Greenwood v Papademetri - [2007] NSWCA 221

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Greenwood v Papademetri [2007] NSWCA 221

HEARING DATE(S): 27 July 2007

JUDGMENT DATE:
27 August 2007

JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Young CJ in Eq at 94

DECISION: (1) Leave to appeal granted.; (2) Direct Claimant to file, within 14 days, a notice of appeal in the form of the draft already supplied to the Court.; (3) Orders below set aside. In lieu thereof, grant leave to the Opponent to file a Further Amended Statement of Claim, in the same form as the Amended Statement of Claim, save only that it does not contain an allegation that Mr Jamiel Antoun was the owner of the premises.; (4) Claimant to pay costs of the Opponent of the application.

CATCHWORDS: PRACTICE AND PROCEDURE – parties – joinder of party to proceedings – adding a party after expiration of limitation period – effect of joinder of party on operation of limitation periods – substitution of party – correcting mistake in name of party – whether multiple parties may replace single party – date as at which amendment of parties effective – type of mistake able to be corrected – existence of discretion even if relevant type of mistake found to exist – Civil Procedure Act 2005, s 65(2)(b) - LIMITATION OF ACTIONS – general – personal injury actions – Limitation Act 1969, s18A, Div 6 – “survivor action” – circumstances in which extension of time to sue in personal injury actions can be granted – interaction of Limitation Act and section 65(2)(b) Civil Procedure Act - TORTS – nuisance – public nuisance – elements of offence – who may be sued for public nuisance – where builder carried out work on private land that created public nuisance – liability of builder – liability of occupier of land – liability of owner of land - WORDS AND PHRASES – “correct a mistake in the name of a party to the proceedings”

LEGISLATION CITED: Civil Liability (Personal Responsibility) Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Civil Procedure Act 2005
Civil Procedure Rules 1998 (UK)
Corporations Act 2001
District Court Act 1973
District Court Rules 1973
Interpretation Act 1987
Land and Environment Court Rules 1980
Law Reform (Miscellaneous Provisions) Act 1944
Limitation Act 1969
Real Property Act 1900
Rules of the Supreme Court (Qld)
Supreme Court Rules (Vic)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CASES CITED: Adelson v Associated Newspapers Limited [2007] EWCA Civ 701
The Al Tawwab [1991] 1 Lloyd's Rep 201
Archbishop of Perth v “AA” to “JC” inclusive (1995) 18 ACSR 333
Bebonis v Angelos (2002) 56 NSWLR 127
Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231
Brodie v Singleton Shire Council (2001) 206 CLR 512
Cartwright v McLaine & Long Proprietary Limited (1979) 143 CLR 549
Deveigne v Askar [2007] NSWCA 45
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Greater Lithgow City Council v Wolfenden [2007] NSWCA 180
Greentree v G D Searle and Company (Supreme Court of NSW, 31 July 1992, unreported)
Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153
Holling v Yorkshire Traction Co Ltd [1948] 2 All ER 662
Maamary v Pepsico Australia Pty Ltd [2001] NSWCA 375
McGee v Yeomans [1977] 1 NSWLR 273
McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579
Sullivan v Van der Broek [1999] NSWSC 1177
Volman t/as Volman Engineering v Lobb [2005] NSWCA 348

PARTIES: Lyne Greenwood, Executrix of the Estate of the Late Linda Antoun - Claimant
Mary Papademetri - Opponent

FILE NUMBER(S): CA 40077/07

COUNSEL: R Gambi - Claimant
B O'Sullivan - Opponent

SOLICITORS: Barwick Boitano Lawyers, North Parramatta - Claimant
Bolzan & Demitri Solicitors, Leichhardt - Opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1283/06

LOWER COURT JUDICIAL OFFICER: Judicial Registrar McDonald

LOWER COURT DATE OF DECISION: 2 February 2007

HEADNOTE

1 In April 2003, the Opponent sustained injuries after she fell on a public footpath that was adjacent to building works that were being conducted on residential land in Marrickville, in inner western Sydney. She asserts that she slipped on mud that had escaped from the building site and accumulated on the footpath.

2 The Opponent, believing that Mr Jamiel Antoun was the owner and occupier of the residential land, commenced proceedings in the District Court against Mr Jamiel Antoun in negligence and public nuisance. However, she later discovered that Ms Linda Antoun was the sole registered proprietor of the residential land from which the mud allegedly escaped and sought to add the now-deceased Ms Antoun (through the executrix of her estate) as a party to the proceedings, pursuant to section 65(2)(b) Civil Procedure Act2005. The application to add Ms Antoun as a defendant was made in February 2007, which was after the expiration of the relevant limitation period for commencing proceedings against Ms Antoun.

3 The Judicial Registrar granted the Opponent’s application to add the Claimant as a defendant to the proceedings under section 65(2)(b) Civil Procedure Act. The Claimant sought leave to appeal against the Judicial Registrar’s orders. The question before the Court of Appeal (in a concurrent hearing of the application for leave to appeal, and of the appeal itself) concerned the construction of section 65(2)(b).

4 Section 65(2)(b) Civil Procedure Act provides as follows:

“At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as:

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party…”.

5 The Court of Appeal had to determine two questions:

to correct a mistake in the name of a party to the proceedings

2. Is the order that the Judicial Registrar made – whereby instead of Mr Antoun being the only defendant, both he and the Claimant are made the defendants – a type of amendment that section 65(2)(b) permits?

6 HELD (per Campbell JA; Tobias JA agreeing):

Civil Procedure Act 2005

Civil Procedure Act

b. Section 65(2)(b) applies only to a mistake that is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party.

c. The power conferred by section 65(2)(b) is a discretionary power that must be exercised in accordance with section 64(2).

to correct a mistake in the name of a party to the proceedings

Bridge Shipping Pty Limited v Grand Shipping SA

Greentree v G D Searle and Company

Archbishop of Perth v “AA” to “JC” inclusive

Maamary v Pepsico Australia Pty Ltd

Adelson v Associated Newspapers Limited

Sibroll Pty Ltd v Mitch Properties Pty Ltd

b. The Opponent intended to sue the person who answered the description of owner, occupier and builder and mistakenly believed that the person who answered the description of owner, occupier and builder was Mr Antoun.

Civil Procedure Act

a. The words “whether or not the effect of the amendment is to substitute a new party” do not limit the width of the power conferred by section 65(2)(b).

Interpretation Act 1987

Civil Procedure Act

Greentree v G D Searle and Company

McInnes v Wingecarribee Shire Council

Hayward v Darling Downs Aircraft Services Pty Ltd

Civil Procedure Act

Young CJ in Eq

to correct a mistake in the name of a party to the proceedings

a. Section 65 Civil Procedure Act provides only a limited escape from the defence of limitation where it is appropriate “to correct a mistake in the name of a party.”

b. Adding a new party and a new cause of action additional to the original claim is beyond the scope of section 65 Civil Procedure Act .

c. The Opponent here was seeking to add a new cause of action against a new party, rather than substitute one party for another because of a mistake.

d. The Opponent made no mistake in the name of the party she wished to sue.

