Latchman v Maybo Limited - [2023] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LATCHMAN -v- MAYBO LIMITED [2023] WADC 17
CORAM:   BOWDEN DCJ
HEARD:   14 FEBRUARY 2023
DELIVERED          :   24 FEBRUARY 2023
FILE NO/S:   CIV 2149 of 2021
BETWEEN:   KRISHNA LATCHMAN
Plaintiff
AND
MAYBO LIMITED
Defendant

Catchwords:

Application to extend time and amend writ to add additional defendants - Limitation Act s 38 - Limitation Act s 39 - Order 21 r 5 Rules of the Supreme Court

Legislation:

Business Name Registration Act 2001 (Cth)
Corporations Act 2001 (Cth), s 124, s 601AA
Limitation Act 2005 (WA), s 38
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Leave granted in respect of s 38 and s 39 of the Limitation Act in relation to one of the proposed defendants
Leave refused in respect of second proposed defendant
Application under O 21 r 5 Rules of the Supreme Court dismissed

Representation:

Counsel:

Plaintiff	:	Mr D J Mezger
Defendant	:	Mr C P K Russell

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
Defendant	:	Wotton & Kearney

Case(s) referred to in decision(s):

Alinta 2000 Ltd v Petkov [2012] WASCA 258
AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Charlton v The WA Country Health Service [2017] WASC 223
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139
Cunningham v Moorevest Pty Ltd [2016] WADC 38
Galloway v Minister for Health [No 2] [2015] WADC 119
Shire of Toodyay v Merrick [2016] WASC 29
Smith v High Energy Service Pty Ltd [2020] WADC 119

BOWDEN DCJ:

The plaintiff appeals from the decision by Deputy Registrar Harman of 11 October 2022 dismissing their chamber summons of 2 June 2022.
An appeal from a deputy registrar to a judge is by way of a new hearing of the matter.
The appeal is to be treated as if the matter is before the judge for the first time. There is no requirement to show that the deputy registrar made an error in law or in fact in the decision under appeal.

The orders sought

The orders sought by the plaintiff are that:
1.The court extend the time in which the plaintiff's action can be commenced against Harvey Warwick Group Pty Ltd and Tostevin Pty Ltd to 31 March 2023.
2.The plaintiff have leave to amend his writ of summons dated 17 June 2021 by adding Harvey Warwick Group Pty Ltd as a second defendant in this action, and have leave to amend the indorsement of claim accordingly.
3.The plaintiff have leave to amend his writ of summons dated 17 June 2021 by adding Tostevin Pty Ltd as a third defendant in this action and have leave to amend the indorsement of claim accordingly.
4.Harvey Warwick Group Pty Ltd pay the plaintiff's costs of the chamber summons and this appeal on an indemnity basis or alternatively on a party/party basis to be taxed if not agreed.

Matters for determination

There are three matters to be determined in this appeal:
1.Was the failure to commence proceedings against the proposed defendants attributable to any 'improper conduct' on the part of the proposed defendants within s 38 of the Limitation Act 2005 (WA) (hereinafter referred to as LA 2005).

2.Was there reasonable enquiry made by the plaintiff to establish the identity of the person whose conduct was attributable to the plaintiff's injury within s 39 of the LA 2005.

3.Was the naming of the defendant in the writ of summons a 'misnomer' for the purposes of O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (hereinafter referred to as RSC).

The background

There are some unusual aspects about this litigation. The plaintiff commenced proceedings against the defendant, a company incorporated in England. The defendant's then solicitors filed an appearance for the defendant and later claimed that the defendant is not an entity that exists in Australia and did not have the legal capacity to be sued as it did not exist pursuant to s 124 and s 601AA of the Corporations Act 2001 (Cth).
After the limitation period expired the defendant's then solicitors advised the plaintiff's solicitors that the correct name of the defendant was Harvey Warwick Group Pty Ltd as trustee for the F & N Trust which trades as Maybo Australia and that they acted for that company. They subsequently advised the plaintiff that they would oppose the application to join Harvey Warwick Group Pty Ltd as the defendant.
The plaintiff's solicitors advised the defendant's solicitors in March 2022 that the plaintiff did not intend to make any application to the District Court to replace the defendant saying that as far as the plaintiff was concerned, they had sued the correct entity. (Mr Grunder's affidavit 21 April 2022).
In any event the defendant's former solicitors continue to act for the proposed defendant's solicitors and the plaintiff's solicitors made the application.
The plaintiff was a full‑time nurse employed by the WA Country Health Services (WACHS) at the Broome Hospital who on 19 June 2018 attended a training course organised by his employer and allegedly suffered an injury at that course as the result of the alleged breach of duty by the existing defendant.
It is not disputed that by correspondence dated 7 December 2017 WACHS requested a quote for a training course from Mr Neil Warwick, managing director, Maybo Australia and New Zealand.
The quote provided to WACHS was by email headed Maybo which gave a PO Box in New South Wales, a mobile telephone number, a reference to a website of Maybo.com.au, and has 'Business registered in South Australia' and an ABN number on it. That ABN was registered to Harvey Warwick Group Pty Ltd.
In February 2018, WACHS accepted the quote from Maybo and advised Maybo that 'Acceptance of your Offer constitutes an agreement between Maybo Australia and New Zealand [ABN 64 274 649 674] and WA Country Health Service'. A search of that ABN, which is not the ABN typed on the quote previously referred to, shows the controlling entity as 'The trustee for the F & N Trust'.

