower);

(q)   following a review of the contract of sale and other searches and documents, Mr Abrahams identified that at the relevant time:

(i)Perpetual held the IBM Tower on trust for the Dexus Southgate Trust;

(ii)DXFM was the responsible entity (within the meaning of the Corporations Act 2001 (Cth) (“RE”) of the Dexus Southgate Trust and had appointed Perpetual to hold the assets of the trust on behalf of DXFM;

(iii)DXFM as RE was responsible for the operation and maintenance of the generators of the IBM Tower and entered into the Contract with the defendant in that capacity; and

(iv)DXFM is a wholly owned subsidiary of Dexus Holdings Pty Ltd.

(r)    on 29 October 2021, Landers sent Kennedys a proposed amended writ and statement of claim, naming DXFM as plaintiff and Kennedy’s responded stating that the defendant would not consent to the request to substitute DXFM as plaintiff;

(s)   based on Mr Abrahams review of the Landers file and documents referred to in his affidavit, he believes that “Dexus and its insurers” intended to sue in the name of the entity that was responsible for the operation and maintenance of the generators at IBM Tower and that entered into the Contract, therefore issuing the proceeding in the name of the plaintiff was a mistake; and

(t)    the application does not prejudice the defendant, given that it knew which entity it had contracted with and has been aware of the claim for the damages to the generators since the first letter of demand dated 31 May 2018.

Principles applicable to r36.01(4)

9Both parties filed and served written submissions. I say more about the circumstances and content of these in my case management comments below. Unsurprisingly, in both their written and oral submissions both parties drew heavily on the leading case on the application of rule 36.01(4), namely, Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 (“Bridge Shipping”) and, in particular, on the leading judgment of McHugh J.

10In Bridge Shipping, goods were damaged in transit by sea from Brazil to Melbourne. The owner of the goods sued the company it had engaged to arranged the carriage, namely, Bridge Shipping. Bridge Shipping issued a third-party notice for indemnity against the registered owner of the vessel, Grand Shipping. Bridge Shipping later discovered that at the time of the carriage, the vessel had been under charter to another company, Rainbow Line. Bridge Shipping applied under rules 36.01(1) and (4) to substitute the carrier Rainbow Line as third party in place of Grand Shipping, the owner. By then, the time for suing Rainbow Line for indemnity or contribution had expired.

11The Full Court of the Supreme Court (Crockett, Kaye and Southwell JJ) had refused the application (upholding the decisions of Master Brett and King J), finding (in substance) that the better view is that the rule must be confined to “mere cases of misnomer, misdescription, typographical or clerical error and the like” (Bridge Shipping Pty Ltd v Grand Shipping SA [1991] 1 VR 258 at 262).

12The High Court (Brennan, Deane, Toohey and McHugh JJ) rejected this approach, finding that the rule covers not only cases of misnomer, clerical error and misdescription but also those cases 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. However, the High Court ultimately reached the same result as the Full Court of the Supreme Court, holding that Bridge Shipping had not made a mistake “in the name of a party” within rule 36.01(4), because the evidence showed it had intended to sue the owner of the vessel and it did so (that is, the description of the person it intended to sue was “owner”, and it named the owner). Its mistake was identifying too late that it should have sued the carrier.

13I cannot do justice to the reasons of McHugh J by attempting to paraphrase the relevant passages, so I take the liberty of setting them out in full (citations omitted). His Honour begins by drawing a parallel between a mistake about identity and a mistake about description (at 259–260):

“The concluding words of sub-r. (4) “whether or not the effect is to substitute another person as a party” enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make “a mistake in the name of a party” not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake “in the name of a party” because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person’s name. Equally, the plaintiff may make a mistake “in the name of a party” because, although intending to sue a person whom the plaintiff knows by a particular description, e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, 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 that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: “The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X”. The sub-rule applies equally to the case where the plaintiff says: “The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X”. In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.”

14His Honour also provided important guidance on the general application of the rule (at 260–261) (citations omitted):

“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.  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…

To give the rule the meaning for which Bridge contends does not mean that a person can sue any person and then at a later time substitute another person for the original defendant. The rule imposes three limitations on a person's right to amend. 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).”

15I interpolate that the defendant’s focus in oral submissions in this application was on the first of these three limitations; that is, there must be a mistake. As set out in detail below, the substance of the defendant’s submissions was that the plaintiff had failed to adduce evidence sufficient to establish that the plaintiff was in fact relevantly mistaken.

16Finally, his Honour explained why, despite the beneficial interpretation favoured by the High Court, the application failed (at 262) (citations omitted):

“The statement of claim in the present case does not indicate that Bridge sued Grand because it believed that Grand was the carrier but was mistaken as to the name of the carrier. To the contrary, the allegation in par. 3 that Grand was “the owner of the vessel” at all material times indicates that Bridge intended to sue Grand because it believed that Grand was the owner of the vessel. The correctness of that conclusion is confirmed by the affidavit of Bridge's solicitor who swore that he ‘was concerned to preserve Bridge Shipping's rights against the Owner of such vessel’.

Bridge made no mistake as to description of the party which it wished to sue. It intended to sue the owner and did so. Bridge’s mistake was not one of misnomer, clerical error or misdescription. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description. The present case is different, therefore, from Lloyd Steel where Clarke J. accepted that the plaintiff's solicitor had “instituted the proceedings because he believed, as a result of his searches of the Lloyd’s Register, that the first named defendant in each case was the carrier”.  The mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not a mistake “in the name of a party”.”

Plaintiff’s submissions

17As I noted at the outset, this application is unusual (although not unique) because the mistake was made by the plaintiff in naming itself. The plaintiff’s submission was in essence that the statement of claim identifies the entity it intended to name as plaintiff, as having two properties which are true of the intended plaintiff and of no one else. Those properties are, first, that it was at all material times the owner and operator of the IBM Tower in Southbank and, second, that it was the counterparty to the Contract under which the defendant agreed to undertake the generator upgrade. The plaintiff mistakenly believed that the name of the entity that possessed those properties was Dexus Holdings, when in fact it was the name of its related entity, DXFM.

18Counsel for the plaintiff submitted that the evidence showed that Landers received a wealth of material from the insurers responsible for this subrogated recovery action, which described the relevant insured as the Dexus Holdings, not DXFM. Landers, on the instructions they then had, then prepared a draft letter of demand, which was in the name of the plaintiff, and asserted that the plaintiff was the proprietor of the IBM Tower and that the plaintiff had “engaged the defendant to undertake the upgrade on the generators”.