**********

40077/07

TOBIAS JA
CAMPBELL JA
YOUNG CJ IN EQ

LYNE GREENWOOD, EXECUTRIX OF THE ESTATE OF THE LATE LINDA ANTOUN v MARY PAPADEMETRI

Judgment

1 TOBIAS JA: I agree with Campbell JA.

2 CAMPBELL JA: This is an application for leave to appeal and, if leave is granted, the hearing of the appeal itself. It raises questions concerning the power of a court to add a new party to proceedings after expiry of a limitation period.

3 The Claimant is the executrix of the estate of the late Linda Antoun. Ms Antoun was at all relevant times the sole registered proprietor of residential land located at 9 Centennial Street, Marrickville.

4 In April 2003 building work was under way at the Centennial Street property. On 30 April 2003 the Opponent, Ms Mary Papademetri, claims to have slipped and fallen on the footpath outside the property, and injured herself. She asserts that she slipped because mud had escaped from the building site and accumulated on the footpath.

5 The Opponent made a complaint about the muddy state of the footpath to the local council, Marrickville Council, and asked it to investigate. The Council replied, on 12 August 2003, stating that it had investigated the matter “… and met with Jamiel Antoun, Owner/Builder of No. 9 Centennial Street, Marrickville …”.

6 On 24 May 2005 the Opponent’s solicitors sent a letter of demand addressed to:

7 The letter was headed “Mary Papademetri – occupier’s liability”. It stated the Opponent’s allegation “that you as the owner builder of the said property” were negligent in allowing the escape of mud, and thereby caused the injuries to the Opponent. The letter suggested that Mr Antoun pass the letter on to his insurers. There was no response to that letter.

8 On 24 March 2006 the Opponent filed a Statement of Claim in the District Court, seeking damages in connection with her injuries. The only defendant it named was Jamiel Antoun. The Statement of Claim alleged that Mr Jamiel Antoun was the owner and occupier of the land. It raised two causes of action. The first was in negligence, alleging that Mr Antoun’s conduct of the building work had negligently allowed the mud to escape onto the public footpath adjacent to his land. The second cause of action was based in the tort of nuisance. One of the allegations was that he “caused or permitted wet slippery mud to escape from his land and to accumulate and remain on to the adjacent public footpath.” Another allegation was:

“The defendant created or permitted a nuisance upon the public footpath adjacent to his premises in that he:

(i) failed to keep the public footpath adjacent to his premises free of wet slippery mud and/or other slippery substances;

(ii) caused or permitted wet slippery mud to accumulate on the public footpath adjacent to his premises when he knew, or ought to have known, that it was dangerous and that such danger was not an obvious risk to such persons due to inadequate street lighting outside his premises.”

9 The Opponent’s solicitors posted the Statement of Claim and related court documents to Mr Antoun on 27 March 2006, with the suggestion that they be forwarded to his public liability insurer. That letter produced no response either.

10 The first pre-trial conference of the Opponent’s action against Mr Antoun was fixed for 6 June 2006. No representative of Mr Antoun appeared at that conference. On the application of the solicitor for the Opponent, Judicial Registrar McDonald extended the time for personal service to 30 June 2006, fixed a pre-trial conference for 2 August 2006, and directed that Mr Antoun be notified of both of those orders.

11 On 8 June 2006, the solicitors for the Opponent instructed a process server to serve Mr Antoun with the documents. The process server made several calls at the Centennial Street address, but could not find anyone there until 22 June 2006. On 22 June 2006 a man who answered the door at the premises told the process server “He’s my brother … he’s away, … try next Monday, he should be back by then …”.

12 The process server returned on the evening of Tuesday, 27 June 2006. A different man answered the door, and said of Mr Antoun “He doesn’t live here … I don’t know where that guy is now … look my mother is dying … I don’t care what you were told … Goodbye …”.

13 After receiving a report of those events from the process server, the solicitor for the Opponent caused a Real Property Act 1900 search to be conducted. The results of that search came to hand on 30 June 2006, and showed that the sole registered owner of the Centennial Street property was Ms Antoun.

14 The solicitors for the Opponent then instructed counsel to draft an Amended Statement of Claim, adding Ms Antoun as a second defendant. The solicitors received the re-drafted Statement of Claim on 26 July 2006. The Amended Statement of Claim pleaded actions of negligence and nuisance in the alternative against Mr Antoun and Ms Antoun.

15 On 1 August 2006 the Opponent filed a Notice of Motion in the District Court proceedings, seeking orders in substance:

“1. That Linda Antoun be added as a defendant in the said action pursuant to Section 65(2)(b) of the Civil Procedure Act.

2. That personal service upon Jamiel Antoun and Linda Antoun be dispensed with.

3. That service be effected by delivering the Statement of Claim, first amended Statement of Claim and Notice of Motion to 9 Centennial Street, Marrickville.

…”

16 Further attempts at service of the Statement of Claim and this Notice of Motion and accompanying affidavits were made on 13 and 16 August 2006, without success. A neighbour told a process server that Jamiel Antoun still lived at the premises.

17 On 18 August 2006 Judicial Registrar McDonald made ex parte orders of the type claimed in the Notice of Motion. In fact, unbeknown to the Opponent and her solicitor, Ms Antoun had died on 28 June 2006.

18 On 25 September 2006 Barwick Boitano, lawyers, wrote to the solicitor for the Opponent saying that they had been instructed to represent the estate of Linda Antoun, and Jamiel Antoun, and that they had been provided with a copy of the first Amended Statement of Claim. They stated that Ms Antoun had died on 28 June 2006 and that probate of her estate had not at that stage been obtained. They asserted that the claim against Ms Antoun was statute-barred by the time of the Judicial Registrar’s order on 18 August 2006.

19 On 2 February 2007 the two Notices of Motion that are the subject of this appeal came before Judicial Registrar McDonald. By then probate of Ms Antoun’s will had been granted to the Claimant. The first Notice of Motion was brought by the Opponent. The substantial order it sought was:

“1. That Lyne Greenwood be added as a second defendant in the proceedings as executrix of the estate of the late Linda Antoun in lieu of the second defendant Linda Antoun pursuant to s 65 of the Civil Procedure Act.”

20 The second Notice of Motion said (incorrectly, though no one takes any point about this) that it was filed for Linda Antoun. The substantial orders that it sought were:

“1. The Court appoint or join Lyne Greenwood as a party to the proceedings for the purposes of determining this Motion pursuant to r6.24 of the Uniform Civil Procedure Rules.

Civil Procedure Act

Limitation Act

21 The Judicial Registrar dealt first with the second Notice of Motion. She made the first order sought in that Notice of Motion, “before further dealing with the matter so that [Ms Greenwood] has the standing to bring this motion.”

22 The Judicial Registrar decided, in substance, that orders 2 and 3 in the second Notice of Motion should be declined. In the course of so doing she held that the relevant mistake was that the plaintiff had intended to sue the owner but had made a mistake as to who the owner was.

