Galloway v Minister for Health - [2015] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GALLOWAY -v- MINISTER FOR HEALTH [2015] WADC 17

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 18 FEBRUARY 2015

DELIVERED : 4 MARCH 2015

FILE NO/S: CIV 3517 of 2012

BETWEEN: JEAN GALLOWAY
Plaintiff
AND
MINISTER FOR HEALTH
First Defendant
LINDA HEARN
Second Defendant

Catchwords:

Application to add a defendant - Expired limitation period - Whether addition of a defendant can be characterised as the correction of the name of the defendant to one of two causes of action

Legislation:

Rules of the Supreme Court 1971 O 21 r 5

Result:

Additional defendant added to the action

Representation:

Counsel:

Plaintiff:     Ms Holyoak-Roberts
First Defendant            :     Mr Bydder
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Vertannes Georgiou
First Defendant            :     State Solicitor for Western Australia
Second Defendant        :     Not applicable

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

Greenwood v Papademetri [2007] NSWCA 221
Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153

DEPUTY REGISTRAR HEWITT: The plaintiff to these proceedings issued a writ naming, amongst others, the Minister for Health a defendant. The indorsement of claim on that writ was as follows:
The Plaintiff's claim is for damages for personal injuries suffered by the Plaintiff as a result of the negligence attributable to the First Defendant, who is vicariously responsible for the acts and/or omissions of the professional staff at the Northam Hospital and Swan District Hospital and/or the Second Defendant, in his/her/their treatment and management of the Plaintiff's fracture of her left wrist over the period 27 November 2009 to approximately 25 January 2010.
AND THE PLAINTIFF CLAIMS:
(a)Damages;
(b)Interest; and
(c)Costs.
It will be seen that it was the intention of the plaintiff to sue for injuries allegedly attributable to the Minister for Health who is said to be responsible vicariously for the professional staff at the Northam Hospital and the Swan District Hospital. It transpires that the Northam Hospital is not under the management of the Minister for Health but it is in fact under the management of the WA Country Health Service, a body corporate separate from the Minister for Health.
The plaintiff did not serve the writ promptly and a limitation period had expired by the time it came to the hands of the Minister for Health. The Minister for Health wrote advising the solicitors representing the plaintiff, pointing out that it was not responsible for the conduct of the Northam District Hospital, which was in fact controlled by WA Country Health Service. That situation created a problem for the plaintiff and ultimately, after some delay, she brought an application relying on O 21 r 5 of the Rules of the Supreme Court 1971. That rule is couched in the following terms:
5.Amending writ or pleading with leave
(1)Subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5); and
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it think it just to do so.
(3)An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.
(5)An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
The terms of the application are unusual and are as follows:
1.WA Country Health Service be joined as Third Defendant in this action.
2.The Plaintiff have leave to amend the Writ of Summons in terms of the attached Minute of Proposed Amended Writ of Summons.
Subrule 3 of O 21 r 5 allows an amendment to correct the name of a party notwithstanding that the effect of the intended amendment would be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued. Subrule 5 provides an amendment may be allowed under subrule 2 notwithstanding that the effect of the amendment would be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as the cause of action in respect of which relief has already been claimed in the action by the party for leave to make the amendment. The rule provides that an application to correct a name may be made after the expiry of any relevant period of limitation.
It is argued by the defendant that the rule does not encompass the proposition that an additional defendant may be added to the action and the plaintiff pursue a cause of action against that defendant. At first blush that contention appears to be correct and supported by authority. It is possible in some circumstances that the correction of a name may involve the addition of a further name as a defendant. Support for that proposition is found in the case of Greenwood v Papademetri [2007] NSWCA 221. It is argued by the defendant that the position in New South Wales is sufficiently different from that in Western Australia to distinguish the case in the present context and with that proposition I agree. I do however think that I can properly adopt the logic which is contained in the dicta of the case and take the view that the correction of a name may in fact involve the addition of a further name to appear in the role of defendant. Reliance is placed by the defendant on the case Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153. That case is authority for the proposition that the rule does not permit a plaintiff who did not make any mistake in naming the defendant as a party to the action but sought to add an additional defendant may not do so under the ambit of the rule within that court, which is effectively the same as that prevailing in this court.
A number of cases have been cited and in my view, the thrust of those cases supports the defendant's proposition that the rule does not permit the addition of a further defendant to an action under the guise of an amendment under the rule.
I am able to discern a difference between the cases which have been quoted to me and the circumstances which prevail in the present case. It is clear from the indorsement which I have previously quoted that the intention of the plaintiff was to sue, as vicariously liable, the party responsible for the management respectively of the Swan District Hospital and the Northam District Hospital. That much is apparent from the indorsement to the writ. On my analysis, each claim for negligence would be capable of sustaining a separate writ and to proceed separately. The alleged torts are in fact different, even though the outcome obviously has common features which may be attributable to the combination of the torts of each of the managing entities. Were the plaintiff to have proceeded by way of separate writs, I have no doubt that the provisions of O 21 r 5 would be applicable and there would be no difficulty in the plaintiff amending the name of the entity alleged to be responsible for the management of the Northam Hospital from the Minister of Health to WA Country Health Service. There has no been contention before me that the mistake was not genuine, nor I think is there any reasonable argument which would sustain that in some way the inadequacies of the writ mislead any party to the action as to the identity of the entity sought to be sued. It is perfectly clear from the indorsement that it was intended to sue the party managing the Northam Hospital.
Should the fact that the plaintiff for convenience chose to issue one writ rather than two operate to deprive her of the opportunity to amend the writ to pursue her claim against the entity managing the Northam District Hospital. I do not think it should. The order which is sought is in fact the naming of an additional defendant. It is the curious situation in which the plaintiff finds herself which requires such an order to correct the situation which has been created but is not in truth the addition of an additional party, it is the substitution in respect of the cause of action pursued against the manager of the Northam District Hospital from Minister of Health to WA Country Health Service. Were such an amendment to be allowed, clearly there would need to be some amendment to the indorsement such that a reader would be able to discern what negligence is intended to be attributed to the Minister for Health and that intended to be attributed to the WA Country Health Service.
On the materials which are before me it seems clear that this is a genuine mistake and that the objection to the amendment proposed arises from form rather than substance.
Accordingly I intend to grant the chamber summons and permit the plaintiff to add WA Health Service as a third defendant.