Hayward v Darling Downs Aircraft Services Pty Ltd

[1992] QCA 376

IN THE COURT OF APPEAL

[1992] QCA 376

SUPREME COURT OF QUEENSLAND

Appeal No. 45 of 1992

BETWEEN:

CHARLES REGINALD HAYWARD

(Plaintiff) Appellant

AND:

DARLING DOWNS AIRCRAFT SERVICES
PTY LTD trading as DALBY AIR

MAINTENANCE

(First Defendant) Respondent

AND:

PETER LARARD

(Second Defendant) Respondent

JUDGMENT OF PINCUS J.A. AND AMBROSE J.

Delivered the Fourth day of November 1992

This is an appeal from an order of Williams J.
dismissing an application to amend proceedings by adding
Scartwater Pty Ltd as a plaintiff. The writ, which was
issued on 10 January 1991 by the appellant (Mr. C.R.
Hayward) as plaintiff, bore an endorsement as follows:

"The plaintiff's claim is against the First Defendant and the Second Defendant for:-

[a] Damages for loss and damage caused on 11th January 1985 by the negligence of the Defendants in the carrying out of overhaul, repair and installation work on Helicopter VH- KLQ;

[b] Interest;

[c] Costs".

The application to amend was made by a summons filed on
11 March 1992. It was supported by affidavit evidence,
which was in summary as follows:

Mr. Hayward is a director of two companies, Hayward Pty. Ltd. and Scartwater Pty. Ltd. Helicopter VH-KLQ was bought in 1984 from the first respondent ("Darling Downs") out of the funds of Hayward Pty. Ltd., but it was vested in Scartwater Pty. Ltd., which owned it until its destruction in 1987. The losses sought to be sued for were suffered by Scartwater Pty. Ltd. The solicitor who took instructions for the issue of the writ was told that the loss was incurred when the helicopter landed heavily after an engine failure, said to be attributable to the negligence of the respondents. The solicitor was told by Mr. Hayward that he owned the helicopter and that was confirmed by the solicitor from "other sources", apparently including the helicopter's certificate of registration.

In addition to that information, the judge was told at the hearing below that the writ was served in December 1991, some 11 months after it was issued, that appearances had been entered, but no statement of claim delivered. The judge was also told that the work mentioned in the endorsement in the writ was done before delivery of the helicopter consequent upon its sale in August 1984.

In addition, counsel told the judge that the respondents did maintenance and repair work on the helicopter in 1984 and 1985 and that Darling Downs was owed money due for maintenance and repair work it carried out on a number of aircraft, including the helicopter, at Mr. Hayward's request. In consequence, Darling Downs sued Mr. Hayward for those monies in the Supreme Court in 1985 and that action had been transferred to the District Court; a defence and counter-claim was filed.

It was in the course of giving instructions in relation to the action brought by Darling Downs that Mr. Hayward gave the solicitor instructions to issue the writ in the action with which we are presently concerned. Had the right plaintiff then been joined, the suit would have been in time, but by the time the application for joinder was made, more than seven years had passed since the date of the loss.

After referring to the authorities and to counsel's arguments, the judge held in effect that the test was whether the circumstances were "special or peculiar" so as to justify the making of an order of the kind sought. His Honour reviewed the facts and decided that question adversely to the appellant.

The summons, as has been mentioned, sought the addition of Scartwater Pty. Ltd. as a plaintiff and that was based upon the provisions of O.3 r.11, which reads in part as follows:

"The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or Judge to be just, order that the names of any persons improperly joined, whether as plaintiffs or as defendants, be struck out, or that the names of any persons who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added, either as plaintiffs or defendants".

It will be noted that there is no reference to the question of the operation of the limitation statute on the suit by or against a party newly joined.

In the appellant's outline of argument filed in April and also in oral argument, counsel for the appellant, while not abandoning reliance upon O.3 r.11, relied upon the provisions of O.32 r.1(3) to justify the making of the order sought. The latter reads as follows:

"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 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".

Paragraph (2) of O.32 r.1 expressly permits the making of an order under paragraph (3) after the relevant period of limitation has expired if the Court or Judge thinks it just to do so, and this appears to imply that the statute's operation in relation to the party whose name is corrected is considered as at the date of the writ.

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.

Counsel for the appellant relied upon Bridge Shipping Pty. Limited v. Grand Shipping S.A. (1991) 173 C.L.R. 231, a decision concerning the construction of Rules of the Supreme Court of Victoria the effect of which is somewhat similar to that of O.32 r.1(3). It was held there, amongst other things, that 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" (260, 261). Counsel for the appellant contended, in effect, that here Mr. Hayward intended to sue as the owner of the helicopter in question, from which it followed that Scartwater Pty. Ltd., the true owner, could be added. 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. We therefore find it unnecessary to consider the extent to which the High Court decision throws light upon the construction of O.32 r.1(3) of the Queensland Rules.