The first issue

Was the failure to commence proceedings against the proposed defendants attributable to any 'improper conduct' on the part of the proposed defendants within s 38 of the LA 2005.
Section 38 of the LA 2005 provides:
(1)A plaintiff may apply to a court for leave to commence an action on a cause of action even though the limitation period provided for under this Act has expired.
(2)On an application a court may extend the time in which the action can be commenced up to 3 years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable.
There are two questions for consideration was there 'improper conduct of the defendant' and was the failure to commence the action 'attributable' to that improper conduct.

Improper conduct

The meaning of the words 'improper conduct' in s 38 of the LA 2005 has been the subject of judicial comment over the years.
In Charlton v The WA Country Health Service [2017] WASC 223 Master Sanderson observed that 'conduct can be improper without there being some form of subjective intent on the part of the persons whose conduct is impugned'. Master Sanderson further observed that the use of the word 'other' tended to suggest dishonesty.
In Shire of Toodyay v Merrick [2016] WASC 29 Acting Master Gething (as he then was) stated that in his view conduct would be otherwise improper for the purposes of s 38(2) of the LA 2005 if it breaches the standard of conduct that would be expected of a person in the defendant's position. This was to be determined objectively and it did not depend on the defendant having consciousness of the impropriety. Acting Master Gething considered that in the context in which the words 'other improper conduct' was used an element of moral turpitude such as something in the nature of a particularly egregious breach of contract, duty of care or fiduciary duty was required.
In Cunningham v Moorevest Pty Ltd [2016] WADC 38 Goetze J found that given the natural and ordinary meaning of the words 'improper' and 'conduct' that a body corporation which conducted business contrary to law neither registering a business name nor lodging a statement that it has commenced to carry on business under the name in place of the company to which the name is already registered was guilty of improper conduct and said that the company's failure to comply with the business names legislation must amount to improper conduct.
In Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5 Justice Tottle referred to the above cases and agreed with Acting Master Gething's conclusion that conduct would be improper for the purposes of s 38(2) of the LA 2005 if that conduct breached the standard of conduct that would be expected of a person in the defendant's position determined objectively and it did not depend on the defendant having a consciousness of that impropriety. However, Justice Tottle did not agree with the conclusion that there was some element of moral turpitude required beyond a mere breach of contract, duty of care or fiduciary duty.
In my view, with respect, Justice Tottle's view is correct and improper conduct within s 38(2) of the LA 2005 is a breach of the standards of conduct that would be expected of a person in the defendant's position determine objectively and there is no requirement that the defendant had a consciousness of the impropriety nor an element of moral turpitude.
It is not in dispute that prior to 29 September 2021 neither Maybo, Maybo Australia or Maybo Australia and New Zealand were registered on the business names registry in breach of the Business Name Registration Act 2011 (Cth) which was the applicable law for business names in New South Wales. The names were not registered until after the limitation period had expired. Pursuant to the relevant legislation it was an offence to carry on a business under a name if the name was not registered to the entity as a business name on the business names register.
I find the improper conduct on behalf of the proposed defendant is that at that time, on the admission of the then defendant's and proposed defendant's solicitor (Mr Grunder's affidavit of 21 April 2022, par 11), Harvey Warwick Group Pty Ltd were the trustee for the F & N Trust and traded as Maybo Australia and the training business known as Maybo, Maybo Australia and Maybo Australia and New Zealand were being operated by them and that was the entity that contracted with the plaintiff's employer to provide the training course. The defendant's then solicitors also advised that Tostevin Pty Ltd is a related entity but had no operational involvement in the business and only exists for financial purpose. This information was first conveyed to the plaintiff's solicitors in January 2022 after the statute of limitations had expired.