19Importantly, as emphasised by the plaintiff’s counsel in his submissions in reply, the evidence was that in response to Landers’ request for approval of the draft letter of demand in around mid-May 2018, Ms Eleesha Way of Dexus instructed that: “The letters [sic] look fine to me”. Plaintiff’s counsel submitted that “insofar as the draft letter was making an allegation about who was the owner [of the IBM Tower] and who was the contracting party, that instruction from Ms Way of Dexus was not right”. He argued that, if it was necessary to prove that the mistake was made by the plaintiff itself, then this evidence established that fact.

20Finally, plaintiff’s counsel said that Mr Abrahams’ evidence showed that the mistake was only discovered after Landers received the defendant’s defence on 28 July 2021, which prompted further investigations. In due course, these investigations confirmed that the entity having the characteristics of being the owner of the IBM Tower and the party that entered into the Contract, was named DXFM, not Dexus Holdings. Further, Mr Abrahams deposes to there being no prejudice to the defendant of by reason of the amendment sought, at least as far as he is aware.

Defendant’s submissions

21The defendant did not lead any evidence, except that it produced and sought to rely on the invoices listed in the particulars to the statement of claim, noting that they were directed to the “Dexus Southgate Trust”. Further, senior counsel for the defendant agreed that it was not in dispute that the statement of claim identified characteristics (namely, ownership of the IBM Tower and entry into the Contract with the defendant) that in fact described DXFM, not the plaintiff. Thus, the facts of this case were not akin to those in Bridge Shipping, where the applicant intended to join the owner and did join the owner. The defendant also did not allege any relevant prejudice.

22The second iteration of the defendant’s written submissions bear only a passing resemblance to the defendant’s oral argument. The written submissions begin by asserting that the plaintiff does not clearly identify the mistake that was made, or articulate the basis on which the plaintiff contends that it was a mistake “in the name of a party”. After referring to McHugh J’s three limitations, the defendant advances the trite proposition that “simply establishing that the wrong party commenced the proceeding is not sufficient, it must be established by evidence that it was a result of a mistake ‘in the name of a party’”.

23The next several paragraphs of the defendant’s written submissions essentially focus on the assertion in the plaintiff’s written submissions (and proposed amended statement of claim) that the mistake concerned the entity “that was responsible for the operation and maintenance of the generators”. They assert that there is no evidence that the plaintiff had a mistaken belief that it was responsible for the operation and maintenance of the generators. This is a distraction. I accept this was the somewhat imprecise expression used in the plaintiff’s written submissions, but it was not in fact how the plaintiff articulated the characteristics of the entity it intended to name as plaintiff. As noted above, the characteristics referred to in the draft letter of demand approved by the plaintiff and in the statement of claim, were (in effect) owner of the IBM Tower and party to the Contract.

24However, the defendant does identify these characteristics in paragraphs 8 and 9 of its written submissions, asserting that “[t]here is no evidence that Dexus or the insurers mistakenly thought or believed” that Dexus had these characteristics. The written submissions relevantly conclude:

“Indeed, the purchase orders/invoices referred to in paragraph 3 of the statement of claim refer to the Dexus Southgate Trust. There is no suggestion that there was a belief or understanding that Dexus Holdings Pty Ltd was the trustee or the responsible entity of that trust. There is a distinction between mistake and ignorance”, citing Telstra Corporation v Roycroft (1997) 77 FCR 358, 367.E (“Telstra”).

25Again, this is a distraction (and I note that the relevance of a belief about what entity was the RE of the Dexus Southgate Trust, and the decision in Telstra featured only obliquely in the defendant’s oral submissions). The plaintiff does not rely on a mistake about the RE of the Dexus Southgate Trust, nor does it need to. I have already identified the particular characteristics it identifies, the key characteristic being the entity that engaged the defendant.

26Further, Telstra is a case about whether the Administrative Appeals Tribunal wrongly characterised the respondent as being mistaken, as opposed to ignorant, as to a right to make a claim for workers compensation. Thus it has no direct application to the facts of this case. In any event, the suggestion that the plaintiff was ignorant rather than mistaken about the name of the relevant entity is at odds with the primary argument advanced by senior counsel for the defendant in oral submissions. As noted below, senior counsel repeatedly asserted that the plaintiff did not make a mistake, because it knew that the owner and contacting party was DXFM (or, at least, that the evidence fell short of establishing that it did not know).

27Turning to senior counsel’s oral submissions, these were broadly to the effect as follows:

(a)   What is necessary under the test stated by McHugh J in Bridge Shipping is not just an intention to bring proceedings against a person or an entity with particular characteristics. There must be a mistake by the plaintiff as to the entity which has those characteristics. Here, there is no evidence that Dexus Holdings, or the Dexus group, was under that mistaken belief. Mr Abrahams' affidavit suggests by implication that Dexus Holdings gave instructions that it was the contracting party and owned the IBM Tower, but there is no basis for that in the material: “None at all”.

(b)   For example, there is no evidence of that in relation to the submission that the plaintiff did not have a copy of the Contract. There is nothing to show that Dexus Holdings did not have the Contract, or believed it was the contracting party, or the Contract could not have been obtained, or that Dexus Holdings believed it had entered into the Contract. There is no evidence of a misapprehension by the Dexus entities at all. The evidence goes no further than that Landers enquired of the loss adjustor whether the loss adjustor had the Contract, and the loss adjustor said it had not been provided.

(c)   There are cases where a solicitor had the task of identifying the party, they then made some enquiries and, on the basis of the enquiries, sought and were given instructions to name that party in the proceeding. However, the enquiries were deficient and the solicitors identified the wrong entity as having the characteristic upon which the claim was based. That is not the case here. Here, the plaintiff knew the true position and there is no evidence that instructions were sought by the solicitor as to the true position. In the absence of such evidence, the court ought to proceed on the basis that Dexus – a large commercial property enterprise – would be perfectly well aware of the proper identity of the entity that owns the IBM Tower, the capacity in which it owns it and which entity entered into the Contract.

(d) It is not simply a matter of saying that the solicitor’s omission was particularly egregious. Where the party knows, it cannot be mistaken based on the lack of knowledge of the solicitor. In this case, the solicitor's lack of knowledge is because of the failure to ascertain the knowledge of the plaintiff, and that is not relevantly the mistake of the plaintiff entitling it to leave to amend. Of course, if the solicitor asked Dexus Holdings, and Dexus Holdings was confused or there had been a change in staff and they made a mistake and gave the wrong instruction, it would come within r36.01(4). But where no instructions that are erroneous are provided, and there is no mistaken belief on the part of the plaintiff and it is not a case where the plaintiff was relying upon the solicitor to make enquiries to ascertain the correct defendant, it cannot be a case where mistake of the solicitor becomes the mistake of the plaintiff.