23 The Judicial Registrar then went on to make the order claimed in the first Notice of Motion.

24 The Civil Procedure Act 2005 contains the following provisions:

“ 56 Overriding Purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

…

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, …

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

…

64 Amendment of documents generally

(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

65 Amendment of originating process after expiry of limitation period

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as:

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

Limitation Act 1969

originating process

25 The Uniform Civil Procedure Rules 2005 provide:

“6.24 Court may join party if joinder proper or necessary

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

…

6.28 Date of commencement of proceedings in relation to parties joined

If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order.”

26 Rule 6.28 UCP Rules has the effect that if a party is joined under rule 6.24, the joinder of that person cannot be treated as having been effective on any date earlier than the date the order for joinder is made. Thus, if it is clear that the party sought to be joined under Rule 6.24 would have an effective limitation defence, the futility of joining that party can provide a reason why the order for joinder should not be made at all. If a trial is needed to decide whether the action was statute-barred at the date of joinder, an order under rule 6.28 that the party be joined does not prejudice the availability of any valid limitation defence that the party joined might have.

27 If, however, a party can be joined under section 65 Civil Procedure Act 2005, section 65(3) has the effect, unless the court otherwise orders, that the amendment is taken to have had effect from the date on which the proceedings were commenced. Thus, if a person who was not previously a party can be made a party pursuant to section 65, and the proceedings themselves were commenced before the expiry of any limitation period applicable to that person, any limitation defence that that person would have had, if new proceedings had been commenced against him or her on the date the order was made, becomes unavailable. In this way, section 65 has the practical effect of an amendment to the Limitation Act 1969. Section 65(5) makes explicit that section 65 is intended to have such an effect.

28 It is well established that section 64 provides a discretionary basis upon which amendments can be made to a statement of claim in cases that are not covered by section 65: McGee v Yeomans [1977] 1 NSWLR 273 at 280; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 171, 180-1 and 183; Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 719; Bebonis v Angelos (2002) 56 NSWLR 127 at 138-9; Greater Lithgow City Council v Wolfenden [2007] NSWCA 180. The cases just cited accept that, if such an amendment is made under section 64, that amendment relates back to the date of instituting the proceedings.

29 It is clear from the terms of section 65(4) itself that section 65 does not result in any limitation by implication of the general power conferred by section 64: Greater Lithgow City Council v Wolfenden at [12]. But that does not necessarily mean that the power of amendment under section 64 is totally unrestricted. It is still possible that a limitation on the power under section 64 could arise by implication from a provision other than section 65. In Fernance v Nominal Defendant, Gleeson CJ (with whom Clarke JA agreed) recognized that the power of amendment contained in the former Part 20 rule 1 Supreme Court Rules1970 (the analogue of the present section 64) provided a basis for amendment to a statement of claim that was independent of Part 20 rule 4 (the analogue of the present section 65). Even so, Gleeson CJ held that Part 20 rule 1 did not stretch sufficiently wide to permit an amendment to the parties to proceedings on any basis other than that provided by the specific rule that dealt with the time as at which an amendment to the parties to proceedings would take effect (the analogue, in broad terms, of the present rule 6.28). Were it otherwise, there would have been repugnancy between the two different rules.

30 I shall assume, without deciding, that the same result as was arrived at in Fernance would arise under the Civil Procedure Act and the UCP Rules – ie, that the elevation of the former Part 20 rule 1 and Part 20 rule 4 into the Act, and some differences of wording that exist between the provisions considered in Fernance and those that are now applicable, are of no substantial effect.

31 Thus, like the Judicial Registrar, I shall focus on whether the amendment that is sought is within section 65(2)(b), and give no independent consideration to section 64.

Civil Procedure Act

32 I shall state at the outset how, in my opinion, section 65(2)(b) Civil Procedure Act should be read.

33 The power that is conferred by section 65(2)(b) is purposive in its nature. It authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings. The words “whether or not the effect of the amendment is to substitute a new party” do not limit the width of that power. Rather, they make clear that the power can apply in some circumstances where the effect of the amendment is to substitute a new party, and can also apply in some circumstances where the effect of the amendment is not to substitute a new party. The precise order that is appropriate under section 65(2)(b) will depend upon what, in the circumstances of the particular case, is the particular mistake that there has been in the name of a party to the proceedings, and what needs to be done to correct that mistake.

34 Section 65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to the proceedings. It applies only to a mistake that, in the court’s opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. In some cases where an amendment is sought under section 65(2)(b) there may be considerable argument about whether a mistake in the name of a party has those characteristics. However, no such argument was put to us on the present appeal.

35 Even if a proposed amendment is one whose effect could be described by the language in para (b) of section 65(2), there is still a discretion in the court whether to permit that amendment. Section 65(2) contemplates that any amendment made under section 65(2) will be effected through leave granted under section 64(1)(b). Thus, the discretion of the court concerning whether to grant leave to amend under section 65(2) needs to be exercised in accordance with section 64(2). Section 64(2) itself requires the court to exercise its discretion in accordance with section 58, which in turn requires the court to have regard to the provisions of sections 56 and 57. Even if it were not inherent in the grant of a discretion to a judicial officer, section 58(2)(b) enables the court to have regard, in an application for an order under section 65(2)(b), to matters such as the knowledge that the person proposed to be added as a party had of the proceedings during the limitation period, and the nature and degree of any prejudice that the person sought to be added would suffer if the order were made.

36 No evidence or submission was put to the Judicial Registrar concerning a discretionary reason why she should not make the joinder order, nor is any such discretionary question raised before us. Rather, the entire argument before us has concerned whether power existed to make the joinder order.

37 Section 18A Limitation Act provides a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff or to the person through whom the plaintiff claims, for a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury. Section 18A(1)(c) states that section 18A does not apply to “a cause of action to which Division 6 applies”.

38 Division 6 runs from sections 50A to 50F inclusive. Section 50A provides:

“(1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

Civil Liability Amendment (Personal Responsibility) Act 2002

39 The Civil Liability Amendment (Personal Responsibility) Act 2002 was Act No 92 of 2002. It was assented to on 28 November 2002. Schedule 4.6 of that Act made the insertion of Division 6 into the Limitation Act. Schedule 4.6 commenced on 6 December 2002 (Government Gazette No 249 of 6 December 2002, page 10529). Thus, because the injury in relation to which the Opponent sues occurred after that date, on 30 April 2003, Division 6 applies to it, and the limitation period established by section 18A does not apply to it.

40 Section 50A(4) provides that section 50A

“… extends to a cause of action that:

(a) is a survivor action …”

41 Section 50B provides an exhaustive definition:

“

survivor action

Law Reform (Miscellaneous Provisions) Act 1944

42 Section 2(1) Law Reform (Miscellaneous Provisions) Act 1944 provides for all actions against a deceased’s estate to survive the death of the deceased, apart from some particular identified causes of action that are not relevant in the present case. Hence, any cause of action against Ms Antoun did not end with her death.

43 The cause of action that the Opponent asserts in the present case is not a “survivor action” as defined by section 50B Limitation Act. Even though the Opponent asserts a cause of action against Ms Antoun that has survived so as to be enforceable against her estate, that type of action is not a “survivor action” within the definition. A “survivor action” within the definition is an action that relates to a tort of which the person who has died has been the victim. It does not extend to a cause of action that survives against the estate of a person who is the alleged perpetrator of a tort.

