New South Wales
Court of Appeal
CITATION: Greenwood v Papademetri [2007] NSWCA 221 HEARING DATE(S): 27 July 2007
JUDGMENT DATE:
27 August 2007JUDGMENT 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 2005CASES 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…
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- AGLC
- Greenwood v Papademetri [2007] NSWCA 221
- Case
- [2007] NSWCA 221
- Decision Date
CaseChat Overview and Summary
The dispute in *Greenwood v Papademetri* concerned an application to join a new party to proceedings after the expiration of the relevant limitation period. The claimant sought to substitute Mr Jamiel Antoun as a defendant, alleging he was the owner of premises where a public nuisance had allegedly been created by building works. The primary issue was whether the court had the power to permit such a joinder or substitution, particularly given the operation of limitation periods.
The court was required to determine the scope of the court's power under section 65(2)(b) of the *Civil Procedure Act 2005* (NSW) to correct a mistake in the name of a party to proceedings, and whether this power extended to substituting multiple parties for a single party, or adding a party where the original party was correctly identified but the claimant wished to sue an additional or different party. A further issue was the interaction between section 65(2)(b) and the provisions of the *Limitation Act 1969* (NSW), specifically section 18A and Division 6, which govern extensions of time for personal injury actions.
The Court of Appeal held that section 65(2)(b) of the *Civil Procedure Act 2005* was not intended to permit the substitution of a new party for an existing party where the claimant had simply sued the wrong party, or wished to add a party against whom they had a cause of action. Instead, it was designed to correct genuine mistakes in the naming of a party, such as misspellings or incorrect descriptions. The court found that the claimant's application to join Mr Antoun was not a correction of a mistake in the name of a party, but rather an attempt to add a new defendant after the limitation period had expired. Consequently, the court set aside the orders below and granted leave to the claimant to file a further amended statement of claim, excluding the allegation that Mr Antoun was the owner of the premises. The claimant was ordered to pay the opponent's costs of the application.
The court was required to determine the scope of the court's power under section 65(2)(b) of the *Civil Procedure Act 2005* (NSW) to correct a mistake in the name of a party to proceedings, and whether this power extended to substituting multiple parties for a single party, or adding a party where the original party was correctly identified but the claimant wished to sue an additional or different party. A further issue was the interaction between section 65(2)(b) and the provisions of the *Limitation Act 1969* (NSW), specifically section 18A and Division 6, which govern extensions of time for personal injury actions.
The Court of Appeal held that section 65(2)(b) of the *Civil Procedure Act 2005* was not intended to permit the substitution of a new party for an existing party where the claimant had simply sued the wrong party, or wished to add a party against whom they had a cause of action. Instead, it was designed to correct genuine mistakes in the naming of a party, such as misspellings or incorrect descriptions. The court found that the claimant's application to join Mr Antoun was not a correction of a mistake in the name of a party, but rather an attempt to add a new defendant after the limitation period had expired. Consequently, the court set aside the orders below and granted leave to the claimant to file a further amended statement of claim, excluding the allegation that Mr Antoun was the owner of the premises. The claimant was ordered to pay the opponent's costs of the application.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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