Galloway v Minister for Health [No 2]
[2015] WADC 119
•9 OCTOBER 2015
GALLOWAY -v- MINISTER FOR HEALTH [No 2] [2015] WADC 119
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 119 | |
| Case No: | CIV:3517/2012 | 5 JUNE 2015 | |
| Coram: | BRADDOCK DCJ | 9/10/15 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JEAN GALLOWAY MINISTER FOR HEALTH LINDA HEARN WA COUNTRY HEALTH SERVICE |
Catchwords: | Appeal from Registrar's decision Joinder of parties Addition or substitution Rules of the Supreme Court O 21 r 5 Amendment Mistake Mistaken identity |
Legislation: | Limitation Act 2005 (WA) s 14 Rules of the Supreme Court 1971 O 18, O 21 Hospital and Health Services Act 1927 |
Case References: | Alinta 2000 Ltd v Petkov [2012] WASCA 258 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 Ryan v Coffs Harbour City Council (2014) NSWLEC 159 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MINISTER FOR HEALTH
First Defendant
LINDA HEARN
Second Defendant
WA COUNTRY HEALTH SERVICE
Third defendant
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEPUTY REGISTRAR HEWITT
File No : CIV 3517 of 2012
Catchwords:
Appeal from Registrar's decision - Joinder of parties - Addition or substitution - Rules of the Supreme Court O 21 r 5 - Amendment - Mistake - Mistaken identity
Legislation:
Limitation Act 2005 (WA) s 14
Rules of the Supreme Court 1971 O 18, O 21
Hospital and Health Services Act 1927
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff : Ms Holyoake-Roberts
First Defendant : Mr Bydder
Second Defendant : No appearance
Third defendant : Mr Bydder
Solicitors:
Plaintiff : Vertannes Georgiou
First Defendant : State Solicitor for Western Australia
Second Defendant : Not applicable
Third defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Alinta 2000 Ltd v Petkov [2012] WASCA 258
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153
Ryan v Coffs Harbour City Council (2014) NSWLEC 159
- BRADDOCK DCJ:
Introduction
1 This appeal concerns the plaintiff, Mrs Jean Galloway (Mrs Galloway), her broken wrist, and its treatment at the Swan District Hospital, by her general practitioner, Linda Hearn, (Dr Hearn) and the hospital at Northam.
2 On 27 November 2009 Mrs Galloway fell at home and fractured her left wrist. She attended the Goomalling District Hospital from where she was referred to the Swan District Hospital. When she attended at the Swan District Hospital, her wrist was x-rayed. She was told that no surgery was required, and the hospital sent her home in a temporary plaster cast. She was told that the orthopaedic department would contact her on the following Monday with an appointment, which she needed to have within the next week.
3 There was no contact from the orthopaedic department. She pursued the matter. On contacting Swan District Hospital she was told that her file had been referred to the Royal Perth Hospital and was in transit. Subsequently, she was offered an appointment with the orthopaedic department in mid-December 2009.
4 However, Mrs Galloway had an appointment with her GP prior to that time, which she attended. Dr Hearn took an x-ray of her wrist and advised her that no orthopaedic consultation would be necessary. Dr Hearn put her wrist in a permanent plaster cast at the Northam Hospital.
5 On 18 January 2010 at the Northam Hospital, the plaster cast was removed and her wrist was bandaged tightly. This soft bandage caused her great pain. She was told that this was normal. Her symptoms got worse and she was referred for an orthopaedic review at which she was diagnosed with reflex sympathetic dystrophy, which required surgery.
6 The appeal also concerns the application of Rules of the Supreme Court1971 (RSC), O 21 specifically.
The proceedings
7 Mrs Galloway's solicitors issued a writ on 14 November 2012, claiming damages for personal injuries suffered by Mrs Galloway by the reason of the negligence of the Minister for Health (the Minster) as the person vicariously responsible for the acts or admissions of the professional staff at the Northern Hospital and the Swan District Hospital and/or against Dr Hearn for her treatment and management of Mrs Galloway's fracture.
8 In Western Australia, the management of hospital and health services is governed by the Hospital and Health Services Act 1927. The regime has been, historically, that hospitals are managed by a representative board, in default of which the Minister for Health was deemed to be such a board. However, in 2006, the WA Country Health Service was established as the entity responsible for regional hospitals. The WA Country Hospital Service (WACHS) is a separate legal entity from the Minister for Health.
9 It is not in dispute in these proceedings that the proper defendant in relation to any action against the Swan District Hospital is the Minister. Further, it is not disputed that the proper defendant in respect of any action against the Northam Hospital is the WACHS.