44 Even though the present action is not a “survivor action” as defined, that does not prevent Division 6 from applying to it. When section 50A(4) says that section 50A “extends to” a cause of action that is a survivor action, it is not limiting the generality of section 50A(2). It is sufficient for Division 6 to apply to the present action that the present action falls within section 50A(2).

45 Division 6 contains the following provisions:

“ 50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

3 year post discoverability limitation period

12 year long-stop limitation period

Note. The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

…

50D Date cause of action is discoverable

discoverable

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

ought to know

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.”

46 There is provision in section 60A and following for the court to have a discretionary power to extend the three-year limitation period for personal injury cases. However, section 60A expressly provides that that procedure does not apply to a cause of action to which Division 6 of Part 2 applies. Thus, it does not apply to the present action.

47 Section 62A confers on the court power, in relation to a cause of action to which Division 6 of Part 2 applies, to grant an extension of the 12 year long-stop limitation period in certain circumstances. However, there is no power under the Limitation Act for the court to confer an extension of time in relation to the three-year post discoverability limitation period.

48 The hearing below proceeded on the assumption that the Opponent’s cause of action had expired. If it were just a matter of logic, that ought to mean that the three-year post discoverability period had expired. However, I am not confident that I would be justified in inferring that both parties actually assumed that the three-year post discoverability limitation period had expired. There was no mention in either the transcript of argument or the Judicial Registrar’s reasons of the particular limitation period that it was assumed had expired. Mr Gambi, who was counsel for the Claimant both on the appeal and in the court below, referred in his written submissions on the appeal to it being a consequence of the orders of the Judicial Registrar that “the claimant was deprived of the opportunity to argue actual prejudice in an application for extension of time under the Limitation Act 1969 (NSW).” He submitted that at the time of the order of 18 August 2006 the Opponent was out of time and that therefore “the Opponent’s cause of action against the late Linda Antoun was not maintainable pursuant to s 18A(2) of the Limitation Act 1969”. His list of authorities included a reference to section 18A Limitation Act. Those submissions incorrectly proceed on the basis that the limitation period applicable to the Opponent’s injury is one that arose under section 18A, and that it was capable of extension under the Limitation Act.

49 I note that the Civil Procedure Act was enacted later than the Civil Liability (Personal Responsibility) Act. Thus, when section 65(5) says “this section has effect despite anything to the contrary in the Limitation Act 1969” it is talking about a Limitation Act that has already been recast by the Civil Liability (Personal Responsibility) Act. Thus, section 65(2)(b) can permit what is in substance an extension of a limitation period, even though that limitation period is incapable of extension under the Limitation Act itself.

50 The fact that sections 64 and 65 Civil Procedure Act between them provide the only means by which a limitation period for a cause of action founded on negligence, nuisance, or breach of duty for damages for personal injury can be extended, if the three-year post discoverability limitation period has expired, focuses attention upon the need for close examination of the appropriateness, in the circumstances of the particular case, of exercising the discretion that is provided by sections 64 and 65. However, as I have said earlier, no argument was based on discretion in the court below, or on the appeal. Any such discretionary argument could well take into account the facts that resulted in the limitation period having expired – ie, the facts by reference to which the cause of action was discoverable on a particular date. The issue of when this cause of action was discoverable was not litigated in the court below. Nor were arguments concerning culpability for the delay in starting the action, or prejudice. Thus, the approach that the parties have taken to this appeal means that it is being decided purely on the basis of the existence of the power under section 65(2)(b). I cannot help thinking that that is an artificially narrow basis, but it is a basis that the parties themselves have adopted.

51 One related group of the Claimant’s submissions is that the Judicial Registrar’s orders made on 18 August 2006 are vitiated because Ms Antoun was dead at the time they were made, no grant of probate had issued, and the making of the orders had the effect of depriving the Claimant of the opportunity to argue actual prejudice in an application for extension of time under the Limitation Act. In my view, it is not necessary to decide the first two of those matters. That is because the hearing of the two Notices of Motion on 2 February 2007 gave the Claimant the opportunity to put forward all evidence and argument relating to why the Claimant ought not be made a second defendant in the proceedings pursuant to section 65 Civil Procedure Act. The substantial effect of the order that the Judicial Registrar made on 2 February 2007 on the first Notice of Motion was that, regardless of the validity or legal propriety of the orders that had been made on 18 August 2006, the Claimant should be added as a second defendant in the proceedings.

52 The third matter has no substance. As I have explained earlier, if the three-year post discoverability limitation period had expired, there was no opportunity lost to argue actual prejudice in an application for extension of time, because there could not be any extension of time.

53 In the present case, the Judicial Registrar relied on section 65 as the basis of the orders that are appealed against. Two separate questions arise concerning the correctness of her having done so. The first is whether the amendment is one “to correct a mistake in the name of a party to the proceedings”, within the meaning of section 65(2)(b). The second is whether the type of order actually made – whereby instead of Mr Jamiel Antoun being the only defendant, the Claimant and Mr Jamiel Antoun are both defendants – is a type of amendment that section 65(2)(b) permits.

54 Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 concerned a shipment of goods that were damaged in transit. The owner of the damaged goods sued the shipowner in connection with that damage, not knowing that the ship had been let on a bareboat charter. The effect of the charter was that it was not the owner but the charterer that employed the ship’s crew and had issued the bill of lading. After expiry of a limitation period, the shipper sought to amend the initiating process under the Victorian equivalent of section 65(2)(b) to substitute the name of the charterer for the name of the owner. The rule in question in Bridge Shipping, rule 36.01 of the Supreme Court Rules (Vic), provided:

"(1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(2) In this Order `document' includes originating process, an indorsement of claim on originating process and a pleading.

...

(4) 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.

(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.

(6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, 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 his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.

(7) For the purpose of paragraph (6) `any other party to the proceeding' includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party."

55 McHugh J (with whom Brennan and Deane JJ agreed) said, (at 259-261):

Holmes v Permanent Trustee Co of NSW Ltd

56 Even though McHugh J in this passage talks of “substituting” one person for another person as a party to the action, that was because the particular case with which the Court was then concerned involved what was clearly a substitution of one entity for another.

57 In the result, the application in Bridge Shipping failed. It failed because Bridge Shipping had at all times intended to sue the owner of the vessel. Its mistake did not concern the name of the entity that was the owner of the vessel. Rather, its mistake was in thinking that the owner of the vessel, rather than the charterer, was the carrier of the goods.

58 The principles stated in Bridge Shipping have been applied in this Court to the construction of Part 20 rule 4 Supreme Court Rules and to the corresponding provisions in the former District Court Rules 1973: eg, Archbishop of Perth v “AA” to “JC” inclusive (1995) 18 ACSR 333 at 349 per Cole JA (with whom Meagher JA agreed); Maamary v Pepsico Australia Pty Ltd [2001] NSWCA 375 at [51] ff per Giles JA (with whom Mason P and Studdert J agreed). In my view they should also be applied to the construction of section 65(2)(b).