I find that the business names Maybo, Maybo Australia and Maybo Australia and New Zealand should have been registered and Harvey Warwick Group Pty Ltd identified as the controlling entity. The failure to do so meant that the plaintiff was deprived of the knowledge that Harvey Warwick Group Pty Ltd was the trustee for the F & N Trust trading as Maybo Australia and was the operator of Maybo Australia and New Zealand which the defendant's then solicitors say is the correct entity.
I find this constitutes improper conduct being a breach of the standards of conduct that would be expected of a person in the proposed defendant's position determine objectively.

Was the failure to commence the action attributable to the improper conduct of the defendant?

A causal connection between the failure to commence the action and the fraudulent or other improper conduct is required, that causal connection need not be the sole, dominant direct or proximate connection: Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6], Shire of Toodyay v Merrick, AME Hospitals Pty Ltd v Dixon [2015] WASCA 63.
In AME Hospitals Pty Ltd v Dixon, Buss JA (as he then was) commented that the phrase 'attributable to' in s 39(3) of the LA 2005 required the person to whom the cause of action accrues was aware or reasonably ought to have been aware of a connection between the injury on the one hand and the conduct of the person on the other hand with sufficient confidence reasonably to justify in all of the circumstances the commencement of proceedings against a proposed defendant on the relevant cause of action by the issue of a writ or other originating process.
It is not disputed that prior to the limitation expiring, the business names, Maybo, Maybo Australia and New Zealand and Maybo Australia were not registered as required by Australian law. Self‑evidently, no search could reveal the operating entity behind those names.
Mr Russell points to the correspondence whereby the plaintiff's solicitors asserted on 14 March 2022 that their client did not intend to make any application to add or replace the existing defendant and maintained they had the correct defendant. Mr Russell says that the plaintiff's solicitors maintained, even when advised to the contrary, that the current defendant was the correct defendant and therefore it cannot be said that the improper conduct by Harvey Warwick Group Pty Ltd attributed to the plaintiff's failure to commence proceedings against them.
Further, Mr Russell says there was no causal link because the plaintiff did not take steps to engage with Mr Warwick. I find that Mr Warwick was endeavouring to communicate with the plaintiff shortly after the alleged incident and the plaintiff did not engage with him. It is however pure speculation to suggest that as a result of any such engagement the plaintiff would have learnt who the correct defendant was. I note that Mr Warwick could have conveyed that information at any time to the plaintiff or his solicitors. He did so only after the limitation period expired.
In addition, Mr Russell says that from the information referred to in the 2022 Benedetti affidavit, the plaintiff should have been aware that there was a distinction between Maybo Australia and New Zealand, Maybo and Maybo Ltd and there were separate corporate entities for Australia and New Zealand, UK and Ireland and the USA. The Maybo website showed the Australian entity was led by Mr Warwick as the managing director of Maybo Australia and New Zealand but the corporate searches for Maybo Ltd revealed that he was not a director or officer of that company.
Mr Russell says that due diligence would have shown this conflict of information and the plaintiff needed to resolve the conflict. Mr Russell says the plaintiff had a lot of information which did not quite collate, and it was not enough for them to simply act on the conflicting information, and they had to make further enquiries.
Mr Russell submits that, coupled with the plaintiff's solicitors' insistence in the correspondence of 21 April 2022 that they had the right defendant, means it cannot be said that failure to commence the action was attributable to any improper conduct rather is attributable to the failure of the plaintiff to resolve the conflict that presented itself.
I reject this submission.
The plaintiff's solicitors searched, before the expiry of the limitation period the ASIC records for Maybo Pty Ltd (deregistered), Maybo Australia (twice, the results showed the business name was cancelled) and Maybo Limited which on the evidence before me is a company registered in England. They named in the writ as the defendant one of the proprietors of the business names they searched.
The plaintiff's solicitors were actively searching for registration details of business names associated with Maybo and clearly the inference which I draw is that if Maybo Australia and New Zealand had been registered as a business name they would have been searched and its proprietors would have been defendants in some capacity or another.
I find that if the improper conduct had not occurred and the appropriate business name was registered then the plaintiff would have had sufficient confidence to justify commencement of proceedings against the Harvey Warwick Group Pty Ltd on the relevant cause of action. I appreciate the test was applied by Buss JA in AME Hospitals v Dixon in relation to a different section but in my view, it is the appropriate test to apply.
The improper conduct does not need to be the sole dominant direct or proximate cause. It does need to be a causal connection. The causal connection is the failure to register the business name. If the business name was registered in circumstances where the plaintiff was actively searching corporate records Harvey Warwick Group Pty Ltd would have been identified. I am satisfied that there is a causal connection between the improper conduct and the failure to commence proceedings against Harvey Warwick Group Pty Ltd.
With respect to the s 44 of the LA 2005 factors, in relation to the delay I accept the defendant's submissions that the statute of limitation expired on 18 June 2021 and the plaintiff did not commence an application to join the proposed defendants until June 2022, being a delay of some 12 months. The reason for this delay is largely unexplained. Delay is a factor to consider however it is only one factor.
Regrettably, Mr Harvey Warwick is now deceased, having died on 2 June 2022 some three days before the plaintiff's application. I find that before his death, Mr Warwick made some efforts to contact the plaintiff. There is nothing before me that indicates that Mr Warwick personally conducted the training courses, or he exclusively had information essential to the defence or that he was the only person within the expanded group of defendants who had knowledge of the incident such that the defendants could not make an effectual defence.
There is no evidence as to what other enquiries Mr Warwick made as a result of this incident before his death. He was certainly aware of the incident and the fact that a claim was being made. There was no evidence that any information he obtained in relation to the claim is not available to others.
I do not find that the delay unacceptably diminishes the prospects of a fair trial of the action or that extending the time would significantly prejudice the defendant.
I would allow the plaintiff's application under s 38(2) of the LA in relation to Harvey Warwick Group Pty Ltd.
The position in relation to Tostevin Pty Ltd is different.
I accept the plaintiff's submission that the plaintiff is not required to accept the defendant's then solicitors' claim that Tostevin Pty Ltd had no operational involvement in the business and only exists for financial purposes (it is not clear whether that relates to the situation at that time of the defendant's then solicitors' letter in 2022 or from the date of Tostevin Pty Ltd incorporation) however they do need to establish a basis to properly join Tostevin Pty Ltd as defendants.
I find that the incident giving cause to the claim occurred on 19 June 2018. Tostevin Pty Ltd was incorporated on 21 June 2018 and on 29 September 2021 became the registered holder of and traded under the business names Maybo, Maybo Australia and Maybo Australia and New Zealand.
WACHS considered that the contract entered into in December 2017 was between themselves and Maybo Australia and New Zealand. That contract was entered into prior to the incident occurring and prior to the incorporation of Tostevin Pty Ltd.
There is no evidence of the basis upon which Tostevin Pty Ltd can be said to have either been the contracting party or the party that carried out the training services the subject of the action. There has been no effort by the plaintiff's solicitors in their written or oral submissions or by way of a draft indorsement to establish on what basis Tostevin Pty Ltd are responsible for the training or the contract that resulted in the training.