The remaining question is whether the primary judge was wrong in refusing the application under the only other Rule which was relied upon, O.3 r.11. The judge applied the decision of the Full Court in Lynch v. Keddell (No. 2) [1990] 1 Qd.R. 10; counsel agreed that the case established that the judge could make the order sought provided that "special or peculiar circumstances" were shown.

It does appear to us that Lynch v. Keddell (No. 2) is authority for the view just mentioned. It seems convenient briefly to review some of the more recent authorities, beginning with Archie v. Archie: Smythe (Third Party) [1980] Qd.R. 546. There, the principal judgment in the Full Court was given by Hoare J., with whom Kneipp J. agreed. Hoare J. expressed the view that in Mabro v. Eagle Star and British Dominions Insurance Co. Ltd. [1932] 1 K.B. 485 "the court seemed to treat the rule that a court will not allow the addition of a plaintiff in an action if the statute of limitations would be defeated as an inflexible rule" (560).

His Honour expressed disapproval of that view and suggested that a discretion to add a plaintiff outside the limitation period existed and could be exercised in special circumstances: 560, 561.

The reasons of Hoare J. involve an assumption that the added plaintiff would be treated as having sued at the date of issue of the writ, i.e. that the joinder would relate back to that date. The question of relation back so far as joinder of a defendant is concerned was dealt with in Ketteman v. Hansel Properties Ltd. [1987] A.C. 189, which has been treated as authoritative in this State. There, the rule under which the joinder was effected, like O.3 r.11, made no express provision for relation back. Lord Keith referred to the rule of practice that an additional defendant should not be allowed to be joined where the period of limitation has expired and discussed the reason for that rule:

"One theory is that an additional defendant, joined unconditionally, becomes a party to the action as from the date of issue of the writ against the original defendant, that is to say, that joinder is related back to that date" (200).

Lord Keith then referred to the provisions of the relevant limitation statute which provided that certain actions should not be brought after the expiration of so many years from the date on which the cause of action accrued (as does our statute) and added:

"A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action which is referred to must be the bringing of the action against that defendant in respect of that cause of action ... In my opinion there are no good grounds of principle or in reason for the view that an action is brought against an additional defendant at any earlier time than the date upon which that defendant is joined as a party in accordance with the rules of court" (200).

All the other judges either expressed themselves to the same effect or agreed with Lord Keith's reasons on the point. It appears impossible to treat the reasons as applicable to joinder of defendants only, not to joinder of plaintiffs.

The reason is that just as a cause of action "is necessarily a cause of action against a particular defendant", it is also necessarily one by a particular plaintiff; a cause of action arises when a particular right is vested in an identified person.

In Harpur v. Ariadne Australia Limited (unreported, 14 February 1989), Helman A.J. held that in joining a plaintiff under O.3 r.11, the joinder could be ordered to be treated as effective from a date earlier than the joinder order. No reference was made to Ketteman's case, which was, however, referred to in Lynch v. Keddell (No. 2). There, Macrossan C.J. with whom McPherson J. (as his Honour then was) agreed, said:

"Joinder of parties, when the intention of the joinder is carried through, will always involve adding new causes of action (13).

... ordinarily a defendant who is joined is treated as becoming a party only at the date of joinder and no relation back operates to make him a party as from the writ or the commencement of the proceedings to which he has been introduced as party: Ketteman v. Hansel Properties [1987] A.C. 189" (17).

It did not appear to be necessary in that case for the Court to decide whether the ordinary rule was subject to any discretionary exception, when a plaintiff is added under O.3 r.11.

In Grotherr v. Maritime Timbers Pty. Ltd. [1991] 2 Qd.R. 128 at 147 et seq, Lee J. discussed the point in terms which suggested that his Honour accepted that O.3 r.11 and O.3 r.13 raised the same question as to expiration of the limitation period. This is a question on which there is room for debate as the former does not and the latter does specifically contemplate backdating of the joinder.