(e) The court ought to accept that there is no evidence that Dexus Holdings did not know, and it would be very embarrassing for Dexus Holdings not to know the identity of an RE which owned a city tower on behalf of a trust, the beneficiaries of which were participants in a managed investment scheme, and where the invoices identified the trust to which the invoices were directed. And nor is there any evidence that they did not have the Contract. This is not like a case where a liquidator is appointed to a corporate group and, through lack of knowledge about the group’s internal structures, brings a proceeding in the name of the wrong group entity.

(f) In the absence of evidence that Dexus Holdings did not know which entity in its group was the RE that owned the IBM Tower and entered into the Contract, the court should be satisfied that the plaintiff was not only not under a mistake, but it knew the true position. And if the mistake occurs because its solicitors proceeded without taking steps to identify the true position, then it cannot be said that the plaintiff was mistaken.

(g)   Here it is not necessary to draw the distinction between knowledge and ignorance, because the plaintiff had knowledge. And if there was ignorance on the part of the solicitors, it is because of the failure to make inquiries of the plaintiff.  This cannot be converted  into a mistake of the plaintiff resulting in the plaintiff commencing proceedings in the name of the wrong party.

(h)   The defendant accepts that the rule is intended to have a benevolent operation, but there has to be limits and the limits are those identified. The court would have to do a lot of violence to the construction that McHugh J gives to the rule if it said it can apply when the plaintiff in fact knows the identity of the entity which entered into the Contract and owned the IBM Tower and there was no mistake in the instructions given to the solicitors.

28At the conclusion of submissions, I indicated to the parties that I would be assisted by any authorities discussing either of two particular issues that had arisen in the course of oral submissions. First, where the mistake is made by the plaintiff and, second, where responsibility for the mistake rests with the solicitor for the relevant party. The defendant later provided the decision of the Court of Appeal of the Northern Territory in Mannin Pty Ltd v Metal Roofing and Cladding Pty Ltd (Northern Territory Court of Appeal, Martin CJ, Kearney and Priestley JJ, 26 September 1997) (“Mannin”). The plaintiff provided five authorities.

Analysis

29This is not a case like Bridge Shipping where a party by its statement of claim identifies the characteristics of the entity it intended to sue (“the owner of the vessel”), and sues that entity. The relevant characteristics in this case as consistently stated by and on behalf of the plaintiff in the original draft letter of demand, the two letters of demand as sent and (most relevantly) the statement of claim, are “owner and operator of the IBM Tower” and party to the Contract. The plaintiff Dexus Holdings is neither of those things. Those are characteristics that are in fact true of DXFM, and no one else.

30Thus, I am satisfied (and the defendant appeared to concede) that the plaintiff has established the second of McHugh J’s three limitations on rule 36.01(4) – that is, the mistake (if there was one) was in the name of the plaintiff. I would take the liberty of paraphrasing the observations of Kyrou J (as he then was) in PD Enterprises Limited v Pacific Brands Clothing Pty Ltd [2012] VSC 494 (“PD Enterprises”) at [26]: Dexus Holdings was not named as a plaintiff for any other reason or in any other capacity, such as its status as the holding company of the Dexus group.

31The defendant also does not seek to oppose the application based on any relevant prejudice, the third limitation. Nor could it. The evidence establishes that the defendant has known the correct name of the plaintiff at least since the proceeding was commenced, and probably earlier. I also note in passing that the defendant did not seek to advance an argument that r36.01(4) was limited to mistakes in the name of a defendant. Such an argument would be contrary to the words of the provision itself and to authority. This leaves the first limitation – there must be a mistake.

32In submitting that there was no mistake, senior counsel for the defendant’s oral submissions (as summarised above) focussed primarily on what it asserted was the lack of evidence that Dexus Holdings, or the Dexus group, was under a mistaken belief. The submissions seemed to me to distil to the following:

(a)   first and foremost, the plaintiff had failed to adduce evidence (by way of Mr Abrahams’ affidavit or otherwise) that Dexus Holdings itself was under a mistaken belief that it was the owner of operator of the IBM Tower and the party to the Contract;

(b)   there was no evidence that Dexus Holdings did not have the Contract and it would be very embarrassing if Dexus Holdings did not know the true position;

(c)   because of (a) and (b) above, the court could be satisfied (which I took to mean should infer) that Dexus Holdings in fact knew the true position – there is no need to draw a distinction between knowledge and ignorance because the plaintiff had knowledge; and

(d)   it is not sufficient to establish that the solicitor was mistaken in circumstances where the solicitor failed to ascertain the knowledge of the plaintiff – where no mistaken instructions were provided and it is not a case where the plaintiff was relying on the solicitor to make the necessary enquiries, it cannot be converted into the type of case where the mistake of the solicitor is the mistake of the plaintiff.

33There are at least three difficulties with these submissions. First, it is simply not correct to assert (as senior counsel did on numerous occasions) that there was no evidence that Dexus Holdings or Dexus group was under a mistaken belief or gave erroneous instructions. Second, I am not persuaded that I should infer that the plaintiff knew the true position. Third, in my view, the suggestion that a mistake by the solicitor alone is insufficient to engage the rule except in the limited circumstances suggested by the defendant is not supported either by the proper construction of the rule or by authority.

34Turning first to the asserted lack of evidence of a mistake by Dexus Holdings, the repeated emphasis on this in the course of oral submissions left me with the clear impression that those advising the defendant considered this its best point. Further, it seems likely that this explains why they were determined to keep the defendant’s powder dry on this issue until the latest possible moment. Had they disclosed it earlier, it would have provided the plaintiff with the opportunity to swear a supplementary affidavit deposing more directly to the plaintiff’s role in the mistake.

35But as the plaintiff’s counsel submitted in reply, there was evidence of Dexus Holdings itself being mistaken. That evidence was constituted by Landers forwarding a draft of the first letter of demand to Eleesha Way of Dexus and her response that: “The letters [sic] look fine to me”. Importantly, the draft letter that Ms Way thereby approved was mistaken in two key respects:

(a)   first, in asserting that Landers’ client was Dexus Holdings was “the proprietor of the IBM office tower at 60 City Road, Southbank, Victoria”; and

(b)   second, that in early 2015 Dexus Holdings engaged the defendant to undertake an upgrade on the generators.

36The plaintiff can fairly be criticised for not adducing evidence of its participation in the mistake that was both more direct and more comprehensive. Indeed, had the plaintiff known earlier the direction that the defendant’s oral argument would take, it is likely that it would have done so. However, in my view, any deficiency in the evidence was a matter of degree and not substance. I am satisfied on the evidence that Dexus (embodied for this purpose by Ms Way) was mistaken in approving a draft letter of demand that wrongly identified the plaintiff as having the key characteristics of owner and operator of the IBM Tower and the party to the Contract.