The plaintiff's case in this regard seems to be based on the fact that Tostevin Pty Ltd is a related company to Harvey Warwick Group Pty Ltd and Tostevin Pty Ltd was from 29 September 2021 registered as the proprietor of the business name and trades as Maybo, Maybo Australia and Maybo Australia and New Zealand and it appears that Maybo Australia and New Zealand conducted the training course, or at the very least, entered into the contract resulting in the training course in 2018.
On the materials before me there is not sufficient grounds demonstrated to join Tostevin Pty Ltd to an action that occurred prior to their incorporation. In some circumstances pre‑incorporation conduct can bind an entity, for example if a contract is ratified. However, there is no evidence before me of any ratification or to establish on what basis Tostevin Pty Ltd are responsible for the training or the contract that resulted in the training and in relation to Tostevin Pty Ltd I do not grant the required leave.

The second issue

Was there reasonable enquiry made by the plaintiff to establish the identity of the person whose conduct was attributable to the plaintiff's injury within s 39 of the LA 2005?
Section 39 provides:
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
…
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
The court's discretion to extend the limitation period under s 39 of the LA 2005 is conditional upon being satisfied of one of the matters referred to in s 39(3)(a) or s 39(3)(b) or s 39(3)(c): AME Hospitals Pty Ltd v Dixon. The relevant issue is what the plaintiff was aware of or not aware.
In AME Hospitals Pty Ltd v Dixon, McLure P and Buss JA (as he then was) said actual awareness was required not constructive awareness.
Buss JA said the section required awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process.
I find that the plaintiff's solicitors knew, inter alia, prior to the limitations period expiring that:
1.There were no entities listed as trading under the names Maybo, Maybo Pty Ltd, Maybo Australia or Maybo Australia and New Zealand.
2.There was an entity called Maybo Ltd which was registered in the United Kingdom.
3.There was a website that provided a Post Office Box address in New South Wales, an Australian mobile telephone number and email address.
4.The plaintiff had received emails from Mr Warwick in which he referred to himself as the managing director of Maybo Australia and New Zealand and contained Mr Warwick's office phone number, his mobile phone, his email address, a website address for Maybo and an ABN. Those emails also state that the Business is registered in South Australia when it was not.
The plaintiff says that he was not aware and could not have been aware that his injuries were attributable to the conduct of the proposed defendant as he did not know the existence of those bodies at the time.
The plaintiff says that the evidence establishes that an identity known as Maybo, Maybo Australia, Maybo Australia and New Zealand or Maybo Training contracted with WACHS to conduct the training course and that none of those business names were registered with ASIC until after the limitation date expired. Accordingly, there was no possible way they could have linked the proposed defendants to any of those business names and no level of enquiry, whether reasonable or otherwise, would have identified the proposed defendants as potential defendants prior to the limitation date expiring.
The plaintiff says the court ought to be satisfied that reasonable enquiry was made by the plaintiff prior to the limitation period and they were unable to establish the identity of the proposed defendants solely because their existence was not known until after 28 January 2022.
Mr Russell says that a post office address, a telephone number and email address for Maybo were contained on documents that the plaintiff obtained, and the plaintiff made no effort to contact the post office address, the telephone number or email address of Mr Warwick or Maybo using that information and that the pre‑conditions of reasonable enquiry have not been established.
The defendant suggests that the plaintiff should have made contact with Mr Warwick and suggests that Mr Warwick would have told him the name of the correct defendant. The defendant's suggestion is that Mr Warwick, whose correspondence included the statement that the business was registered in South Australia when it was not, and who was corresponding in his capacity as managing director of Maybo Australia and New Zealand which should have been a registered business name but was not, would have told the plaintiff or the plaintiff's solicitors the correct defendant. I reject this contention. It is pure speculation as to what Mr Warwick would or would not have said. Mr Warwick could have always complied with the law and registered the business name and avoided the necessity for such enquiry. One reason the law requires business operators to register business names on a public registry is to avoid the type of issue which has arisen. I do not consider the points raised establish there were not reasonable enquiries made by the plaintiff.