59 In Greentree v G D Searle and Company (Supreme Court of NSW, 31 July 1992, unreported) McInerney J considered a situation where various plaintiffs in a class action sought damages arising from their use of a defective product. The proceedings had been commenced against an entity described as “G D Searle and Company”. Those proceedings were begun in the belief that G D Searle and Company had manufactured, designed and marketed the product. No such entity as “G D Searle and Company” existed. Rather, there was an entity called “G D Searle and Co”. Further, G D Searle and Co had carried on the business relating to the product during only part of the time to which the claim related, up to May 1978. From May 1978 until January 1986 another entity, SCI Corp, carried on the business. In January 1986 G D Searle and Co was renamed the Nutrasweet Company, and another entity, that had been incorporated in 1985, adopted the name G D Searle and Co, and, it was alleged, carried on the business thereafter. Application was made under Part 20 rule 4 Supreme Court Rules to substitute the Nutrasweet Company, SCI Corp, and G D Searle and Co for G D Searle and Company. Part 20, rule 4 then provided:

“(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.

…

(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.”

60 McInerney J held that there had been a mistake in the name of a party, in the sense explained in Bridge Shipping. This was, in substance, because the plaintiffs had intended to sue the entity that had manufactured, designed and marketed the product, and mistakenly believed that G D Searle and Company had manufactured, designed and marketed the product at all relevant times.

61 McInerney J then considered whether the rule enabled the names of three defendants to be substituted for the name of one defendant. He said (at 14):

“… the entity intended to be sued is that entity with the properties described in the statement of claim. What has appeared … is that, on the information supplied by the defendants, there is more than one entity that has such properties.”

62 In response to an argument that what was being done was adding parties rather than substituting parties, McInerney J said (at 15):

Interpretation Act 1986

63 The reference to “s 8(b) of the Interpretation Act 1986” is clearly intended to be a reference to s 8(b) Interpretation Act 1987, which provides “in any act or instrument … a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form.”

64 Another decision in which multiple parties replaced a single party is the decision of this Court in McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660. There, the court considered Part 10 Land and Environment Court Rules 1980, rules 1 and 2 of which substantially reproduced rules 1 and 2 of Part 20 Supreme Court Rules. Various members of an Environmental Preservation Society had objected to the Shire Council concerning a proposed development. After the council granted a development consent, various members of the Society, including Mr McInnes, wished to appeal to the Land and Environment Court against that decision. In the belief that an objection had been lodged by the Society, proceedings were begun in the name of Mr McInnes, expressed to be on behalf of the Society. In fact, neither Mr McInnes, nor the Society itself, had lodged any objection. Only objectors had the standing to appeal. The developer sought dismissal of the appeal on the ground that Mr McInnes lacked standing. Mr McInnes then sought to amend the proceedings by substituting a Mr and Mrs Clarke, members of the Society who had lodged an objection, as appellants. The Court held that there had been the type of mistake that attracted the analogue of section 65, and allowed the amendment. Priestley JA, with whom Kirby P and Clarke JA agreed, held (at 669):

"… the court in my opinion had power to substitute Mr and Mrs Clarke for Mr McInnes as the applicants in the appeal."

65 It does not appear from the report that any argument was put that there was no power to substitute two appellants for one appellant, but, even so, the decision of the Court clearly assumed that that power existed.

66 In Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 the Queensland Court of Appeal considered Order 32 r 1 of the Rules of the Supreme Court (Qld). It provided:

“(1) The Court or a Judge may, in any cause or matter, at any stage of the proceedings, allow or direct either party to alter or amend the writ of summons, or any indorsement thereon, or any pleadings or other proceedings, in such manner and on such terms as may be just.

(2) Where an application to the Court or a Judge for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court or a Judge may nevertheless grant such leave in the circumstances mentioned in that paragraph if the Court or a Judge thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court or a Judge 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 person intending to sue or, as the case may be, intended to be sued.”

67 Another provision expressly permitted an order to be made under O.32 r.1(3) after a relevant period of limitation had expired. A Mr Hayward had begun an action alleging that his helicopter had been damaged as a result of being negligently repaired by the defendant. After the limitation period had expired, it was realised that a company associated with Mr Hayward was the owner of the helicopter, and an application was made to join that company as a plaintiff, on the basis that it had always been intended that the owner of the helicopter would sue. For reasons not clear from the report, Mr Hayward wished to remain a plaintiff. It is not clear from the report what rights he wanted to assert, or how he had any such rights even though he was not the owner of the aircraft, or how the rights he wanted to assert related to the causes of action that had been originally alleged. What is clear is that the application failed. Pincus JA and Ambrose J said (at 158):

“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.”

68 Even though there is a fairly close textual similarity between O.32 r.1 of the Queensland rules and sections 64(1), 65(1), and 65(2)(b) Civil Procedure Act, I do not regard Hayward as decisive of the present case. When the report is silent about the various matters I have mentioned, I find it hard to understand the precise basis for the decision.

69 In my view, if it was clear that a plaintiff intended to sue the owner of a particular piece of property, and sued A in the belief that A was the owner of the property, but in fact the owners were A and B, there is no reason why an amendment to add B could not count as an amendment “so as to correct a mistake in the name of a party to the proceedings”. If the plaintiffs in Greentree had initially sued G D Searle and Co (instead of G D Searle and Company) in the belief that it had manufactured, designed and marketed the product through the whole of the time with which the litigation was concerned, I see no reason why it would not have been possible, under a provision like section 65(2)(b), to make an order that had the effect that Nutrasweet Co, SCI Corp, and G D Searle and Co were thenceforth named as defendants. As I have earlier stated, the words “whether or not the effect of the amendment is to substitute a new party” do not limit the width of the power under section 65(2)(b).

70 The principle that Pincus JA and Ambrose J stated in Hayward (quoted at para [67] above) is ambiguous. Its meaning changes depending on what one takes to be the party “whose name is sought to be corrected”. One possible reading is that the “party whose name is sought to be corrected” is identified by a person’s name. On that reading, if the principle were correct, in the first example I considered in para [69] A and B could not become the defendants in the action. In the second example I considered in para [69] it would not be possible to make an order that had the effect that Nutrasweet Co, SCI Corp and G D Searle and Co were thenceforth named as defendants. Those results would involve, in my view, not acting in accordance with the decision of McHugh J in Bridge Shipping, that a provision like section 65(2)(b) should be given "the widest interpretation which its language will permit". As well, that reading of the principle articulated by Pincus JA and Ambrose J places a gloss upon the wording of a provision like section 65(2)(b) that is not to be found in its language. I have explained, at paras [33]–[35] above, what in my view is involved in the application of section 65(2)(b). Enquiring whether an order will result in the joinder of a party additional to a person whose name has previously appeared in the originating process is simply not part of the task that is performed when section 65(2)(b) is applied. In my view, if the principle stated by Pincus JA and Ambrose J is read so that the “party whose name is sought to be corrected” is identified by a person’s name, then that principle is mistaken.

