Henderson v Shell Chemical (Australasia) P/L & ANR No. Scgrg-99-678

HENDERSON V SHELL CHEMICAL (AUSTRALASIA)
PTY LTD & ANOR

[2000] SASC 94

JUDGE BURLEY. The plaintiff has applied for an order that “the Plaintiff be given leave to substitute Montell Australia Pty Ltd as the first defendant in the within action pursuant to Rules 3, 28 and 53”. In order to understand the application it is necessary to set out the background to it.
In this action the plaintiff seeks to recover from the defendant damages for alleged personal injury sustained when he was exposed to a substance called Aldrex 60. He has purported to sue the first defendant as the manufacturer and distributor of the substance. The plaintiff has described the defendant in the summons as “Shell Chemical (Australasia) Pty Ltd”. The entity which entered an appearance is Shell Chemicals (Australasia) Trading Pty Ltd (ACN 065 432 680) which I shall refer to as “Trading”. That company asserted in the appearance that it had been wrongly described as “Shell Chemical (Australasia) Pty Ltd”. It is common ground that there never has been a company called “Shell Chemical (Australasia) Pty Ltd”.
If the plaintiff had intended to sue Shell Chemicals (Australasia) Trading Pty Ltd, it is probable that the plaintiff would be permitted to amend the name of the defendant. However, it now transpires that the entity that the plaintiff intended to sue is not the entity which entered an appearance. The plaintiff says that the entity he should have named in the summons is Shell Chemical (Australia) Pty Ltd. Mr Blumberg, counsel for the plaintiff, contended that the plaintiff is entitled to have the name of the first defendant amended by deleting the word “Australasia” and substituting the word “Australia”.
It is common ground that Shell Chemical (Australia) Pty Ltd has changed its name to Montell Australia Pty Ltd. Mr Blumberg argued that the plaintiff is entitled to an additional amendment to reflect the change of name.
The description of the first defendant in the summons has been explained by the plaintiff’s former solicitor, Mr Wellington, in his affidavit sworn on 10 February 2000. He said:-
“10... I cannot now accurately recall all of the papers in the file to which I had regard when I settled the Statement of Claim. It was however my intention to sue that company which had manufactured or supplied the product which had allegedly been responsible for the personal injuries suffered by Mr Henderson.
11.... It is my belief that in settling the proceedings I had regard to a company description printed on a label which had been provided to Mr Jackson as part of his investigations and which I believed was a label similar to that which would have been attached to the chemical used by Mr Henderson at the time he sustained injury. The name on the label is Shell Chemical (Australia) Pty Ltd.
12.... I believe that in the course of settling the Statement of Claim I also had regard to correspondence passing between Wallmans and Shell Chemicals (Australasia) Trading Pty Ltd of 1 Spring Street Melbourne. I adopted that address as the address of the first defendant when I drew the Summons in the within proceedings.
13.... On or about 13 August 1999 I wrote to Shell Chemicals (Australasia) Trading Pty Ltd enquiring whether that company would nominate solicitors to accept service. At the time of writing that letter I was aware that the name of the company to which that letter was addressed, differed from the name which I had sued in the proceedings. It was my belief at that time that the company to which I had written was the successor of the company which I had sued.
14.... A copy of the letter of 13 August is exhibited and marked ‘AJB4’ to the Affidavit of Anna Jacqueline Baillie sworn 4 November 1999 and filed herein.”
The affidavit of Ms Baillie was filed by Trading. In her affidavit Ms Baillie states that Trading was not incorporated until many years after 1978 (the year during which the plaintiff was allegedly exposed to the substance) and accordingly Trading could not be liable to the plaintiff.
Exhibit AJB1 to Ms Baillie’s affidavit is a letter from Wallmans to Trading dated 9 September 1998. In the first paragraph it is stated:-
“We act for Mr Henderson who developed Goodpasture’s Syndrome as a result of his exposure to the insecticide Aldrin manufactured and distributed by Shell Chemical (Australia) Pty Ltd ...”
The summons was issued on 11 June 1999. It is apparent from AJB1 that nine months prior to the issue of proceedings the plaintiff’s then solicitors were aware of the correct name of the manufacturer and distributor of the substance. Nevertheless, correspondence was directed to Trading.
Mr Jackson was the author of AJB1 and explained in his affidavit of 14 February 2000 why he wrote to Trading rather than Shell Chemical (Australia) Pty Ltd. He said:-
“11... On 9 September 1998 I wrote to Shell Chemicals (Australasia) Trading Pty Ltd advising of a potential claim against Shell Chemical (Australia) Pty Ltd of William Street Melbourne. The purpose of my letter was to put the responsible company on notice of a potential claim against that company which had manufactured and distributed the product. The principal purpose of the letter was to ensure that the responsible company did not destroy documents.