In the absence of such a specific provision, the limitation statute applies to the party joined on the basis that the suit was brought by or against that party at the date of joinder, not the date of issue of the writ. That this is so seems clear enough from Ketteman's case; it is also implicit in the terms of O.3 r.13. The question is whether O.3 r.11 permits the making of an order of a kind which is expressly allowed by O.3 r.13: that is, one deeming the proceedings to have been brought at a date earlier than the date of joinder. The reference in O.3 r.11 to "such terms as may appear ... to be just" does not seem to be a very compelling ground on which to import such a power. On the other hand, the prevailing view in Queensland appears to have been that it is possible to join a plaintiff under O.3 r.11 on a basis similar to that permissible under O.3 r.13. Since there seems to be no good reason why the law should discriminate between the joinder of a plaintiff and joinder of a defendant for this purpose, we incline to think that it should be taken as settled that an order may be made on joinder of a plaintiff under O.3 r.11 of such a kind as to treat the joinder as effective from a date earlier than the date of the order, although not of course earlier than issue of the relevant writ. This may be done in "special or peculiar" circumstances and if it is done, the operation of the Limitation of Actions 1974 on the cause of action vested in the party newly joined is affected.

Here, the judge made no reference to the possibility of making an order to backdate the joinder, and appeared perhaps to assume that the limitation statute would necessarily be defeated by the very fact of joinder; that is not so, in our respectful opinion.

It would be a proper exercise of discretion, perhaps, to join a plaintiff without a backdating order after the limitation period had expired if it appeared possible that the time bar would not be pleaded. Here, the matter was argued on the assumption that the time point would be taken and that the question was whether joinder should be effected in such a way as to defeat the statute; that would require a special backdating order. It seems to us plain that there are no such circumstances as to justify an order of that kind. The case is simply one in which a natural person omitted to tell his solicitor that the damaged chattel the subject of a proposed suit was owned, not by him, but by a company he controlled. There is nothing special or peculiar about mistakes of that kind made by people controlling various companies and it does not appear to us that the Court should ordinarily treat such a mistake as justifying the making of an order designed to overcome what would otherwise be a time bar.

The appeal must be dismissed, with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 45 of 1992

Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice Ambrose

BETWEEN:

CHARLES REGINALD HAYWARD

(Plaintiff) Appellant

AND:

DARLING DOWNS AIRCRAFT SERVICES
PTY LTD trading as DALBY AIR

MAINTENANCE

(First Defendant) Respondent

AND:

PETER LARARD

(Second Defendant) Respondent

JUDGMENT OF PINCUS J.A. AND AMBROSE J.

Delivered the Fourth day of November 1992

MINUTE OF ORDER:	The appeal is dismissed with costs.
CATCHWORDS:	JOINDER OF PARTIES - Appeal from refusal to allow addition of plaintiff which is controlled by existing plaintiff and owner of subject matter of action - 7 years since date of loss - whether O.32 r.1 justified such order - whether O.3 r.1 appropriate - whether special or peculiar circumstances.
Counsel:	P. Keane Q.C., with him, D. Boughen for the Appellant M. White Q.C., with him, K.F. Boulton for the Respondents
Solicitors:	Sly & Weigall Cannan & Peterson for the Appellant Justin F. O'Sullivan & Edgar for the Respondents
Hearing Date(s):	3 September 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 45 of 1992

BETWEEN:

CHARLES REGINALD HAYWARD

(Plaintiff) Appellant

AND:

DARLING DOWNS AIRCRAFT SERVICES
PTY LTD trading as DALBY AIR

MAINTENANCE

(First Defendant) Respondent

AND:

PETER LARARD

(Second Defendant) Respondent

_______________________________________________

The President
Mr. Justice Pincus

Mr. Justice Ambrose

_______________________________________________

Judgment delivered on 4th November, 1992.
Reasons for judgment of Pincus J.A. and
Ambrose J. jointly and Fitzgerald P.
separately. All concurring as to the

proposed order.

_______________________________________________

APPEAL DISMISSED WITH COSTS.

_______________________________________________

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 45 of 1992

BETWEEN:

CHARLES REGINAL HAYWARD

(Plaintiff) Appellant

- and -

DARLING DOWNS AIRCRAFT SERVICES PTY. LTD.
trading as DALBY AIR MAINTENANCE

(First Defendant) Respondent

- and -

PETER LARARD

(Second Defendant) Respondent

JUDGMENT - FITZGERALD P.

Delivered the fourth day of November, 1992

I agree with the orders proposed. However, since my
views do not fully accord with the other members of the
Court, I will note my reasons briefly.

The appellant's application was originally made under material, O.3 rr.3, 11 and 13 respectively provide:

"3. When an action has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether an action has been commenced in the name of the right plaintiff, the Court or a Judge may order that any other person be substituted or added as plaintiff upon such terms as may be just.

...

11. ...

The Court or a Judge may, ... on such terms as may appear to the Court or Judge to be just order ... that the names of any persons who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added, either as plaintiffs or defendants.

... .