I note that Mr Warwick made no effort to advise the plaintiff or the solicitors of the correct corporate entity until after the statute of limitations had expired.
Mr Russell says that an ABN number was on all correspondence sent to the plaintiff by Mr Warwick in September, October and 6 November 2018. However, a search of that ABN shows nothing more than 'the Trustees for F & N Trust' which was a discretionary services management trust, and no reference is made to Harvey Warwick Group Pty Ltd.
Further, the defendant says in their written submissions the plaintiff could have brought an application for pre‑action discovery under O 26A RSC against WACHS and obtained the correspondence from them to Mr Warwick which made it clear there was a contract between Maybo Australia and New Zealand and WACHS. The reality is that the inquiry would have led nowhere. In that correspondence (February 2018) WACHS accepted the quote and advised that 'Acceptance of your Offer constitutes an agreement between Maybo Australia and New Zealand [ABN 64 274 649 674] and WA Country Health Service'. That ABN details the controlling entity as 'The trustee for the F & N Trust'. Further, Maybo Australia and New Zealand was not registered as a business name before the limitation period expired.
The defendant in par 41 of their submissions says that the ABN of the relevant entity was provided to the plaintiff on 5 September 2018. The ABN provided on that date was the ABN of the entity's 'The Trustee for F & N Trust' and does not make any reference at all to the proposed defendants. It takes the matter nowhere and would not have revealed the names of the proposed defendants.
The defendant says there was clearly confusion as to the correct corporate entity and the plaintiff needed to make reasonable enquiry to ensure the true identity of the defendant entity soon after the occurrence of the physical cause of his injury. The defendant refers to Cunningham v Moorevest Pty Ltd, where Judge Goetze said that due to a conflict in instructions relating to the name of the proposed defendant, reasonableness required further investigation by the lawyers to establish the true identity of the entity whose conduct the injuries were attributable.
Judge Goetze found that the further enquiries that should have been made were, in essence to search the public register being the Landgate register to show who the registered proprietors of, in that case, the shopping centre and carpark were; to attend the shopping centre which would have revealed the existence of the sign required under the Western Australian Business Names Act 1962; to send a letter to the relevant business advising of the injury and the intention to claim damages; and conduct the ASIC searches of the names similar to the names in issue.
In this case, enquiries were made of the ASIC register and if they had attended the premises named, there could not be any business name certificate as the business name was unregistered despite Maybo correspondence saying the Business was registered in South Australia. The plaintiff's solicitors did send a letter to Maybo and clearly advised Mr Warwick of the injury and the intention to claim, and they did search for similar names ie: Maybo, Maybo Australia and New Zealand and Maybo Ltd.
Mr Russell repeats the arguments that I have referred to in [30] ‑ [34] as grounds to say that the plaintiff had failed to make reasonable enquiry. That is, the plaintiff effectively asserting and insisting that they have the right defendant ([30] and [34]), the plaintiff's failure to engage with Mr Warwick which it said would have led to Mr Warwick disclosing the correct defendant ([31]) and the plaintiff's failure to resolve the conflict of information that was then available to them [32] - [33]. I repeat my findings previously made in respect of those issues.
Mr Russell points to what appears to be the quote provided to WACHS entitled Maybo which has an ABN on that correspondence which is registered to the Harvey Warwick Group Pty Ltd (Caitlin Jane Paxton affidavit of 1 February 2023). This only creates further confusion because a search of Maybo could not occur as it was an unregistered business name. In addition, the correspondence of February 2018 from WACHS advises Mr Warwick, Managing Director of Maybo Australia and New Zealand that 'acceptance of his offer constitutes an agreement between Maybo Australia and New Zealand (ABN 64 274 649 674), a different ABN to that on the Maybo quote) and WA Country Health Service'. Maybo Australia and New Zealand was at that time an unregistered business name.