37That finding is sufficient to dispose of the application. But even putting this evidence to one side, I am not persuaded that I should infer or otherwise find that the plaintiff knew the “true position” or that a mistake by a solicitor alone does not engage r36.01(4). In my view, this submission ignores the reality of large corporate groups, and particularly those involved in promoting and acting as RE for managed investment schemes. The complexity of the corporate and trust structures of the latter are notorious. It is apparent from exhibit “AA-1” to Mr Abraham’s affidavit that the Dexus group is no exception. In this case, the scope for error was amplified by the fact that Landers, while formally acting for the plaintiff, was taking instructions from an insurer and the loss adjustors engaged by the insurer.

38To my mind, the submission also has the unwarranted effect of holding a plaintiff up to a higher standard in seeking relief under r36.01(4) than a defendant. Taken to its logical extreme, it would suggest that where there are documents or data held by a corporate group that would reveal the true position about which entity has the relevant characteristics, the group entities can be taken to know that fact, regardless of the actual knowledge of the individuals who happen to be giving the relevant instructions. It also excludes consideration of false assumptions or gaps in the knowledge or enquiries of the solicitors involved. This overlooks precisely the kinds of errors and omissions that often lead to mistakes by companies in the circumstances of the plaintiff or its solicitors (or both).

39Senior counsel for the defendant sought to differentiate the circumstances of this case from the examples sometimes seen in the authorities where a liquidator is appointed to a corporate group and, through lack of familiarity with the group structure, commences a proceeding in the name of the wrong entity. But, to my mind, litigation involving a solicitor acting primarily on instructions of an insurer and its loss adjuster, but formally engaged by the plaintiff, is no less susceptible to mistakes by those involved than an external administration.

40I accept that more thorough due diligence on the part of the solicitors in this case (such as by conducting title searches) could well have identified the correct name of the Dexus group entity that owned and managed the IBM Tower and unearthed the Contract. However, as the authorities make clear, the reasonableness of the plaintiff’s (or its solicitor’s) error in mistaking the name, is not relevant to the granting of leave under r36.01(4).

41Silverstone Holdings Pty Ltd v American Home Assurance Co (1997) 8 WAR 516 is an example of case involving appointment of a liquidator and a mistake as to which entity was the trustee of which trust. Like the present case, it concerned a mistake in the name of a plaintiff, not the more common misnaming of a defendant. The Full Court of the Supreme Court of Western Australia held that there was a genuine mistake about the name of the person who occupied the position of the trustee of a particular trust, and allowed amendments enabling a plaintiff to sue in its capacity as trustee of that trust. White J held (at 528) as follows:

“In the present case, it is clear that the wrong person (Misty) was named as first plaintiff in the writ. This was as the result of a mistake both of the liquidator of Misty and of the appellant and the mistake can, I think, fairly be attributed to fault on their parts. However, "mistake" includes an error made with fault: see Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 at 719, 721. There seems no doubt that the mistake was a genuine one and it is apparent that it did not mislead the respondent.”

42Similarly, but with a particular focus on the role of the applicant’s solicitors, Kyrou J in PD Enterprises at [32] held:

“Had the plaintiff’s solicitors conducted basic company and business name searches prior to the commencement of this proceeding, they would have discovered the correct name of the defendant and no amendment would have been required. However, the reasonableness of the plaintiff’s error in mistaking the name of the defendant is not relevant to the granting of leave under r 36.01(4) of the Rules.”

43In my view, a mistake may be more unreasonable where solicitors fail to make appropriate enquiries of their client that may have revealed the true position, but it is no less a mistake for being made on behalf of the party, rather than directly by the party themselves. There is no support in rule 36.01(4) itself or in the authorities for any gloss limiting the application of the rule in the manner suggested by the defendant’s senior counsel. Indeed, the Mannin decision relied on by the defendant and discussed in detail below, confirms that it is the intention of the persons who caused the writ to be issued that should be the focus in determining whether the wrong party has been named.

44Applying any limitation to the operation of rule 36.01(4) also flies in the face of McHugh J’s express finding in Bridge Shipping that it is a remedial rule that should be given a beneficial interpretation and “the widest interpretation which its language will permit”. The rule requires only that there be a mistake in the name – it says nothing about the source of the mistake.

45Thus, I do not agree with senior counsel for the defendant that a mistake by a solicitor only becomes a mistake of a party where the plaintiff was relying on the solicitor to make the necessary enquiries. Nor do I agree that a mistake by a solicitor for a party ceases to be a “mistake” for the purposes of the rule, where it can be shown (or inferred) that the party itself might have corrected the mistake if it had been asked the right questions. This may mean the mistake is more egregious, but it is still a mistake.

46Finally in this context, I agree with the finding of Judge Anderson of this court in Perkins v Uniting Church of Australia Property Trust [2006] VCC 1773, in which his Honour held (at [15]):

“Although in certain circumstances it may be appropriate that plaintiffs should take responsibility for their solicitors’ actions and should not be granted relief where an alternative remedy against their solicitors might exist, I do not consider that this is such a case. The plaintiff should not be denied the relief it seeks on that basis.”

47As noted above, after the hearing, the defendant provided a copy of the decision in Mannin, with references to the particular passages on which it relied. Surprisingly, it did not feature in the defendant’s written or oral submissions. I say “surprisingly” because, on one view, it could be said to support some of the defendant’s arguments discussed (and rejected) above. In the absence of argument on the application of Mannin to the present case, it is appropriate that I set out the passages relied on by the defendant in full.

48All three judges of the court reached the same conclusion (upholding the decision of Angel J), but their reasons varied. Martin CJ summarised the evidence and foreshadowed his finding as follows (at 2):

“The only evidence in the case was that of the solicitor, Mr Winter. It was not challenged. Notwithstanding the language that he used, the evidence does not really suggest that he made a mistake, rather he acted in accordance with instructions which he had received “to attempt to recover from the defendant ... the loss of profits that would be suffered by the plaintiff ...”. At the time those instructions were given the business of the supermarket had not commenced. The solicitor says that he mistakenly believed when he drafted the Statement of Claim that Mannin Pty Ltd would be the company that would conduct the business, but if there was such a mistake then it was made upon the instructions of Mr McElwee. It must be inferred that at the time the instructions were given, Mr McElwee intended that Mannin Pty Ltd would conduct the business on its own account, and that it was later decided that Eire Pty Ltd would do so. Mr Winter deposes that the change of plan was not conveyed to him.”