71 However, if the “party whose name is sought to be corrected” is identified by the attributes that the party has, the principle is unexceptionable. In the first example I considered at para [69], the party whose name is sought to be corrected is the owner of the property, and adding B as a defendant is simply adding the name of someone so that the owner of the property is correctly identified. Adding B in that way is not joining a party additional to the party whose name is sought to be corrected. Similarly, in the second example I considered at para [69], the amendment to name Nutrasweet Co, SCI Corp and G D Searle and Co as the defendants effectively corrects the name of a party so that the entity that manufactured, designed and marketed the product is now a party, and no additional party is joined.

72 In Sullivan v Van der Broek [1999] NSWSC 1177 Windeyer J considered an application brought by a person who had been injured while participating in an event organised by a voluntary unincorporated association, the Nambucca Valley Galah Day Association. The plaintiff sued five people who she thought were members of the organising committee of the association who had the care control and management of the event. Some of the people named as defendants denied they were members of the committee. The plaintiff then applied under Part 20, rule 4 Supreme Court Rules to substitute for the five defendants originally named new defendants consisting of the original five defendants, and four more defendants. That application was brought at a time when the limitation period had expired.

73 Windeyer J accepted (at [8]) that the mistake the plaintiff had made “was that all individual members who met that description were not included as defendants in these proceedings.” He adopted McInerney J’s interpretation of Part 20, rule 4(3) in Greentree and said (at [8]):

“The rule contemplates the substitution of more than one party if they answer a particular description.”

74 Windeyer J held, however, that the mistake that had been made by the plaintiff was not a mistake “in the name of a party”, even within the broad reading of that expression laid down by McHugh J in Bridge Shipping. The Statement of Claim did not allege that the original five defendants were the only members of the committee or “the members of the committee”, merely that they were “members of the committee”. The plaintiff was still claiming that the original five defendants were members of the relevant committee. Thus, Windeyer J held that there had been no mistake of the type that the rule was concerned with.

75 Windeyer J noted (at [9]) the remark of McInerney J in Greentree that “adding of parties normally includes the leaving of the original party in the action. In this case this is clearly a substitution of three parties for one party”, and observed that McInerney J’s remark accorded with the decision of the Queensland Court of Appeal in Hayward. However, that observation of Windeyer J was obiter. His decision did not depend upon following or accepting Hayward, but (correctly, with respect) upon deciding whether the particular mistake that had been made counted as a “mistake in the name of a party”.

76 In Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579 Young CJ in Eq considered an application under sections 64 and 65 Civil Procedure Act. The action in question had been brought by a company in liquidation, seeking recovery of a preference or uncommercial transaction pursuant to section 588FF Corporations Act 2001. Such an action can only be brought by the liquidator, not by the company in liquidation. By the time this error was realised, the three-year limitation period from the relation-back day, arising under section 588FF(3) Corporations Act, had expired. The action that named the company as plaintiff had been commenced in time. The solicitor who had drafted the originating process gave evidence that he had been of the view that the company was the appropriate plaintiff, and that he had quite deliberately decided to commence proceedings in the name of the company.

77 Young CJ in Eq dismissed the application. I respectfully agree with that outcome. There had been no mistake in the name of a party, merely a mistake concerning a matter of law about whether an action to recover a preference or uncommercial transaction should be brought by the company in liquidation or by the liquidator. However, in the course of reaching that decision, his Honour said (at [39]):

Hayward v Darling Downs Aircraft Services Pty Ltd

Sullivan v Van der Broek

78 I respectfully disagree with this reading of section 65(2)(b). I doubt that a rigid dichotomy can be drawn between adding an additional party, and substituting one alleged party for another. If it mattered, I see no violence to language in saying that litigation started out with A as the defendant, but then A and B were substituted as the defendant. More importantly, the scope of the power in section 65(2)(b) does not depend upon whether or not the amendment is one that “substitutes” a new party. As earlier explained, I would not follow the first possible reading of the principle in Hayward, and in my view Sullivan v Van der Broek did not have as its ratio that there was never any power under Part 20, rule 4 for an additional party to be added, as opposed to substituting one alleged party for another.

79 Some support for the view at which I have arrived can be derived from the decision of the Court of Appeal for England and Wales delivered on 9 July 2007 in Adelson v Associated Newspapers Limited [2007] EWCA Civ 701. While that case was most directly concerned with the present English Civil Procedure Rules 1998 (UK) – the drafting of which differs in some respects from section 65 Civil Procedure Act and the former Part 20 Rule 4 Supreme Court Rules – it gave detailed consideration to the former English Order 20 r 5, on which those New South Wales provisions had been based. Lord Phillips CJ, delivering the judgment of the Court, said (at [31] and [32]):

“31. The rule presupposes that there is a person intending to sue. The mistake envisaged in relation to the name of the claimant is one under which the name used for the claimant is not the name of the person wishing to sue. Such a mistake is likely to be made by an agent of the person intending to sue. Where the claimant is a company the mistake will always be that of an agent, but identifying the person intending to sue may create difficulties.

32. The rule also envisages that there will be a person intended to be sued. The mistake envisaged in relation to the defendant will be one under which the name used for the defendant is not the appropriate name to describe the person that the claimant intends to sue. Thus the rule envisages a defendant identified by the claimant but described by a name which is not correct.”

80 His Lordship identified (at [38]) the test that had been stated in The Al Tawwab [1991] 1 Lloyd's Rep 201 for the application of the English rule. That test, as expressed by Lloyd LJ in The Al Tawwab at 207, permitted an amendment to correct the name of a party if:

“… it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise."

81 Because one of the ships that was involved in The Al Tawwab was called the 'Sardinia Sulcis', that test has become known as “the test in the 'Sardinia Sulcis’.”

82 His Lordship summarised the principles that applied to the English O 20 r 5 (at [43]):

“43i) The mistake must be as to the name of the party in question and not as to the identity of that party. Such a mistake can be demonstrated where the pleading gives a description of the party that identifies the party, but gives the party the wrong name. In such circumstances a 'mistake as to name' is given a generous interpretation.

ii) The mistake will be made by the person who issues the process bearing the wrong name. The person intending to sue will be the person who, or whose agent, has authorised the person issuing the process to start proceedings on his behalf.

iii) The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used.

iv) Most if not all the cases seem to have proceeded on the basis that the effect of the amendment was to substitute a new party for the party named.”