The ABN referred to in the WACHS correspondence has as the operating entity the trustee for the F & N Trust.

The plaintiff, prior to expiration of the limitation period, conducted ASIC searches referred to previously and by correspondence of 24 May 2021 requested that the defendant's then solicitors provide discovery of all documents relating to Maybo's engagement in or about June 2018 and any documents they have relating to the training course occurring on 19 June 2018. On 14 June 2021, the defendant's then solicitors replied that they were awaiting instructions. No relevant information was forwarded by the defendant's then solicitors prior to the expiration of the limitation period (Benedetti affidavit of 2 February 2023, GRB1.GRB2). The results of the searches turned up Maybo Ltd being the entity the plaintiff then sued. Even if the plaintiff had made further enquiries from WACHS as suggested by the defendant's then solicitors they would have led to Maybo Australia and New Zealand which was at that time an unregistered business name or an ABN that had as its operating entity the trustee for the F & N Trust.
What is reasonable will vary from case to case. The defendant can hardly come to the court and say that the confusion created either intentionally or otherwise by the named and proposed defendants in their correspondence and by the way they structured their corporate entities means that the plaintiff should just keep on making further enquiries in circumstances where if the proposed defendants complied with Australian law these enquiries would not be necessary.
I find that reasonable enquiries were made. There are always more enquiries that can be made. The section refers to reasonable enquiry, not all reasonable enquiries that could possibly be made. I am satisfied that reasonable enquiry had been made.
I find that all of the correspondence received by the plaintiff shortly after the incident refers to Maybo, Maybo.com.au, Maybo Australia and New Zealand and an email address associated with Maybo. No reference is made directly or indirectly to the proposed defendants.
Evidence shows that between May and June 2021 the solicitors for the plaintiff emailed the defendant's then solicitors, requesting details about 'Maybo' and conducted searches of the ASIC's database for Maybo Pty Ltd (deregistered), Maybo Australia (twice, the results showed the business name was cancelled) and Maybo Limited as well as conducting internet searches for Maybo and obtaining printouts from the website They also conducted searches of companies in the United Kingdom where a result was returned for Maybo Ltd.
It is not in dispute that none of those enquiries revealed the identity of Harvey Warwick Group Pty Ltd.
It is further accepted that prior to 29 September 2021, that is until after the statute of limitations had expired, Maybo Australia or Maybo Australia and New Zealand were not registered on the business names register as they should have been in accordance with appropriate legislation.
I am satisfied that the plaintiff made reasonable enquiries and was not able to establish the identity of the proposed defendants before the statute of limitations period expired.
Therefore, the discretion is enlivened.
In exercising the discretion, I consider the s 44 factors and again, I find that the delay has not been properly explained. I do not find that it unacceptably diminishes the prospects of a fair trial of the action and whilst I acknowledge the unfortunate death of Mr Warwick for reasons expressed in [40] - [43], I am not satisfied that significant prejudice to the defendant has been established. On the contrary, the evidence establishes that, of the enquiries made by Mr Warwick of the plaintiff, nothing was achieved as the plaintiff did not speak to him therefore the defendant have not lost any evidence as a result of those enquiries.
I am not satisfied there is an unacceptable diminishing of the prospects of a fair trial or any significant prejudice has been suffered by the defendant and accordingly, I would exercise my discretion under s 39(3)(c) of the LA 2005 to allow an extension of time within which the action can be commenced against Harvey Warwick Group Pty Ltd.
For similar reasons as articulated, whilst dealing with the first issue, I would not grant leave in respect of Tostevin Pty Ltd.