10 Mrs Galloway's writ was served on the State Solicitor, for the Minister, on 14 October 2013. Correspondence followed. The State Solicitor pointed out to Mrs Galloway's solicitors that the Minister was not responsible for the Northam Hospital.
11 Mrs Galloway's proceedings were commenced within the limitation period but served after the expiry of the limitation period. The State Solicitor entered an appearance for the Minister, in his capacity as the Board of Management of the Swan District Hospital. On 22 October 2013, the State Solicitor advised Mrs Galloway's solicitors that the WACHS was the board that had the management and control of the Northam Hospital. The limitation period had expired and no consent to an amendment so as to include both the Minister and the WACHS as defendants was forthcoming.
12 Mrs Galloway brought an application seeking to add the WACHS as a third defendant and amend the writ accordingly, pursuant to O 21 r 5 of the RSC. The Minister opposed the application. On 4 March 2015, Deputy Registrar Hewitt permitted the amendment to add the WACHS, as third defendant. It is from this decision that both the Minister and the WACHS now appeal to this court.
The appeal
13 The appeal was lodged on 16 March 2015 seeking to set aside orders made by Deputy Registrar Hewitt on 4 March 2015 and 12 March 2015. In lieu of these orders, the Minister and WACHS seek:
(1) To dismiss the application for the joinder of the WACHS.
(2) To set aside the amended writ of summons and reinstate the original writ (with provision for service and filing of a statement of claim).
(3) The plaintiff pay the first and third defendants' costs of the appeal and costs thrown away.
14 An appeal to this court from the decision of a registrar is a hearing de novo: District Court Rules 2005 (DCR) r 15. No specific error by the registrar needs to be demonstrated.
15 The application by Mrs Galloway to join the WACHS in the action was brought under RSC O 21 r 5(3), which reads:
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.
16 Order 21 r 5(2) provides that such an amendment may be made after the relevant period of limitation has expired if it is thought to be just to do so.
The argument of the Minister and the WACHS
17 It was submitted on behalf of the WACHS and the Minister that the application was truly one seeking the addition of a party, rather than the substitution of a party, and that such an amendment must occur under RSC O 18 r 6 rather than under RSC O 21 r 5(3).
18 The basis of the argument was that it was not correcting a name under O 21 r 5, but effectively joining a new party.
19 The significance of which power is revoked to make the amendment requested concerns the consequential effect of the joinder. The addition of a party under O 18 r 6 takes effect from the date when the party is joined, not the date of issue of the original writ. Such an amendment to join WACHS would be futile, because the limitation period had expired. Any joinder or substitution of an additional party under O 18 r 6 would be subject to the limitation defence.
20 Under O 21 r 5, leave may be granted after the expiry of the relevant period of limitation and any amendment relates back to the date of the issue of the writ. The argument on behalf of the Minister and WACHS was that there cannot be a substitution of one party for another, where all the original parties remain. Further, it could not be said that the name of any party had been corrected, in that the original parties are described in the same way as they had always been described in the proceedings. Thus, it was argued that the amendment did not fall under O 21 r 5(3), as it added a separate and fresh party to the proceedings. Counsel for the Minister and the WACHS relied upon the authority of Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153. It was further argued that Mrs Galloway could not 'split' the first defendant because she had only named the Minister once as defendant.
Mrs Galloway's argument
21 Mrs Galloway relied upon O 21 r 5(3). It was submitted that the rule might apply to a variety of changes from the correction of the spelling of a name, to the omission of a middle name of a party, through to the legal status of an entity. The plaintiff asserted that the rule was a remedial one, citing Alinta 2000 Ltd v Petkov [2012] WASCA 258 [38]. It was submitted that Mrs Galloway had sued the person responsible for the Northam Hospital, that the mistake was the naming the Minister in that role and that a reasonable person would not have been misled by that mistake. It was said in effect that this was a mistake as to the name of the entity as in Alinta [25].
The issues in the appeal
22 The question raised in this appeal is whether the application of Mrs Galloway is for a correction of a misnomer under O 21 r 5(3) or the addition of a new party, which would be permissible under O 18 r 6, but not viable due to the expiry of the period of limitation.
23 Mrs Galloway sued the Minister, for the hospitals and Dr Hearn, her GP, for personal injuries in negligence. This included negligence alleged against the staff at Northam Hospital and the staff at Swan District Hospital and the personal negligence of Dr Hearn, all in their various treatments of her.