49The passages on which the defendant relies on in the judgment of Kearny J include the following (at 36-7):

“Here the appellant relies wholly on a mistake by Mr Winter, who caused the writ to issue. This approach accords generally with what Evans LJ said in International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corp of India [1996] 1 All ER 1017 at 1026:

“When it is said that the wrong plaintiff has been named, this must be taken as a reference to the intention of the persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee and his legal advisers.”

In terms of what Donaldson LJ said in Evans Constructions Co Ltd (supra) at 821 - see p21 - and what Toohey J said in Bridge Shipping (supra) at pp31-32, to categorize that mistake the question to be answered is: what were Mr Winter’s intentions at the time he caused the writ to issue, assessing the evidence of those intentions in the light of the then surrounding circumstances, including his then state of knowledge and belief? His decision to nominate the appellant as plaintiff is to be assessed in light of matters as they then stood. As Bryson J said in Tomsimmat & Associates Pty Ltd v G & R Investments Pty Ltd (1993) 25 1PR 545 at 551:

“Whether a decision or event is a mistake must in my opinion be judged according to the facts and circumstances which existed when it happened, and not according to the wisdom of hindsight.”

…

In my opinion, the claim to correct a mistake in the name of a party under r36.01(4) fails on the facts. Mr Winter made no mistake as to his client’s instructions as to the identity of the proposed supermarket trader, at the time he caused the writ to issue. There is no evidence from the client or from anyone other than Mr Winter, as to those instructions or that identity. As far as Mr Winter’s instructions went, the claim for loss of profits he was instructed to make was an element of the loss suffered by the appellant in its capacity as purchaser of the building materials. It may be that the client Mr McElwee was mistaken in instructing Mr Winter to that effect; however, no evidence has been advanced of mistake by the client, the appellant does not seek to rely on any such mistake, and Mr Winter did not mistake the instructions he received.

50The defendant also relies on 39-40:

“An immediate practical problem in applying the test in Bridge Shipping (supra) is that unlike the examples mentioned at p15 - landlord, employer, owners or shipowners - the “particular description” relied on here is “the intended operator of the supermarket”. Analyzing the situation in accordance with that test, the mistake relied on by the appellant was solely that of Mr Winter. For the appellant to succeed, the conclusion which had to be drawn was that Mr Winter intended in January 1993 that the claim for loss of profits be made by the entity to have operated the supermarket during the period of delay. That conclusion cannot be drawn from Mr Winter’s affidavit, from which the state of his then knowledge and belief are to be inferred. Such a conclusion is inconsistent with his affidavit (pp4-6), and the terms of the statement of claim (p1). Those terms indicate that in accordance with his instructions his intention was that the purchaser of the supermarket, the appellant, would be the plaintiff; he acted in accordance with that intention. The mistake upon which the instructions to Mr Winter appear to have proceeded at the time was that the appellant had the right to claim for loss of profits against the respondent. That was not a “mistake in the name of a party”. Mr Winter made no relevant mistake, as far as concerns r36.01(4). The appellant’s case therefore fails to meet the first of the “three limitations” (p30) on the right to amend under r36.01(4), specified by McHugh J in Bridge Shipping (supra) at 88; there was no mistake.

51The defendant relied on the whole of the brief reasons of Priestley J, who held as follows (at 41):

“The proceedings had been brought in the name of the plaintiff by the plaintiff’s solicitor, on the instructions of the plaintiff’s directors. The evidence does not show that at the time of giving the instructions the instructions were in any respect mistaken by the givers or misunderstood by the solicitor. It may be events between the giving of the instructions and the commencement of the proceedings meant that the instructions should have been changed; however, they were not. Acting on his unchanged instructions the solicitor commenced the proceedings. I do not think these circumstances disclose any mistake having been made in the name of the plaintiff.”

52With respect to Kearney J, I would suggest that it is both the first and the second of McHugh J’s limitations that the plaintiff in Mannin failed to meet. As Martin CJ found, like the facts in Bridge Shipping, there was no mistake, and there was no mistake in the name of the plaintiff. And as Priestley J explained, at the time of giving the instructions, the instructions were not mistaken, and those instructions did not change up to and including the commencement of the proceedings. Thus there was no mistake by the solicitor. There was also no evidence of a mistake by the director of the plaintiff.

53This is to be contrasted with the present case, where the evidence showed that the solicitor responsible for causing the writ to be issued was mistaken about the identity of the entity that possessed the two relevant characteristics. The defendant does not appear to suggest otherwise. Rather, it argues that where it is possible to infer that the plaintiff knew the true position, evidence that the solicitor alone was mistaken is not enough.

54Importantly, the references in the passages above to there being no evidence from the client or from anyone other than the solicitor, should not be taken as suggesting that such evidence is a pre-requisite to a finding of mistake by a party. A proper reading of those passages makes clear that the question of the client’s state of mind only arose because of the court’s primary finding that the solicitor was not mistaken. The court was essentially saying that, in the absence of any mistake by the solicitor, the application might be saved by evidence of a mistake by the client, but none had been given.

55In my view, there is nothing in the reasons in Mannin to support the defendant’s submissions. On the contrary, to my mind, the reasons (particularly those of Kearney J) expressly acknowledge that where the solicitor is the person who caused the writ to be issued, a mistake by that solicitor is sufficient to engage the remedy provided under r36.01(4).

Case management concerns

Case conferences generally

56The format and rationale for case conferences conducted by a division lawyer in the Commercial Division of the court are set out in an information sheet provided to parties at the time they are first invited to participate in the case conference. This provides as follows:

“Case Conferences in the Commercial Division of the County Court

This proceeding has been identified by a judicial officer as one that may benefit from a case conference conducted by the Commercial division lawyer, either in relation to a particular issue that has arisen in the course of the proceeding, or as part of more general ongoing active case management of the proceeding to trial. The court offers case conferences as part of its obligation to further the overarching purpose under the Civil Procedure Act 2010, and active and positive participation by parties is strongly encouraged.

Case conferences provide parties with the opportunity to explore case management options in a less formal setting, with the assistance of a court sanctioned facilitator. Further, parties with a pending directions hearing or engaged in interlocutory disputes, regularly find common ground or a compromise solution shortly before the hearing. On occasions, this emerges in the course of the hearing itself. However, by this stage, most or all of the considerable costs associated with preparation and appearances have been incurred. This can often become an impediment to resolution or, indeed, the only issue to be resolved.

Case conferences are therefore designed to provide an early opportunity for practitioners or (where appropriate) parties, to engage directly with each other under the guidance and encouragement of the division lawyer (a trained mediator). The aim of the case conference is to enable the parties to articulate the real issues in dispute, receive feedback from the division lawyer, explore a compromise of some or all of the matters in dispute and identify other cost-effective case management approaches. Ideally this will occur sufficiently in advance of any forthcoming hearing that any resolution or narrowing of issues will result in a significant cost saving to the parties.