The third issue

Order 21 r 5 states:

5 Amending writ or pleading with leave
(1)This rule is subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5).

(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may dire

Mr Russell says the O 21 r 5 RSC discretion should not be exercised as the plaintiff does not claim that they have issued or named the current defendant by mistake and are simply seeking to add two parties for the avoidance of doubt and they failed to make reasonable enquiries before the issue of the writ and have delayed seeking to add the proposed defendant without any explanation for the delay and the defendant would suffer real prejudice because Mr Warwick has since died.
Mr Russell says that before the court can exercise its discretion under O 21 r 5 RSC there must be a good reason such as a genuine mistake in naming the defendant and the plaintiff does not fall within O 21 r 5 because they made no mistake in the writ as the plaintiff's lawyers maintained and still maintain they have sued the correct party.
If the court had grounds to exercise its discretion, Mr Russell says that the death of Mr Warwick is a factor to be weighed in the exercising of the discretion because it creates prejudice for them.
The proposed defendant Harvey Warwick Group Pty Ltd says the plaintiff has not explained why he did not make reasonable enquiry before the issue to the writ and he did not take action before 2 June 2022 to seek to substitute or add the proposed defendants.
The plaintiff says O 21 r 5 RSC is a remedial rule and it should be given a beneficial interpretation. They submit that they are not introducing a new cause of action nor substituting new defendants for the original defendants or adding a party in a different capacity.
The plaintiff refers to the affidavit of Ms Benedetti of 2 June 2022 saying that the plaintiff at all times intended to sue the corporate entity which controlled and conducted the training course and the omission of the proposed defendants from the main action was simply a misnomer. The plaintiff says that the defendant always knew this was the position. I note that the writ issued does not specify the capacity in which the defendant is sued.
The plaintiff says they now want to include the proposed defendants who conducted and exercised control over the training course and matters in question to ensure that the action is brought against all corporate entities with power and or control over the training course and related matters.
The plaintiff says the defendant's failure to register the business trading name meant it was impossible for them to have known of the proposed defendants at the time of issuing the writ of summons it was only after the expiration of the limitation material that it was established that the proposed defendants conducted the training course.
The plaintiff says the misnomer was not to include the proposed defendants when the writ of summons was filed, and it was a misnomer as to 'the name of the party' as opposed to adding a party within a different capacity and the defendants always knew that was the entity that the plaintiff wished to sue.
The plaintiff says that the former solicitors for the named defendant is the same solicitors for the proposed defendant Harvey Warwick Group Pty Ltd that had control of the training course and that Tostevin Pty Ltd was a related company and since September 2021 was the owner of the three business names. Therefore there is no possibility that the misnomer was misleading and the discretion ought to be exercised in their favour by allowing the addition of the proposed defendants.
The plaintiff says that the statements of principle made by the majority in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 that a court can correct the name of a party (after the expiration of the limited period) in circumstances of a genuine misnomer apply to O 21 r 5, both before and after the amendment.

I find a court is empowered to allow the substitution of a new defendant unconnected with the original defendant and unaware of the plaintiff's claim after any relevant period of limitation has expired: Alinta 2000 Ltd v Petkov [2012] WASCA 258.
In the recent decision of Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139 [44], [46] the court said the amendment to O 21 r 5 RSC have not altered the beneficial nature of that order or the scope of its power, include 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 answered that description. The court said the principles and considerations referred to in Petkov apply and the essential requirement remains that it is in the interest of justice to grant leave to amend.