12.... I believe that I wrote to Shell Chemicals (Australasia) Trading Pty Ltd as I had identified that company from the telephone book as being the likely company associated with distribution and manufacture of Shell Chemicals. I could not find any reference in the telephone book to Shell Chemical (Australia) Pty Ltd.”
In August 1999 Mr Wellington wrote to Trading requesting that solicitors be nominated for the purpose of accepting service of the proceedings which had been issued. By letter dated 27 August 1999 Trading responded by letter, the relevant parts of which are as follows:-
“I advise that Shell Chemicals (Australasia) Trading Pty Ltd has engaged Finlaysons of 81 Flinders Street Adelaide to act as its South Australian solicitors in the proceedings against it issued on behalf of your client in the Supreme Court of South Australia.
Finlaysons have been instructed to accept service on behalf of Shell Chemicals (Australasia) Trading Pty Ltd, and accordingly the proceedings which have been issued by you against that company may be served on Finlaysons at its office.”
It is to be noted that the author of the letter of 27 August 1999 assumed that Trading had been named as a defendant in the proceedings.
By letter dated 7 September 1999 Mr Wellington wrote to Finlaysons as follows:-
“We have been advised by the first defendant that it has given your firm instructions to accept service of the within proceedings and, accordingly, we enclose herewith true copies of the Summons and Statement of Claim issued in this matter.
Obviously, your client will need to file an Appearance. We do advise that we are presently seeking further instructions as to two matters, namely the amendment of the name of the first defendant as it appears that the word ‘Trading’ was omitted from the Court documents and, secondly to add a third defendant. We expect to have those instructions completed within the next couple of weeks and, if so, we will then give you formal notice of our intentions in that regard. If we do make application to join a further defendant, we will, at the same time, be likely to be instructed to apply to the Court for an Order delaying the filing of Defences until those amendments have been effected.”
Apart from writing to Trading in the first place, this is the first indication by the plaintiff’s then solicitors that the name of the first defendant in the summons was incorrect because the word “Trading” had been left out. This contradicts what Mr Jackson has stated in the first letter to Trading, namely that the plaintiff held Shell Chemical (Australia) Pty Ltd responsible.
By letter dated 9 September 1999 Finlaysons responded as follows:-
“We confirm that Finlaysons has instructions to accept service on behalf of Shell Chemicals (Australasia) Trading Pty Limited (ACN 065 432 680). We understand that you wrote three letters dated 9 September 1998, 3 November 1998 and 13 August 1999 to that company asserting that your client had a claim against it, and that it recently wrote to you advising that Finlaysons have authority to accept service of proceedings on its behalf.
However, the summons and statement of claim you have provided to us do not make a claim against Shell Chemicals (Australasia) Trading Pty Limited, but rather against Shell Chemical (Australasia) Pty Limited. We are instructed that no company by that name exists, and obviously we are unable to accept service on behalf of a non-existent company.
However, by reason of the reference in your letter to the (presumably accidental) omission of the word ‘Trading’ from the Court documents and to seeking instructions to amend, we presume that Shell Chemicals (Australasia) Pty Limited is the company which your client intends to sue.
We accordingly suggest that you obtain from your client the amendment instructions you are seeking and then provide us with a written undertaking that in due course, you will amend, either pursuant to rule 53.01 or by leave of the Court at the first directions hearing in this matter, to correct the name of the first defendant to Shell Chemicals (Australasia) Trading Pty Limited.
On receipt of such an undertaking from you, we will accept service, and in due course, will file an appearance in the name of ‘Shell Chemicals (Australasia) Trading Pty Limited incorrectly described in the summons as Shell Chemical (Australasia) Pty Limited’.”
By letter dated 10 September 1999 Wallmans replied as follows:-
“We do have instructions to provide you with an undertaking that in due course, our client will amend to correct the name of the first defendant to Shell Chemicals (Australasia) Trading Pty Ltd. Again, we repeat that the company was accidentally misdescribed in the Court documents and it has always been our client’s intention to proceed against the Company for whom you act.”
Such was Mr Wellington’s understanding of the position but it does not take account of the initial statement made by Mr Jackson that the plaintiff understood the distributor and manufacturer of the substance to be Shell Chemical (Australia) Pty Ltd. Nevertheless, the undertaking having been given, Finlaysons proceeded to accept service on behalf of Shell Chemicals (Australasia) Trading Pty Ltd.
Thus, service was completed by 13 September 1999 and on 1 October 1999 the defendants’ solicitors advised the plaintiff’s solicitors that they had sued the wrong defendant. A copy of the relevant company search was enclosed and that shows that the search was obtained on 1 October 1999. Had the search been undertaken by either firm of solicitors when contact was first made with Trading by Mr Jackson prior to the commencement of proceedings, the subsequent confusion would not have arisen.