24 On the face of it, the proposed amendment amounts to both the addition of a further party by adding the name of the WACHS, as the person responsible for the Northam Hospital, and the substitution of the WACHS for the Minister in relation to its responsibilities for the Northam Hospital. The issue is therefore which rule to apply.
Discussion
25 The reality of the action is that negligence is alleged against the staff of both the respective hospitals (and the GP). The nature of the liability is vicarious, being the liability of the 'board of management' of the hospitals as they used to be. The original endorsement of the writ made that much plain. It read:
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 the Swan District Hospital and/or the second defendant in her treatment and management of the plaintiff's fracture of her left wrist over the period 27 November 2009 to approximately 25 January 2010.
26 There can be no doubt that Mrs Galloway intended to sue the legal person responsible for the staff at the Northam Hospital and the legal person responsible for the staff at the Swan District Hospital. The mistake was assuming the Minister was both.
27 The Minister was named in two capacities, rightly in relation to the Swan District Hospital, and wrongly in relation to the Northam Hospital. In effect, the Minister in the original writ was ascribed 'two hats', a matter which was erroneously not appreciated at the time by those advising Mrs Galloway.
28 In my assessment, there can be no doubt what was intended on behalf of Mrs Galloway. Nobody would have been misled into thinking than anybody other than the person(s) responsible for negligence of the hospital staff were being sued.
29 The minute of amended endorsement of claim makes it clear that there are three classes of persons involved.
30 Neither counsel has been able to direct the court to any authority on 'all fours' with this factual situation.
31 In Hayward the plaintiff sued the defendant as the owner of a helicopter which suffered engine failure and was thereby damaged. Hayward had interests in two companies. He sought to join one of them as joint plaintiff. This application failed under Queensland's equivalent provision (O 32 r 1), because it was held to be the addition of a party. The relevant capacity or descriptor was 'owner of the helicopter'. It is not clear in the report why Hayward sought to add, not substitute, the company. The majority (Pincus JA and Ambrose J) said at (158):
Although counsel for the appellant argued otherwise, it seems to us clear that O. 32 r. 1(3) cannot justify the making of an order of the kind sought here. The appellant's submission would, if acceded to produce an order, not that the name of the original plaintiff, Mr Hayward, be corrected, but that his name be left as it is and that the name of an additional plaintiff, Scartwater Pty Ltd, be added. It is true that the notion of correcting the name of a party gains breadth from the following language of the paragraph: the name of a party may be corrected even where the correction is arguably, in truth, the substitution of a new party. But that language only makes it clearer that adding the name of a company as an additional plaintiff would not 'correct' the name of the originally joined plaintiff, Mr Hayward.
… the Victorian provision should be given 'the widest interpretation which its language will permit' and that it should be construed so as to cover 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'. … It is our opinion that, whatever else O 32 r 1(3) does, it does not authorise the joinder of a party additional to that whose name is sought to be corrected.
32 In Ryan v Coffs Harbour City Council (2014) NSWLEC 159, Sheahan J summarised the authorities, quoting Dawson J in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 (238 – 239):
[33] Dawson J said (at 238 – 239):
… What is important is the distinction between the correction of a misnomer or misdescription, which was something dealt with by [the relevant rule], and the addition or substitution of parties for the parties originally joined, which was something dealt with by [the Rules] … The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed. In such a case, at least as a matter of theory, no question of defeating a statute of limitations arises.
- In Rainbow Spray Irrigation Pty Ltd v Hoette, Walsh J gave leave to amend the name of the plaintiff from 'Rainbow Spray Irrigation Pty Limited' to 'Rainbow Spray Sales Pty Limited', exercising the inherent power of the Court to do so. He remarked [22] that that power of amendment 'may not be used so as to change the constitution of the action, to make it an action between different parties from those that were the parties to it before the amendment'. He continued:
'If this case ought to be regarded truly as the substituting for one plaintiff of another plaintiff, then I think on the authorities, I would be bound to refuse it, but it is not clear that it ought to be so regarded. …
I think I am entitled, in the circumstances of this case, to treat this as a case of correcting an error in naming the true plaintiff, and not as being an attempt to substitute one party for a different party. To put it another way, I think it can be said that one ought to consider the action, from the time of writ onwards, to have been and to have been intended to be an action by Rainbow Spray Sales Pty Ltd, but because of someone’s error the wrong name was typed on the documents.
[35] His Honour reviewed a long line of cases, citing Bridge (at [27]) as 'the definitive Australian case', in which the High Court held that the ambit of the relevant substitution rules 'covered not only misnomer, clerical error and misdescription but also [cases] where the plaintiff, intending to sue a person identified by a particular description [in Bridge, the intended defendant was the owner] was mistaken as to the name of the person who answered that description'.