The case conferences are conducted along relatively informal lines. However, attendees should assume, unless otherwise stated, that anything discussed at a case conference is not confidential or without prejudice, and that the issues discussed will generally be relayed by the division lawyer to the judge or judicial registrar dealing with the matter. Further, in most cases, the division lawyer will have discussed the matter with the relevant judicial officer in advance of the case conference.

However, if any attendee considers that a resolution of any issues might be assisted by a confidential and without prejudice exchange, they should raise this with the division lawyer at or before the conference. The division lawyer can then explore with the parties how that might be arranged.

Represented parties must ensure that counsel (where briefed) or the legal practitioner with the principle carriage of the proceeding attend the case conference and that attendees be limited to the minimum number of practitioners necessary, so as to minimise costs. The participation of the parties personally (where they are represented) is not mandatory and is a matter for the legal practitioners to consider.

The division lawyer cannot make Court Orders or directions. However, the division lawyer may offer guidance as to the case management expectations and approach in the Division and assist with drafting proposed consent orders.

His Honour Judge Woodward – Head of the Commercial Division”

57In short, a case conference is an attempt to replicate the kind of exchanges that often occur between counsel the day before a hearing or (pre-pandemic) when waiting to be reached in a daily list. A frank discussion about the merits of an interlocutory application at this time will often identify common ground or areas for compromise, and result in either a narrowing or resolution of the dispute. However, by this point, most or all of the costs of the application have already been incurred and those costs can then become the only sticking point to a full resolution.

58A case conference should enable that frank exchange of views sufficiently in advance of a hearing that, if the issue can be resolved, most of the costs are avoided. It also has the enhancement of a neutral facilitator provided by the court, who can pass on any relevant preliminary concerns or views expressed by the judicial officer that will hear the application and “strength test” the parties respective positions. And unless the parties and the division lawyer agree otherwise, the division lawyer can give feedback to the judicial officer who can give more directed feedback to assist the parties in any further discussions before the hearing (either directly or in a further case conference with the division lawyer).

59The case conference thus constitutes a direct engagement of the powers and responsibilities under the CPA. It is the court exercising its power under CPA ss47 and 48(1) to ensure that pre-trial procedures are managed and conducted in accordance with the overarching purpose. More particularly, it does this by encouraging the parties to cooperate with each other in the conduct of the proceeding and to settle part of the proceeding (namely, the interlocutory dispute) (CPA s47(3)(d)). And it invokes the responsibilities of the parties and their legal advisers to comply with their overarching obligations and, most notably:

(a)   their paramount duty to the court to further the administration of justice in relation to any civil proceeding including any interlocutory application (CPA s16); and

(b)   their overarching obligations to only take steps to resolve or determine the dispute (CPA s19), to co-operate (CPA s20), to use reasonable endeavours to resolve the dispute (CPA s22), to narrow the issues in dispute (CPA s23) and to minimise delay (CPA s25).

60But a case conference will only be effective if both parties embrace those duties and obligations, including by candidly disclosing and debating the arguments they intend to advance. Without that, there is no opportunity for identifying potential weaknesses in each parties positions and exploring compromise – there is nothing for the opposing party’s counsel or the division lawyer to question and test. It appears that this was precisely the difficulty that counsel for the plaintiff and the division lawyer confronted in this case, as discussed below.

The case conference in this proceeding

61It is my usual practice when sitting in the Duty Court to review documents filed in an application about a week before the hearing date, with a view to identifying those that may benefit from a case conference. In my experience, any dispute over pleadings will almost invariably fall into this category. I then contact a division lawyer, discuss the issues in the application, pass on any preliminary views I may have formed about the prospects of the application and request that they contact the parties to schedule a case conference. The division lawyer will generally endeavour to schedule the conference a few days in advance of the hearing, so hearing costs can be avoided and there is sufficient time to adjourn and re-commence the case conference if that seems desirable.

62On this occasion, I reviewed matters listed for hearing a week or more hence on around Thursday 18 November 2021, and formed the view that this application (listed for hearing the following Thursday) was suitable for a case conference. That view was influenced primarily by the fact that the defendant had not filed any material in response suggesting a substantive basis for opposing the application, which otherwise seemed (on a superficial review) uncontroversial. I also noted that the practitioners involved (solicitors and counsel) on both sides were experienced commercial lawyers whom I expected would take a principled and practical approach to resolving the dispute.

63I therefore directed a Commercial division lawyer to contact the parties and endeavour to arrange a case conference, which she did by email that afternoon. Her email read (in part) as follows:

“By way of introduction, my role is to assist the judges and judicial registrar of the Commercial Division in the active case management of proceedings, consistent with the Division’s focus both on reducing the need for costly appearances and encouraging orders to be made on the papers and by consent.

I note the plaintiff’s application to file an amended writ and statement of claim (“application”) is listed for hearing next Thursday 25 November, before the Duty Judge: his Honour Judge Woodward. Having considered the application, his Honour has directed that I contact the parties to ascertain the status of the application, and if the application is opposed: to encourage the parties (counsel, where briefed) to participate in a case conference with me to facilitate a resolution or narrowing of the issue(s) in dispute and ensure the application is ready for determination, so as to shorten the hearing time and potentially avoid the need for the hearing.

64The division lawyer attached the case conference information sheet set out above and asked the parties to suggest suitable times before Wednesday 24 November for the holding of the case conference. The solicitors for both parties initially responded favourably to the proposal, with the plaintiff’s solicitors responding (relevantly) as follows:

“We consider that a case conference may have great utility because, although the defendant’s solicitors have twice told us they oppose our client’s application, they have not said why. We would respectfully invite the defendant’s solicitors to articulate the basis of their opposition (and, if evidence is to be relied upon, to serve it) before the case conference.”

65However, on 19 November 2021, the division lawyer reported to me that she had spoken by telephone with the supervising partner of the solicitors acting for the defendant, and that he had expressed some uncertainty and reservations about the case conference. I was informed that he told the division lawyer that the defendant had not informed the plaintiff of the basis for its objection and intended to do so by way of written submissions. I was concerned to avoid further delay, so I determined to make orders requiring the parties to participate in the case conference and confirming the court’s expectations of the parties.

66The own motion orders I made on 19 November 2021 were as follows:

“OTHER MATTERS

A.  The court offers a case conference to parties in advance of the hearing of an interlocutory application where the court considers that a facilitated discussion between the parties may lead to a resolution of all or part of the issues in dispute. This in turn can reduce both the costs to the parties and the burden on the court’s time and resources.