The proceedings were not commenced within three years of the occurrence of the alleged tort on the part of the defendants. The plaintiff in the statement of claim has invoked the provisions of Section 48 of the Limitation of Actions Act and has sought an extension of time for the bringing of the action based on the ascertainment of new facts. These proceedings were commenced within the one year of the ascertainment of the new facts. That one year period has now expired. Consequently, if the reality of the order sought by the plaintiff is the joinder of a defendant, the plaintiff is clearly out of time, but if the order is one for amendment, the plaintiff’s position with regard to an application for an extension of the relevant period of limitation is preserved.
Mistakes of the kind made by the plaintiff’s former solicitors prior to the institution of these proceedings potentially fall into one of two categories: a mere misnomer which may be amended and to which the rule in Weldon v Neal (1887) 19 QBD 394 does not apply; or, the wrong party has been joined and the reality of the application is substitution of a new party. In the latter case, the rule in Weldon v Neal applies unless the applicant can successfully rely upon the partial abrogation of that rule contained in SCR 53.03. The relevant part of SCR 53.03 is as follows:
“Where an application for leave to amend is made after any relevant period of limitation has expired, the Court may nevertheless grant leave on such terms as it thinks fit:
(a).... to correct the name of a party, notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake was genuine and not intended to mislead; ...”
On this application it is necessary to decide whether the mistake made by the plaintiff’s former solicitors was a mere misnomer because that decision in turn determines whether it is necessary to invoke the provisions of SCR 53.03.
In J Robertson & Co Limited (In Liquidation) v Ferguson Transformers Pty Limited and Others (1970) 44 ALJR 441, Walsh J, sitting as a single Judge in the original jurisdiction of the High Court, had to deal with an application which purported to be one for amendment of the name of the defendant in the Writ and statement of claim. Having referred to Weldon v Neal, his Honour said (at 443):
“There are decisions that a party ought not to be added by amendment where this would allow the defence of the Statute of Limitations to be defeated (see Mabro v. Eagle Star and British Dominions Insurance Co. Ltd., [1932] 1 K.B. 485) but it has been decided that this rule does not stand in the way of an amendment in the description of a defendant, where there has been a mere misnomer and the amendment is not really the substitution of one defendant for another. See Whittam v. W.J. Daniel & Co. Ltd., [1962] 1 Q.B. 271. Several authorities dealing with this problem were cited to me. After consideration of them and of the facts in this case I have come to the conclusion that in so far as the distinction between substituting a party on the one hand and correcting a misnomer on the other may be relevant in deciding whether an amendment should be allowed or refused, it is proper to treat this as a case of misnomer. It has been held, in my opinion correctly, that a misdescription of a corporate body is capable of being regarded as a mere misnomer and of being corrected by amendment in the same way as the misnomer of a natural person (see Whittam v. W.J. Daniel & Co. Ltd. (supra) and Harstoff v. Allen, [1967] Qd. R. 211). It must be acknowledged, however, that when, as in the present case, there were two companies in existence to which the writ could refer, it is more difficult to regard the name of one of them, set out in the writ, as being a misnomer, than it would be if there were no other entity in existence than the one to which the writ was intended to refer. The importance of this consideration has been recognized in the cases but in my opinion it has not been laid down that it is decisive. In Beardmore Motors Ltd. v. Birch Bros. (Properties) Ltd., [1959] Ch. 298, at p. 304, Harman J. based his decision not solely on the fact that there were two existing companies but also on the state of mind of the applicants who, he said, were not under any misapprehension. Again in Davies v. Elsby Bros. Ltd., [1961] 1 W.L.R. 170, at p. 176, Devlin L.J. treated the existence of another entity to which the description in the writ might refer as a factor which must operate in the mind of the recipient of a document. He did not refer to it as a conclusive fact. On the same page of the report his Lordship enunciated a test for deciding the question of misnomer. He said:
‘I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”, then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.’ ”
The test is objective. Given that in the first letter from Mr Jackson, Shell Chemical (Australia) Pty Ltd was said to be the responsible party and given that, when the copy summons and statement of claim were provided for service the first defendant was described as Shell Chemical (Australasia) Pty Ltd, a reasonable person would form the view that the plaintiff must have meant to refer to Shell Chemical (Australia) Pty Ltd rather than the named defendant. But, I infer, it seems as if the original reference in Mr Jackson’s first letter to Shell Chemical (Australia) Pty Ltd was overlooked by both parties and this was possibly because the initial letter and subsequent correspondence was addressed to Trading apparently in the mistaken belief that Trading was the successor to Shell Chemical (Australia) Pty Ltd.
