Jiminez v Jayform Contracting Pty Ltd

[1992] QCA 59

IN THE COURT OF APPEAL	[1992] QCA 059
SUPREME COURT OF QUEENSLAND	C.A. No. 87 of 1991
BETWEEN:

LUIS JIMINEZ

(Plaintiff) Appellant

AND:

JAYFORM CONTRACTING PTY LIMITED

(Defendant) Respondent

JUDGMENT - DAVIES AND McPHERSON JJ.A.

This is an application for leave to appeal against a decision of a District Court judge given in chambers on 25 September 1991. Mr Jiminez, whom we will call throughout "the applicant", is the plaintiff in a District Court plaint in which he claims $200,000 damages for personal injury caused by the negligence or breach of statutory duty of the defendant who, it is alleged, was his employer. It does not seem to be in dispute that the applicant suffered severe injuries on 11 May 1988.

The decision of the District Court judge was one in which he refused an application that the name of Jayform Contracting Pty Limited be struck out as defendant, that Jayform Pty Ltd be joined as defendant in lieu of Jayform Contracting Pty. Limited, that the joinder of Jayform Pty Ltd take effect as and from 7 May 1991, and that the name of the defendant on the plaint be amended to Jayform Pty Ltd. The application was made pursuant to r.23 of the District Courts Rules, 1968 which is in the same terms as O.3 r.11 of the Rules of the Supreme Court.

Leave of this Court is necessary to appeal because the order made was not a final judgment; and such leave is not to be granted unless some important question of law or justice is involved: s. 92(2) of the The District Courts Act of 1967.

Order 70 r. 34 of the Rules of the Supreme Court provides:-

"34. A party appealing, either by leave or as of right from a judgment of a District Court shall institute an appeal in accordance with Order 70 rule 2 within the time prescribed in rule 334 of the District Court Rules."

The decision of the Full Court of this Court in Johns v. Johns (1988) 1 Qd.R. 138 establishes, correctly in our view, that O. 70 r. 34, on its proper construction, requires that leave be obtained before the appeal is instituted in accordance with O. 70 r. 2. The applicant seeks that leave which we would grant because, in our view, there is an important question of justice involved here. For reasons which we will develop later, the applicant could have made an application to the District Court Judge under O. 32 r. 1(3) of the Rules of the Supreme Court because that rule is applied by r. 4 of the District Courts Rules, 1968; and if he had done so the District Court Judge ought to have granted it.

If the applicant is unable to amend his plaint in the way in which he seeks to do so, his cause of action against his employer in respect of his serious injuries and disabilities will be lost. At best for him, if leave is not granted, he will be obliged to return to the District Court to make an application under that rule with consequent further delay and expense. Because we think that the applicant seems so far to have been the victim of other people's errors, in consequence of which there has already been substantial delay, we think it would be most unjust to compel him to take that course, with a possible risk of failure, when the interests of justice require that his cause of action be brought to trial as early as possible.

However, if we grant leave the applicant would be out of time to institute his appeal which, by r. 334 of the District Courts Rules, 1968, must be instituted by filing a notice of appeal within 28 days of the date of judgment. Rule 375 of those Rules allows a court or a judge to enlarge time. The court or a judge referred to is a District Court or District Court Judge: The District Courts Act of 1967, s. 4. So a District Court Judge could have extended the time for filing the notice of appeal and could still do so: Beggs v. Mellor (1969) Q.W.N. 44.

In Beggs v. Mellor the court also said, at p. 97:-

"As the power to extend time is given to the District Court Judge we are of the opinion that this Court has no power to extend the time at least until the matter has been heard and determined by the District Court Judge."

However, when that case was decided O. 70 r. 34 was in the following form:-

"34. In an appeal from a District Court the appellant shall set the appeal down to be heard at the first Sitting of the Full Court appointed to be held after the expiration of fourteen (14) days, or, if the appeal is from a District Court holden within the Central District or Northern District, after the expiration of twenty-one (21) days, from the day on which the Notice of Appeal is served on the Registrar of the District Court or within such extended time as the Court may allow."

In 1984 it was put into the form in which it now appears.
Also in 1984 r. 334 of the District Courts Rules 1968 was
amended to bring it into line with the new O. 70 r. 34 by
providing that, within the time limited, the party shall
"file a notice of appeal in accordance with the Rules of the
Supreme Court".

So in their present form both r. 334 and O. 70 r. 34 require, for an appeal to this Court, the filing of a notice of appeal in accordance with O. 70 r. 2. Each rule refers to a time limit, so that both limit the time within which that notice may be filed. It follows, in our view, that, though an extension may be granted by a District Court Judge under r. 375, such an extension may also be granted by a Supreme Court Judge under O. 90 r. 6. The dictum of Connolly J. in Traj v. Cannery Board (1990) 1 Qd.R. 494 at 495.10 and the decision of Master White in Jadeborough Pty Ltd v. Hudson (1990) 2 Qd.R. 133 to the contrary are, in our opinion, wrong.

We would therefore grant leave to appeal, extend the time for filing a notice of appeal to today, and treat the notice of appeal already filed as filed today pursuant to that leave.

In this Court the applicant sought, in the alternative to his argument under r. 23 of the District Court Rules, to argue that this was a case in which, if the action were in the Supreme Court, O.32 r.1(3) would apply. Order 32 is the rule providing for amendment of the writ of summons or any pleading or other proceeding. Sub-rules (1), (2) and (3) of that rule provide:-

"(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 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 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."