B. The court’s experience is that case conferences can be particularly valuable in disputes concerning the adequacy of pleadings, where a direct discussion between legal advisers (and particularly the counsel involved in drafting the pleadings) can quickly identify the nature and extent of any suggested deficiencies and determine if the matters in dispute can be resolved by agreement and without a hearing.

C. Parties and their legal advisers are reminded that co-operation of the kind facilitated by a case conference is one of their overarching obligations under Civil Procedure Act 2010 (Vic). In particular, if a legal practitioner considers that a pleading filed or sought to be filed on behalf of another party fails to comply with the Rules or is otherwise deficient, the basis for that view should be communicated to the opposing party at the earliest opportunity.

THE COURT ORDERS THAT:

1.   By 24 November 2021 at 2pm, counsel for the parties are directed to participate in a case conference (via videoconference) with the Commercial Division Lawyer to identify the real issue(s) in dispute and explore a resolution or narrowing of the issue(s) in dispute.

2.   The Commercial Division Lawyer will contact the parties’ legal representatives to arrange the case conference.

3.   The parties’ legal representatives read the Case Conference Information Sheet attached to this Order, prior to participating in the case conference.

4.   Reserve liberty to the parties to apply by email to the Commercial Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.

5.   Costs reserved.”

67The case conference was duly held on Wednesday 24 November 2021 at 11.00am. The division lawyer had allocated an hour. Consistently with the case conference information sheet, the division lawyer later relayed to me that it had been attended by counsel Mr Whelan for the plaintiff and Mr Ross for the defendant. The division lawyer reported that both counsel were cooperative and relatively open, however the defendant’s submissions had not been filed (Mr Ross indicated they would be filed and served by noon on that day) and Mr Ross did not wish to elaborate extensively on the nature of defendant’s arguments beyond indicating that:

(a)   the case is somewhat unusual, in that it involves the substitution of plaintiff (rather than defendant as is usual); and

(b)   the plaintiff fails to establish that this situation falls within the scope of the rule.

68Counsel for the plaintiff said that he was unable to take the issues much further in the absence of details of the defendant’s submissions and the case conference ended without any resolution.

69The first iteration of the defendant’s written submissions were filed and served shortly after the conclusion of the case conference. Contrary to what had been foreshadowed both by the supervising partner of the solicitors for the defendant to the division lawyer on 19 November 2021 and by Mr Ross, they were devoid of substance and added nothing to what Mr Ross had apparently said in the case conference about the defendant’s arguments. For reasons that will become apparent, I set them out in full (omitting the court heading):

“DEFENDANT’S OUTLINE OF SUBMISSIONS

1.The proceeding concerns an explosion of a back-up generator at 60 City Road Southbank on 16 April 2015. It was issued by Dexus Holdings Pty Ltd (“Dexus Holdings”) on 15 April 2021, the last day within the limitation period.

2.Dexus Holdings seeks orders to substitute Dexus Funds Management Limited as plaintiff pursuant to rules 36.01(1) and 36.01(4).

3.But for the expiry of the limitation period, the application to substitute would be made under rule 9.06.

4.It is made under rules 36.01(1) and 36.01(4) to overcome the limitations issues.

5.Rule 36.01(4) permits substitution where a mistake has been made in the name of a party.

6.It is odd that a plaintiff alleges that it was mistaken as to its own identity, as opposed to the identity of another – e.g. a defendant.

7.The plaintiff has the burden to establish the basis on which the Court can exercise its discretion to substitute another party for the plaintiff as permitted by rule 36.01(4). It has failed to do so.

24 November 2021

David Collins

Jordan Ross”

70The submissions thus comprised no more than bland statements of the background and legal basis for the application, and what in pleading terms would be described as a bare denial. There was not even a hint of the substantive arguments the defendant was proposing to advance. The only part of the submissions that might be said to address the merits of the application is the sentence: “It is odd that a plaintiff alleges that it was mistaken as to its own identity, as opposed to the identity of another – e.g. a defendant”. It is not a sustainable ground for opposing the application, and (as noted above) was not an argument advanced by senior counsel for the defendant on the hearing of the application. It therefore appears to be no more than a casual (and irrelevant) observation. In my view, the submissions as a whole (and this sentence in particular) were an affront both to the plaintiff and to the court and unworthy of the counsel named.

71I therefore arranged for my associates to email the parties as follows:

“Dear practitioners

We refer to the submissions just submitted on behalf of the defendant. His Honour considers the submissions both deficient and unhelpful and notes that they appear to emblematic of the lack of co-operation shown by the defendant in dealing with this application to date. His Honour directs that the defendant's counsel provide a proper outline of submissions, including pinpoint references to the authorities on which they rely, by no later than 9.00am tomorrow.”

72Having noted that it seemed from the submissions that the defendant had retained Mr Collins to appear at the hearing, I also made enquiries of the division lawyer and my associates and confirmed that the submissions were the first indication of Mr Collins’ involvement. This was despite the request that the case conference be attended by counsel briefed to appear on the hearing of the application. While I can understand that the defendant may have been reluctant to incur the cost of Mr Collins attending the case conference, the fact of his involvement should at least have been disclosed, so the question of his attendance at the case conference could have been considered and discussed.

73The second iteration of the defendant’s submissions were emailed to my associates and the plaintiff’s solicitors at 8.57am on the morning of the hearing, three minutes before the deadline I had imposed of “no later than 9.00am”.

74I took the opportunity at the commencement of the hearing to make a statement to the parties elaborating on my concerns about the way in which the defendant had conducted itself in relation to the application up to that point. I began by indicating that I had followed the developments in the application relatively closely, and that I had a sense that there has been a pattern of conduct on behalf of the defendant to remain coy, to put it mildly, about the nature of the arguments they were proposing to advance. I said that, having regard to the provisions of the CPA:

“It seems to me… that the appropriate course in a case like this with sophisticated parties and highly skilled and sophisticated representation, if there's a good point to be made on the question of an amendment, that should be shouted from the rooftops. Particularly if it’s a killer point. If it’s an arguable point, the appropriate course is for the nature of the argument to be fully canvassed, particularly between counsel, and identify to what extent the parties can reach common ground. And the court has consistently with the practice that the court’s been trying to promote, facilitated that process in this case by encouraging the parties to attend a case conference.”

75I confirmed that although there was some initial resistance on the part of the defendant to participate in the case conference, it did ultimately agree to do so. However, it seemed that the process was again hampered by the lack of willingness on the part of the defendant to meaningfully articulate the nature of the arguments it proposed to make. I also expressed reservations about the last minute disclosure of Mr Collins’ involvement.