The Petkov principles include whether the mistake sought to be corrected was a genuine mistake (including an error made with fault); whether the mistake was misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; and if it is just, in all the circumstances, to make the amendment.
Once an amendment to the name of the defendant is properly made within O 21 r 5 RSC, the amendment does not involve the addition or substitution of a party within the meaning of O 18 r 6. This is because if there is no addition or substitution of a new party, there is no occasion to regard the amendment as a procedure having the effect of circumventing a limitation defence: Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd, McLure J (as she then was) in Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [48] - [49].
In Smith v High Energy Service Pty Ltd [2020] WADC 119, Lemonis DCJ dealt with an application to add a fifth defendant in circumstances where the plaintiff contended that when they commenced the proceedings they intended to sue all the owners and operators of the shopping centre but did not appreciate that the proposed fifth defendant in effect managed the shopping centre.
His Honour said that whether an amendment should be made is dependent on the nature of the mistake and the critical question was whether the amendment sought are in substance a correction to a mistake in the name of the party or instead constitute the addition of a new party. If the latter applied, then O 18 r 6 would apply and the limitation issues would need to be considered.
In Smith, as in this case, the writ of summons issued did not identify the capacity in which the defendants were sued. His Honour found that what the plaintiff was seeking to do was to expand the defendants to his claim so as to include any other entity who he believed may be responsible and that was a different proposition to amending to correct an error in the designation of the current defendants. His Honour said that such a mistake is not as to the name of an existing party within either of the categories referred to by McHugh J in Bridge Shipping Pty Ltd v Grand Shipping SA.
His Honour pointed out that the plaintiff maintained a claim against the third and fourth defendants in the same capacity in which he did prior to the application being brought against the other owners or operators of the shopping centre and did not suggest that the existing defendants were joined or the capacity in which they were sued was a mistake but says the mistake was that at the time of filing the writ he thought the entities who fell within the class of those who he intended to sue were limited to the third and fourth defendants. There was no suggestion that the mistake in the joinder of or name of the third and fourth defendants or as to the capacity in which they were sued.
His Honour found the mistake was not one as to the name of an existing defendant but a mistake as to the size of the class of persons that the plaintiff intended to sue and, in effect, what the plaintiff was seeking to do was to expand the group of entities that meet the characterisation of owners/operator.
His Honour distinguished Galloway v Minister for Health[No 2] [2015] WADC 119 where a substitution to correct the name of a party who had been identified by a particular description was permitted under O 21 r 5(3). In that case the plaintiff had mistakenly believed that the minister sued was responsible for the operation of two hospitals when in fact he was only responsible for one and the amendment was allowed on the basis that the designation of the minister as being responsible for both hospitals was a mistake, and the minister was only being sued as being responsible for one hospital.
Irrespective of what Ms Benedetti's affidavit of 2 June 2022 says, the plaintiff's endorsement on the writ of summons issued on 17 June 2021 states the plaintiff's claim is for damages for personal injuries caused to the plaintiff as a result of the negligence and/or breach of statutory duty by the defendant, its servant and/or agents on or about 19 June 2018. It does not identify the capacity in which the defendant was sued, and the plaintiff's lawyers maintain that they have sued the correct party.
As in Smith, what the plaintiff is seeking to do is to expand the defendants to its claim to include any other entity he believes may be responsible 'just in case' or out of an abundance of caution and still maintain the claim against the named defendant and to say, as in Smith, that at the time of filing the writ he thought the entity fell within the class of those he intended to sue was limited to the named defendant.
This case is similar to Smith and distinguishable from Galloway. The mistake I find is not one as to the nature of the existing defendant but a mistake as to the size of the class or persons that he intended to sue, and I would not permit the amendment pursuant to O 21 r 5 RSC.
The orders I propose to make are as follows:
1.The orders made by Deputy Registrar Harman on 11 October 2022 be set aside.
2.The court extend the time at which the plaintiff's action can be commenced against Harvey Warwick Group Pty Ltd to 31 March 2023.
3.The plaintiff have leave to amend his writ of summons dated 17 June 2021 by adding Harvey Warwick Group Pty Ltd as a second defendant in this action and have leave to amend the indorsement of claim accordingly.
4.The plaintiff's application is otherwise dismissed. I shall hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
22 FEBRUARY 2023