13. When a defendant is added or substituted, he shall, unless he waives such service, be served with the amended originating proceedings, or with notice in lieu of service, as the case may be, and the proceedings as against him shall, unless otherwise ordered, be deemed to have begun only on such service being effected.

. . . "

I agree that, looked at most favourably for the appellant, he cannot succeed under O.3 rr.3 or 11 unless "special or peculiar circumstances" are shown and that he failed to demonstrate such circumstances.

That being so, I would prefer not to express a concluded opinion that a plaintiff can be added or substituted under O.3 after the expiration of the material limitation period provided that special or peculiar circumstances are shown, or that further orders may be made in such circumstances to defeat the Limitation Act; for example, deeming the new plaintiff to have been added or substituted "at an earlier time when the statute was still running": Lynch v. Keddell (No.2) (1990) 1 Qd.R.10, 18.

In that case, which was criticised in other respects by the High Court in Bridge Shipping Pty. Ltd. v. Grand Shipping SA (1991) 173 CLR 231, the source of the power to backdate the effectiveness of the joinder was found in the words "unless otherwise ordered", in O.3 r.13. The correctness of that view is not especially obvious. Even if one starts with the assumption that a valid rule which empowers the Court to defeat the Limitation Act is possible, there are a number of difficulties to be surmounted. The material phrase in O.3 r.13, "unless otherwise ordered" appears not to be directed to the purpose for which it has been used but to the different issue concerning whether service must be effected before joinder is complete. Further, even if the view which has been adopted that backdating is possible can be reconciled with Ketteman v. Hansel Properties (1987) AC 189, it is questionable whether the generally expressed phrase "unless otherwise ordered" in O.3 r.13 should be construed as relating to a subject matter which is specifically provided for in O.32 r.1.

Finally, there is an additional factor to be considered in a proceeding such as this which involves an attempt to add a plaintiff. O.3 r.13, which is confined to the joinder of defendants, has no potential application. The only suggested basis upon which the Court could backdate the joinder of a plaintiff under O.3 is to be found in the words "upon such terms as may be just" (O.3 r.3) or "on such terms as may appear to the Court or Judge to be just (O.3 r.11). These phrases seem more apposite to the imposition of terms upon an applicant for joinder than to the existence of a power to make an order to defeat another party's statutory defence.

In the circumstances, I do not think that this Court ought, unnecessarily, commit itself on this occasion to a concluded view that there is power to backdate the joinder of either a plaintiff or a defendant under O.3.

The appellant also relied upon O.32 r.1 which, so far as presently material provides:

"1 (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 of 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."

I agree that these provisions do not authorize an order joining a new party not in substitution, but in addition, to the party initially named.

In the circumstances, it is unnecessary to consider other difficulties which the appellant might have faced if he had applied to "correct" his own name to the name of Scartwater, Even assuming that Bridge Shipping can be fully and automatically applied where the joinder concerns a plaintiff not a defendant, it is by no means clear that the appellant could have satisfied all the requirements of O.32 r.1(3). However, it is unnecessary to pursue these issues in the circumstances.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 45 of 1992

BETWEEN:

CHARLES REGINAL HAYWARD

(Plaintiff) Appellant

- and -

DARLING DOWNS AIRCRAFT SERVICES PTY. LTD.
trading as DALBY AIR MAINTENANCE

(First Defendant) Respondent

- and -

PETER LARARD

(Second Defendant) Respondent

The President
Mr Justice Pincus

Mr Justice Ambrose

Judgment of the Court delivered on the
fourth day of November, 1992

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 45 of 1992

Before the Court of Appeal
The President
Mr. Justice Pincus
Mr. Justice Ambrose

BETWEEN:

CHARLES REGINAL HAYWARD

(Plaintiff) Appellant

- and -

DARLING DOWNS AIRCRAFT SERVICES PTY. LTD.
trading as DALBY AIR MAINTENANCE

(First Defendant) Respondent

- and -

PETER LARARD

(Second Defendant) Respondent

JUDGMENT - FITZGERALD P.

Delivered the fourth day of November 1992

CATCHWORDS:	Joinder of parties. Appeal from refusal to allow addition of plaintiff which is controlled by existing plaintiff and owner of subject matter of action - 7 years since date of loss - whether O.32 r.1 justified such order - whether O.3 r.1 appropriate - whether special or peculiar circumstances.
Counsel:	Mr P. Keane Q.C. with him Mr D. Boughen for the Appellant
Mr M. White Q.C. with him Mr K.F. Boulton for the Respondents
Solicitors:	Sly & Weigall Cannan & Peterson for the Appellant
Graham Davies & Associates t/a for Justin O'Sullivan & Edgar, Dalby, for the Respondents
Hearing date:	03/09/92