83 His Lordship accepted (at [56]) that the Sardinia Sulcis test had a continuing role in interpretation of the current English rules. He noted (at [57]) that:

Sardinia Sulcis

test

84 The factual situation under consideration in Adelson was one where an action had been begun in the name of a corporation that was the Second Claimant, alleging that it traded in a particular industry and manner, and that the conduct of the defendant had damaged its trade. In fact, the Second Claimant was a holding company, and the trading business was carried on by two of its subsidiaries. The application in question was to join those subsidiaries as Third and Fourth Claimants. Counsel for the Claimants described the order sought as one for “partial substitution”. The Court of Appeal upheld the primary judge’s decision that the joinder should be refused, for reasons to do with the particular mistake that had been made and the particular causes of action that were alleged. However, in the course of so deciding, Lord Phillips CJ said (at [65]-[66]):

“65 If the particulars of the activities of the three corporate Claimants that the Claimants seek to add by amendment had been pleaded as relating to the Second Claimant alone in the original pleading, it would have strengthened the Claimants' case that they were indeed seeking partial substitution. In any event, however, if one asks the question whether the claims that the Third and Fourth Claimants seek to advance are the same as the claims that the Second Claimant would have been able to advance had it carried on the activities of the Third and Fourth Claimants itself, rather than through subsidiaries, we are inclined to think that the answer is 'yes'. If a company runs a number of businesses in different parts of the world and the company is defamed, the damage is likely to depend upon the extent to which the reputation of the individual businesses is harmed. It does not seem to us that it should affect the overall damage, or the overall damages, if each individual business is carried on by a subsidiary and claims are brought by all the companies in the group.

66 For these reasons we are not convinced that it is impossible to treat this as a case of substitution, merely because the proposed amendments result in three corporate claims rather than one, albeit that to permit addition of parties in such circumstances pursuant to CPR 19.5(3) would certainly break new ground.”

85 All of the remarks I have quoted from Adelson seem to me to be applicable to section 65(2)(b) Civil Procedure Act. In saying that, I make clear that I do not see any difference of substance between the Sardinia Sulcis test and the principles laid down by McHugh J in Bridge Shipping.

86 The Statement of Claim as originally filed proceeded on the basis that Mr Jamiel Antoun had three separate capacities – that he was the owner of the premises, that he was the occupier of the premises, and that he was the person carrying out the building work that caused the mud to escape. The allegations that he had "permitted" the mud to escape, and that he "failed to keep the public footpath adjacent to his premises free of" the mud are allegations not dependent upon any negligence of Mr Antoun in his capacity as a builder – they could equally well have been made if someone else had been the builder and Mr Antoun had been merely an owner and occupier. Rather, they are facts that were alleged for the purpose of suing for the tort of public nuisance.

87 The tort of public nuisance can be committed by a builder who carries out work on private land in a way that results in the adjacent public footpath becoming unsafe: Volman t/as Volman Engineering v Lobb [2005] NSWCA 348 at [35]-[38]. However, that tort can also be committed by an occupier of land if the nature of operations carried out on private land is such as to involve an appreciable risk that the property may become the source of a public nuisance, and the occupier failed to take reasonable steps to ascertain whether or not that is happening, so as to be able to take steps to remedy any such nuisance: Volman at [43]-[47]; Holling v Yorkshire Traction Co Ltd [1948] 2 All ER 662; Cartwright v McLaine & Long Proprietary Limited (1979) 143 CLR 549. (No argument was addressed to us concerning whether this aspect of the law of public nuisance has been affected by Brodie v Singleton Shire Council (2001) 206 CLR 512.)

88 The Judicial Registrar evidently accepted the submission that the relevant mistake was that the Opponent had intended to sue the owner but had made a mistake as to who the owner was. No argument was put to her about there being any distinction, for the purpose of the law of public nuisance, between someone having the capacity of owner and having the capacity of occupier. Nor was any such argument put to us. It is now known that Mr Antoun was not the owner. That, at the least, raises an arguable possibility that he was also not, in the eyes of the law, the occupier.

89 The objective of the amendment is to add a party, so that the defendants to the action, between them, have the capacities that the statement of claim had originally ascribed to Mr Jamiel Antoun, namely those of owner, occupier and builder. It does not widen the scope of the torts alleged against the owner, occupier and builder. In my view, the making of such an amendment falls within the scope of section 65(2)(b).

90 No argument has been raised concerning any other reason why it is not appropriate for the amendment to have been made. There are some respects in which the Amended Statement of Claim contains deficiencies in pleading, but no argument was put that these deficiencies were such that the Amended Statement of Claim should not have been permitted to be filed.

91 There is one respect, however, in which the Amended Statement of Claim goes wider than correcting the name of a party. To the extent to which there is doubt about whether Mr Jamiel Antoun, or Ms Linda Antoun was the occupier of the premises, or whether both of them count as occupiers in the eyes of the law, it is, in my view, within the scope of section 65(2)(b) to sue both Mr Jamiel Antoun and the legal representative of Ms Linda Antoun, making allegations further or in the alternative that one of them, or the other, was the occupier. However, it is now known definitely that Mr Jamiel Antoun was not the owner of the premises. Insofar as the Amended Statement of Claim continues to allege that he was the owner of the premises it is mistaken, and does not correct an error in the name of the party originally sued.

92 Because the appeal should succeed on this very narrow ground, leave to appeal should be granted, the appeal should be allowed and the order below set aside. Instead, an order should be made granting leave to the Opponent to file a Further Amended Statement of Claim in the same form as the Amended Statement of Claim, save only that it does not contain an allegation that Mr Jamiel Antoun was the owner of the premises. Even though the appeal succeeds on this very narrow ground, in substance the Claimant has lost. Thus the Claimant should pay the costs of the Opponent.

93 I propose the following orders:

(1) Leave to appeal granted.

(2) Direct Claimant to file, within 14 days, a notice of appeal in the form of the draft already supplied to the Court.

(3) Orders below set aside. In lieu thereof, grant leave to the Opponent to file a Further Amended Statement of Claim, in the same form as the Amended Statement of Claim, save only that it does not contain an allegation that Mr Jamiel Antoun was the owner of the premises.

94 YOUNG CJ in EQ: This is the concurrent hearing of an application for leave to appeal, and, if leave to appeal is granted, an appeal from orders of Judicial Registrar McDonald of the District Court.

95 It is odd that a matter involving the review of a procedural order in the District Court made by a person below the rank of judge is not properly a matter for the District Court Judges. However, s 127 of the District Court Act 1973, clearly nominates this Court as the court of review.

96 The basal facts are set out in the reasons of Campbell JA and there is no reason for me to repeat them.

97 I agree with the orders proposed by Campbell JA, but for the reasons that follow, I do not with respect consider that I can endorse all of his Honour’s reasoning.

98 It must be the case that the order of the Judicial Registrar in August 2006 was a nullity as it was purportedly made against a dead person who had never been served: Deveigne v Askar [2007] NSWCA 45.

99 Accordingly, when asked to set aside her order, the Judicial Registrar ought to have done so, unless she reached the conclusion that, in light of the facts and circumstances as subsisted when she was considering the matter in February 2007, the same order ought to have been remade.

100 However, the way in which the case was conducted below and on appeal means that I need only note these matters and pass on to the merits.

101 The statement of claim as originally filed, so far as is presently relevant states:

1. The defendant is, and was at all material times, the owner and occupier of … land situated at 9 Centennial St, Marrickville. …

3. On or about 30 April 2003 … the defendant had carelessly and negligently carried out certain activities on the said land which resulted in a large quantity of wet slippery mud escaping from the said land and covering the public footpath … thereby creating … a nuisance upon the said public footpath.