76On the merits of the application, I said that it seemed to me that the application was a paradigm example of the cases that are discussed in David Bailey and John K Arthur, LexisNexis. Civil Procedure Victoria at [36.01.65]. I said that although the proposed amended statement of claim refers to the operation and maintenance of the generators, to my mind the starting point in this case for discerning the characteristics of the party intended to be named, was the Contract. It was clear from the existing statement of claim that the plaintiff understood that the relative contracting party on its side was the current plaintiff, Dexus Holdings.  It was also clear that, having received the Contract, it became apparent that the relevant contracting party is in fact the related entity, DXFM.

77So, while there may be difficulties with the description “being responsible for the operation and maintenance of the generators”, that to me is a subsidiary issue. The primary relevant description, to use the language of Bridge Shipping, was the contracting party. I then stood the matter down to enable those involved to reflect on what I had said and discuss whether there was scope for resolving the application. The application proceeded about 30 minutes later.

78As I have noted in my reasons for granting the plaintiff’s application, it became clear to me early in the oral submissions by the defendant’s senior counsel that the primary focus of those submission was the asserted lack of evidence adduced on behalf of the plaintiff. In particular, the defendant’s senior counsel referred to a number of specific deficiencies in the evidence, including evidence about:

(a)   instructions given by Dexus Holdings to Landers showing that it was under a mistaken belief;

(b)   whether Dexus was able to locate a copy of the Contract;

(c)   whether Dexus Holdings itself was confused or there had been a change in staff to explain its lack of knowledge;

(d)   Dexus Holdings’ knowledge (or otherwise) of the managed investment scheme established for the ownership of the IBM Tower; and

(e)   more generally, Dexus Holdings’ role (if any) in the mistake.

79This, in turn, seemed to explain the defendant’s reticence in disclosing the substance of its arguments in both the case conference and the first iteration of its submissions. That is, the defendant was hoping to limit or deny the plaintiff the opportunity to file supplementary affidavit material seeking to respond to the alleged evidentiary deficiencies that the defendant seemed to consider were critical to the success of the application. If this was the defendant’s intent (and it is difficult to avoid that conclusion), it was misconceived and is to be deprecated.

80It was misconceived for two reasons, as explained more fully in my findings on the substantive application above. That is:

(a)   because the plaintiff’s material did in fact include the evidence that the defendant asserted was lacking; and

(b) because of my conclusion that r36.01(4) of the Rules does not require proof that the applicant itself was mistaken.

81It is to be deprecated because it had the clear potential to result in increased costs, unnecessary delay and a waste of court resources and time. Further, it appears to have fulfilled that potential.

82Compliance with the CPA’s overarching obligations require that parties cooperate and avoid delay, which, in my judgment, includes taking every reasonable opportunity to engage in a full and frank debate about the issues in dispute and options for compromise. This has long been expected of parties (and particularly their counsel) in relation to alleged deficiencies in pleadings. Alleged deficiencies in evidence on an interlocutory dispute should be no different, particularly since the introduction of the CPA in 2010.

83I limit the observation above to interlocutory hearings, because I accept that deficiencies in evidence at trial are arguably in a different category. A trial is generally the last opportunity a party has to adduce the evidence it needs to prove its case. This is rarely true of an interlocutory dispute. In almost all cases (including the present), a late identification of an evidentiary deficiency can generally be remedied either by an adjournment of the application (usually without engaging the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175) or by refreshing the application on fuller material.

84In this case, if the asserted deficiencies in the evidence resulted in the application being dismissed, there was nothing preventing the plaintiff from re-filing the application supported by affidavits remedying those deficiencies. Thus the defendant’s failure to disclose its arguments until the hearing was likely to secure, at most, an additional costs order in its favour and a delay in the proceeding.

85I refer above to parties taking “every reasonable opportunity” to engage in full and frank debate. A case conference conducted by a division lawyer of the court is a paradigm example of such an opportunity, for two reasons. First, it is one of those relatively rare occasions before trial where those with primary responsibility for a proceeding are brought together in one “room” (virtual or otherwise). Second, it involves the investment of the resources of the court in assisting the parties to reduce costs and avoid unnecessary delays.

86As I have noted, that investment will often include an early assessment of the application by the relevant judicial officer and the provision (via the division lawyer) of preliminary feedback on the merits of the application. It will invariably involve the division lawyer devoting several hours to becoming familiar with both the issues in the proceeding generally, as well as the material filed in relation to the particular application, to ensure they are in the best position to add value to the deliberations of those in attendance at the conference. The division lawyer will also spend time arranging a mutually convenient time for counsel or solicitors (or both) to attend the case conference, conducting the case conference itself and reporting back to the judicial officer, where appropriate.

87Against that background, the court expects that the parties and their advisers will make the most of the opportunity that a case conference by a court division lawyer affords. This includes, in particular, disclosing and debating all substantive arguments they expect to advance at the hearing and the strengths and weaknesses of both their own and their opponent’s positions. For the reasons above, it is difficult to avoid the conclusion that the defendant made a calculated decision not to do so in this case. If so, it is a decision that is likely to have added materially to the cost, and delayed the progress, of the proceeding.

Costs and orders

88I accept that these views above in relation to the defendant’s role in the case conference are based, at least in part, on supposition. Further, apart from my invitation to the parties to reflect on my remarks at the commencement of the hearing and to raise any matters in response, the defendant has not had the opportunity to respond directly to the specific concerns I have raised. Before I make any orders on costs reflecting those concerns, it should be given that opportunity, including by offering an alternative explanation for the defendant’s conduct than that which I have surmised, should it be so advised.

89To that end, I will express a tentative view on the appropriate costs order, and invite both parties to consult with a view to either agreeing to orders based on that view, or agreeing on a timetable for further affidavits and submissions on the question of costs. If the parties are unable to agree, I will also invite them to indicate whether there should be a further hearing on the question of costs, or whether the question can be determined on the papers.

90In forming my tentative view on costs, I have had regard to the usual order for costs on applications of this kind, which the plaintiff concedes in its summons is that the plaintiff must pay the defendant’s costs thrown away by reason of the amendment. In my view, the appropriate balance between that usual order and my putative concerns over the conduct of the defendant discussed above, is best achieved by there being no order as to the costs of and incidental to the application and the granting of leave.

91I will order that the plaintiff has leave to the effect as sought in the summons. I will hear further from the parties on the question of costs and any other orders, including orders timetabling the proceeding to trial.

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Certificate

I certify that these 38 pages are a true copy of the judgment of His Honour Judge Woodward delivered on 11 February 2022.

Dated: 11 February 2022

Claire Findlay

Associate to His Honour Judge Woodward