[36] His Honour pointed out that Bridge had been applied on many occasions, always against the background of the principle that a court rule can never operate contrary to the provisions of a statute, but often to correct 'misnomers'.
[37] Young J was also the trial Judge in Sibroll Pty Ltd (In Liq) v Mitch Properties Pty Ltd (Sibroll) [2007] NSWSC 579 in which an interlocutory application was made under ss 64 and 65 for leave to 'correct any mistake in the name of the plaintiff' by adding 'the personal name of the court-appointed liquidator' of the named plaintiff 'Sibroll Pty Ltd (in liq) ACN 003 603 772' as a second plaintiff. It was common ground that the proceedings were brought in time but it was 'too late to sue in the name of the correct plaintiff', the liquidator.
[38] His Honour reiterated the ratio of his decision in Short, and noted several subsequent decisions of the High Court (not relevant to the present matter), as well as Bridge. He opined that s 65(2)(b) meant that 'an order may be made to correct a mistake in the name of a party in circumstances which extend beyond a mere misnomer to cases where there has been a culpable mistake, including a mistake in giving the wrong name of the party intended to be sued' ([38]), but did not 'authorise an additional party to be added, as opposed to substituting one alleged party for another' ([39]), which meant ([40]) 'the inevitable dismissal of the interlocutory application because the only order sought is that the liquidator be added as a plaintiff', as the solicitor ([48]) 'consciously intended to commence the proceedings in the name of Sibroll Pty Ltd (in liq) as the sole plaintiff based on his own particular reading … of the Corporations Act'.
33 Taking an overview of cases referred to in argument, and in the above extract the law appears to allow, pursuant to provisions such as O 21, the correction of a misnomer where there is a proper description of the party intended (without any error of law in the capacity of the party) but cannot extend to add a party in a different capacity. So it permits the correction of the proper person to bring a planning appeal (Ryan), the proper defendant(s) to an action in nuisance caused by a land owner (Greenwood), or to correct the name of a corporate entity (Alinta), but not to substitute a liquidator for the company in liquidation (Sibroll), a charterer for a ship owner (Bridge), to add a party in some other unclear capacity where the descriptor is ownership of a helicopter (Hayward).
34 In so far as the amendment is sought in respect of the second capacity of the Minister, it is a substitution to correct the name of a party who had been identified by a particular description. There would have been no doubt about the nature of the application under O 21 r 5(3) had the Minister and another separate entity been named in the first instance, eg, a private company erroneously named as being responsible for the Northam Hospital. The amendment would have been good.
35 The error made on behalf of Mrs Galloway led to the original action being brought against two defendants, where there were three allegedly involved, on the facts. Should Mrs Galloway not be permitted to amend pursuant to O 21 r 5 because of that particular error?
Conclusion
36 In my view, there is no doubt that one of the characteristics by which the then first defendant was identified was that of being the person vicariously responsible for staff at Northern Hospital. The mistake was made as to the entity who bore those characteristics. It is a question of fact who is in charge of a hospital, whether it be a board, a minister or a health service. The mistake was naming the same entity as responsible for the actions of staff at both hospitals. The endorsement of the writ reflects this clearly, despite the fact the Minister was not named twice in the writ. To do so would have looked rather foolish even if it were technically correct.
37 These facts are unusual, although on analysis not particularly complicated. They disclose a mistake in the naming of a party, in part. It is capable of remedy under O 21 r 5(3), if the court is satisfied that the mistake was genuine. There has been no argument that there was any doubt as to the identity of the party intending to be sued. The court may grant leave where the limitation period has expired, if it thinks it is just to do so, under O 21 r 5(2).
38 In my opinion, O 21 r 5(3) is apposite and applicable. The mistake was genuine. It would be unjust in the circumstances not to grant leave to Mrs Galloway. That would be to allow the triumph of form over substance and to subvert the purpose of the rules.
39 As the Chief Justice said in Alinta at [6]:
The primary obligation of the courts is to administer justice. Refusal of the amendment would be the antithesis of justice. It would represent the triumph of technicality and form over substance which would prevent Mr and Ms Petkov pursuing a plainly arguable case. Happily, O 21 r 5 of the Rules of the Supreme Court (WA) provides the court with ample power to do justice in this case by amending the name of the defendant to correspond with the entity which Mr and Ms Petkov always intended to sue.
- I respectfully agree.
40 The appeal is dismissed.
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