5. The defendant created or permitted a nuisance upon the public footpath adjacent to his premises (particulars given).

102 On 13 February 2007, after the Judicial Registrar’s decision, a document called “Second Amended Statement of Claim” was filed which claimed that Jamiel Antoun or alternatively Linda Antoun (now deceased) was the owner and/or occupier of the relevant land, but otherwise left the claims as they were.

103 The second amended statement of claim retains the claim that Jamiel Antoun was the person who actually caused the mud to flood the footpath.

104 Thus, basically, the original document claimed that Jamiel Antoun was: (a) the builder; and (b) the owner/occupier. It still seeks to say this, but, in addition, it says that, alternatively, Linda Antoun was the owner/occupier.

105 The question is whether this amendment after the expiry of the relevant limitation period, can be permitted.

106 The plaintiff is not merely substituting one party for another because of a mistake. The plaintiff seeks to keep the existing action and add a new count against a new party.

107 Generally, this would not be permitted as the Queensland Court of Appeal has said in Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153, as Windeyer J said in Sullivan v Van der Broek [1999] NSWSC 1177 and as I said recently in Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579.

108 However, I agree with Campbell JA that in the situation where the plaintiff mistakenly thought that A was the proper defendant, whereas it was the jointure of A, B and C, it must be considered a case of substitution not a case of adding a fresh party. This was not a situation considered in the authorities referred to in the preceding paragraph.

109 The High Court has made it clear that it is ordinarily the obligation of a court to follow the decision of an interstate Full Supreme Court.

110 The obligation is similar, though not as high as the obligation of a single judge of this Court to follow the decision of the Court of Appeal.

111 It is never sufficient reason to decline to follow an appellate decision because one cannot understand its reasoning or even because one considers it to be wrong. However where the decision in question is made by an interstate Full Court, a judge can decline to follow it, if he or she considers the decision to be plainly wrong.

112 I consider that I am bound to follow the decision in Hayward.

113 However, if the situation here were simply that the plaintiff mistakenly thought that Jamiel was the owner and occupier as well as the builder and sought that the case proceed against Jamiel as the builder and Linda’s estate as the owner/occupier, I would agree on the way the motion was argued below that the appropriate amendment should be made.

114 However, as the claim (albeit now only an alternative claim) remains that Jamiel was the owner/occupier, the amendment is adding a new party and new cause of action additional to the original claim and in my view is beyond the scope of s 65 of the Civil Procedure Act 2005.

115 It must be remembered that s 65 of the Civil Procedure Act provides only a limited escape from the defence of limitation and that where it is appropriate “to correct a mistake in the name of a party”.

116 To my mind, the present formulation of the plaintiff’s claim demonstrates that the plaintiff made no mistake in the name of the party she wished to sue.

117 Accordingly, my view is that the Judicial Registrar should not have made the order that she did make. Leave to appeal ought to be given and the appeal allowed.

118 However, my view also is should the plaintiff now seek to amend further by deleting the claim that Jamiel was the owner/occupier, I would allow the action to continue against both defendants.

119 The order proposed by Campbell JA for all practical purposes reaches the same result, except perhaps as to costs. As my brethren are agreed on the order as to costs, it is of no value for me to say anything further about them.

120 In the light of ss 56, 58 and 59 of the Civil Procedure Act, judges must not now delight in technicalities but must strive to produce just and fair results.

121 Thus I consider, despite what I have written, that I can join in the orders proposed by Campbell JA.

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Citations

Greenwood v Papademetri [2007] NSWCA 221

Most Recent Citation

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CITATION:	Greenwood v Papademetri [2007] NSWCA 221
HEARING DATE(S):	27 July 2007
JUDGMENT DATE:	27 August 2007
JUDGMENT OF:	Tobias JA at 1; Campbell JA at 2; Young CJ in Eq at 94
DECISION:	(1) Leave to appeal granted.; (2) Direct Claimant to file, within 14 days, a notice of appeal in the form of the draft already supplied to the Court.; (3) Orders below set aside. In lieu thereof, grant leave to the Opponent to file a Further Amended Statement of Claim, in the same form as the Amended Statement of Claim, save only that it does not contain an allegation that Mr Jamiel Antoun was the owner of the premises.; (4) Claimant to pay costs of the Opponent of the application.
CATCHWORDS:	PRACTICE AND PROCEDURE – parties – joinder of party to proceedings – adding a party after expiration of limitation period – effect of joinder of party on operation of limitation periods – substitution of party – correcting mistake in name of party – whether multiple parties may replace single party – date as at which amendment of parties effective – type of mistake able to be corrected – existence of discretion even if relevant type of mistake found to exist – Civil Procedure Act 2005, s 65(2)(b) - LIMITATION OF ACTIONS – general – personal injury actions – Limitation Act 1969, s18A, Div 6 – “survivor action” – circumstances in which extension of time to sue in personal injury actions can be granted – interaction of Limitation Act and section 65(2)(b) Civil Procedure Act - TORTS – nuisance – public nuisance – elements of offence – who may be sued for public nuisance – where builder carried out work on private land that created public nuisance – liability of builder – liability of occupier of land – liability of owner of land - WORDS AND PHRASES – “correct a mistake in the name of a party to the proceedings”
LEGISLATION CITED:	Civil Liability (Personal Responsibility) Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Civil Procedure Act 2005 Civil Procedure Rules 1998 (UK) Corporations Act 2001 District Court Act 1973 District Court Rules 1973 Interpretation Act 1987 Land and Environment Court Rules 1980 Law Reform (Miscellaneous Provisions) Act 1944 Limitation Act 1969 Real Property Act 1900 Rules of the Supreme Court (Qld) Supreme Court Rules (Vic) Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Adelson v Associated Newspapers Limited [2007] EWCA Civ 701 The Al Tawwab [1991] 1 Lloyd's Rep 201 Archbishop of Perth v “AA” to “JC” inclusive (1995) 18 ACSR 333 Bebonis v Angelos (2002) 56 NSWLR 127 Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 Brodie v Singleton Shire Council (2001) 206 CLR 512 Cartwright v McLaine & Long Proprietary Limited (1979) 143 CLR 549 Deveigne v Askar [2007] NSWCA 45 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 Greentree v G D Searle and Company (Supreme Court of NSW, 31 July 1992, unreported) Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 Holling v Yorkshire Traction Co Ltd [1948] 2 All ER 662 Maamary v Pepsico Australia Pty Ltd [2001] NSWCA 375 McGee v Yeomans [1977] 1 NSWLR 273 McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579 Sullivan v Van der Broek [1999] NSWSC 1177 Volman t/as Volman Engineering v Lobb [2005] NSWCA 348
PARTIES:	Lyne Greenwood, Executrix of the Estate of the Late Linda Antoun - Claimant Mary Papademetri - Opponent
FILE NUMBER(S):	CA 40077/07
COUNSEL:	R Gambi - Claimant B O'Sullivan - Opponent
SOLICITORS:	Barwick Boitano Lawyers, North Parramatta - Claimant Bolzan & Demitri Solicitors, Leichhardt - Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1283/06
LOWER COURT JUDICIAL OFFICER:	Judicial Registrar McDonald
LOWER COURT DATE OF DECISION:	2 February 2007