The applicant argues that his application before the District Court Judge was one merely to correct the name of a party and that, notwithstanding that there is no rule in the above terms in the District Courts Rules, 1968, r.4 of those rules would apply the above rules. Rule 4(a) of the District Courts Rules, 1968 provides:-

"Where the Rules of the Supreme Court provide for a remedy, procedure, or power which may be granted, applied, or exercised whether before, at, or after judgment in the course of proceedings of a type which may be heard and determined in a District Court and such remedy, procedure, or power is not provided for in these Rules, the Rules of the Supreme Court relating to such remedy, procedure, or power shall, with all the necessary adaptation, apply to such proceedings in a District Court."

It was argued faintly by the respondent that the presence of r. 23 and of a power to amend in r. 108 indicated that such a procedure was provided by the District Court Rules, but there is no substance in that argument. In our view O. 32 r. 1 applies in the District Court.

The application before the District Court Judge was not in form an application to correct the name of a party and it was submitted by the respondent, and not contested by the applicant, that this question was not argued before the District Court Judge. However, it was not contended that there was any more than a theoretical possibility that if this question had then been argued either the respondent or Jayform Pty Ltd could have adduced any relevant evidence which it did not adduce before the District Court Judge. We doubt that there was even that possibility. A Mr Diekman, one of the respondent's directors, had been the applicant's foreman. The companies were clearly related. The plaint which was served on the respondent alleged in some detail the circumstances of the applicant's accident. And in any event the compulsory insurer was the Workers' Compensation Board.

In Bridge Shipping Pty Ltd v. Grand Shipping SA (1991) 66 A.L.J.R. 76, the High Court considered the construction of a rule of the Victorian Supreme Court which, though in terms different from O.32 r.1(3), was considered by the court to have the same effect. The court concluded that, under that rule, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name, but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name: see at 88 col. 1B, 77 col. 1B. Clearly, the applicant's mistake in the present case falls into one or other of those categories and consequently the appeal should be allowed.

We agree with the view, expressed by the Full Court in Lynch v. Keddell (No. 2) (1990) 1 Qd.R. 10, that where an order is made allowing joinder in circumstances such as this, an order should also be made that proceedings should be deemed to have been commenced against the new defendant at a time when the limitation period was still running. Accordingly, we would make orders that:-

(a)  Jayform Pty Ltd be substituted for Jayform Contracting Pty Ltd as defendant in this action;

(b)  the substitution of Jayform Pty Ltd as defendant in these proceedings take effect on and from 7 May 1991.

The appellant should pay the respondent's costs here and below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Before the Court of Appeal
Mr Justice Davies
Mr Justice McPherson

Mr Justice Shepherdson

App. No. 87 of 1991

BETWEEN:

LUIS JIMINEZ (Plaintiff) Appellant

AND:

JAYFORM CONTRACTING PTY LIMITED

(Defendant) Respondent

JUDGMENT - DAVIES AND McPHERSON JJ.A.

Delivered the 10th day of April 1992

MINUTES OF ORDER: 1. Grant leave to appeal.

2.   Extend the time for filing a notice of appeal to today.

3.   Treat the notice of appeal already filed as filed today pursuant to that leave.

4.   Allow the appeal. Order below set aside.

5.   Order that:

(a)	Jayform Pty Ltd be substituted for Jayform Contracting Pty Ltd as defendant in this action;
(b)	the substitution of Jayform Pty Ltd as defendant in these proceedings take effect on and from 7 May 1991.

6.   The appellant pay the respondent's costs, to be taxed, of the appeal and of the proceedings below.

CATCHWORDS:

Counsel: Mr W. Campbell for the Appellant

Mr A. Lyons for the Respondent

Solicitors:	Mr Bruce S. Dulley as town agent for Messrs Walker Pender for the Appellant Messrs McCullough Robertson for the Respondent
Hearing date(s):	16 March 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

App. No. 87 of 1991

BETWEEN:

LUIS JIMINEZ (Plaintiff) Appellant

AND:

JAYFORM CONTRACTING PTY LIMITED

(Defendant) Respondent

_______________________________________________________

DAVIES JA
MCPHERSON JA
SHEPHERDSON J

_______________________________________________________

Joint reasons of Davies JA and McPherson JA and reasons
of Shepherdson J, concurring as to the order made,
delivered on 10 April 1992.

_______________________________________________________

"1. GRANT LEAVE TO APPEAL.

2.    EXTEND THE TIME FOR FILING A NOTICE OF APPEAL TO TODAY.

3.   TREAT THE NOTICE OF APPEAL ALREADY FILED AS FILED TODAY PURSUANT TO THAT LEAVE.

4.    ALLOW THE APPEAL. SET ASIDE ORDER BELOW.

5. ORDER THAT:
(A) JAYFORM PTY LTD BE SUBSTITUTED FOR

JAYFORM CONTRACTING PTY LTD AS DEFENDANT
IN THIS ACTION;

(B) THE SUBSTITUTION OF JAYFORM PTY LTD AS DEFENDANT IN THESE PROCEEDINGS TAKE EFFECT ON AND FROM 7 MAY 1991.

6.   THE APPELLANT PAY THE RESPONDENT'S COSTS, TO BE TAXED, OF THE APPEAL AND OF THE PROCEEDINGS BELOW."