The intentions of the various solicitors who acted for the plaintiff with regard to the commencement of the proceedings and joinder of defendants need to be considered. Mr Wellington, after the issue of the proceedings, came to the view that the relevant intention was to join Trading as the defendant. However, the person who prepared the draft pleadings, Mr Jackson, had prior to the issue of proceedings, said in the initial letter to Trading that Shell Chemical (Australia) Pty Ltd was the responsible party. When the proceedings were issued, the word “Australasia” was mistakenly inserted in the defendant’s name instead of “Australia”. Confusion arose because Mr Jackson wrote to Trading rather than to Shell Chemical (Australia) Pty Ltd. He incorrectly assumed that the latter was the successor to the former. Next Mr Wellington incorrectly formed the view after the issue of the summons that the mistake in relation to the first defendant’s name was that the word “Chemical” should have been in the plural and that the word “Trading” had been left out of the name. It is not clear what the intention of either of Mr Jackson or Mr Wellington was at the time of the issue of the proceedings because the draft statement of claim (and I assume the draft summons) has not been retained. The respective independent recollections of each of them does not allow for a clear statement in that regard.
I doubt that the test propounded by Devlin LJ in Davies v Elsby Bros (as referred to by Walsh J in J Robertson & Co Limited) can deal adequately with the fact situation with which I have to deal. In summary, the fact situation is that at the outset, Shell Chemical (Australia) Pty Ltd was identified as the manufacturer and distributor of the substance to which the plaintiff was exposed. The plaintiff’s solicitors then became confused as to the correct description of the party allegedly responsible. This confusion could have been removed by a company search performed either by the plaintiff’s solicitors or the solicitors who then acted for Trading. Neither of the solicitors conducted such a search. It was not until 1 October that Trading’s solicitors conducted the search and found that Trading did not come into existence until many years after the time at which the plaintiff was allegedly exposed to the relevant substance.
If there had been no dealings between the solicitors with regard to an acceptance of service, and if the proceedings had been served upon the first defendant by delivering the same to a registered office, the recipient would have observed that Shell Chemical (Australasia) Pty Ltd was named. A search to ascertain what company had been joined would have revealed the non-existence of such a company. It would also have revealed the existence of the company Shell Chemical (Australia) Pty Ltd. In those bare circumstances it is quite conceivable that the appropriate officer of the Shell Group, acting reasonably, would have formed the view that the plaintiff meant to join Shell Chemical (Australia) Pty Ltd particularly if records available to that officer also disclosed that in 1978, that company was the manufacturer and distributor of the substance. Such an analysis correctly emphasises the significance of when the mistake was made, ie at the time of the issue of the summons. I therefore do not think the fact that, after the proceedings were commenced, there were dealings between solicitors relating to acceptance of service should have a bearing upon the way in which the relevant events are to be characterised. The correspondence which subsequently took place between the parties tends to obscure the fact that Mr Jackson had originally ascertained that Shell Chemical (Australia) Pty Ltd was the entity which the plaintiff held responsible for the injury he sustained.

In the above circumstances I think that the mistake that has been made is correctly characterised as a misnomer rather than a failure to join the correct defendant. In Mr Jackson’s original letter notifying of the intended claim, the correct defendant is named in the first paragraph of the letter. It is very close to what subsequently was included in the summons lodged at Court for issue. To correct the mistake, “Australia” needs to be substituted for “Australasia”. That, in my view, is clearly a case where the name is corrected by amendment rather than a new party being joined. The fact that Finlaysons subsequently accepted service because of Mr Wellington’s assurance that the name was to be changed to Trading’s name does not detract from this conclusion because this occurred after the issue of the summons whereas the mistake as to naming the defendant took place prior to the issue of the summons.
If I am wrong in my view that there has merely been a misnomer, I need to consider whether SCR 53.03(a) applies. That provision partially abrogates the rule in Weldon v Neal. It permits an amendment which has the affect of joining a new party where the mistake was genuine and was not intended to mislead. In my view, the plaintiff comes within these requirements. A genuine mistake occurred even though it arose, at least in part, from carelessness: Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703. There was no intention to mislead. The Rule permits the amendment to be made without the plaintiff being subject to a plea that a relevant limitation period has expired. Thus, where the Rule applies, no further application for an extension of the limitation period needs to be made because the amendment “relates back” to the date of the issue of the summons: Brook v Flinders University (1989) 47 SASR 119 at 122.
For the above reasons I grant leave to the plaintiff to amend the name of the first defendant by deleting the word “Australasia” and substituting the word “Australia”. Because Shell Chemical (Australia) Pty Ltd has changed its name to Montell Australia Pty Ltd, I give further leave to the plaintiff to amend the description of the first defendant by deleting the name “Shell Chemical (Australia) Pty Ltd” and substituting the name “Montell (Australia) Pty Ltd”.
I will hear the parties as to costs and as to what orders should be made on the first defendant’s application for dismissal of the proceedings against it.

[2000] SASC 94

13 April 2000