Maamary v Pepsico Australia Pty Ltd - [2001] NSWCA 375

Reported Decision:
[2001] ACL Rep 325 NSW 411

New South Wales

Court of Appeal

CITATION: Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375

FILE NUMBER(S): CA 40411/00

HEARING DATE(S): 31 August 2001

JUDGMENT DATE:
26 October 2001

PARTIES :

Joseph Maamary - Appellant
Pepsico Australia Pty Ltd - First Respondent
Kentucky Fried Chicken Pty Ltd - Second Respondent
Simon Konstantinidies (t/as Konstan Laweyrs) - Third Respondent

JUDGMENT OF: Mason P at 1; Giles JA at 2; Studdert AJA at 64

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 3257/97

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

COUNSEL: G Curtin - Appellant
B Hull - First & Second Respondents
No appearance - Third Respondent

SOLICITORS: Adams & Co - Appellant
Malcolm Johns & Co - First & Second Respondents
No appearance - Third Respondent

CATCHWORDS: PRACTICE AND PROCEDURE - wrong defendant - proceedings struck out - applications to reinstate and substitute correct defendant - application to reinstate wrongly refused on ground could not pay regard to substitution - on application for substitution, whether a mistake in the name of a party - was a mistake - should be substitution - should be reinstatement to allow substitution. D

CASES CITED:
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231;
Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 213;
Marsland v Andjelic (No 1) (1993) 31 NSWLR 162;
McGee v Yeomans (1977) 1 NSWLR 273;
New South Wales Insurance Ministerial Corporation v Anderson (CA, 14 June 1994, unreported);
Rodway v The Queen (1990) 169 CLR 575;
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.

DECISION: (1) Appeal allowed; (2) Set aside the dismissal by Gibb DCJ of the claims to orders 1 and 2 in the further amended notice of motion heard by her Honour on 11 May 2000; (3) Set aside the order striking out the proceedings made by Garling DCJ on 29 May 1998; (4) Grant leave to amend the statement of claim by substituting Kentucky Fried Chicken Pty Ltd for Pepsico Australia Pty Ltd as defendant; (5) First and second respondents pay the appellant's costs of the appel and to have a certificate under the Suitors Fund Act if qualified.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40411/00
DC 3257/97

MASON P

GILES JA

STUDDERT J

Friday, 26 October 2001

MAAMARY v PEPSICO AUSTRALIA PTY LTD & ORS

Judgment

I agree with Giles JA.

: This is an appeal by leave from the refusal by Gibb DCJ to make an order or orders whereby the appellant’s claim for damages for personal injury could be revived and pursued.

History

3 The appellant, Mr Joseph Maamary, claimed to have slipped and suffered injury in a Kentucky Fried Chicken outlet on Canterbury Road, Bankstown on 18 June 1994. At some time in or prior to April 1997 he consulted Konstan Lawyers, of which the third respondent, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWCA 375
Decision Date: 26 October 2001

CaseChat Overview and Summary

The appellant, Maamary, commenced proceedings against Pepsico Australia Pty Ltd. The dispute concerned an application to substitute the correct defendant, Kentucky Fried Chicken Pty Ltd, after the original proceedings were struck out. The appeal was heard by Mason P, Giles JA, and Studdert AJA in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the initial striking out of the proceedings was appropriate, whether the appellant had made a mistake in naming the defendant, and if so, whether leave should be granted to substitute the correct defendant and reinstate the proceedings. Specifically, the court considered the application of rules relating to the substitution of parties and the circumstances under which proceedings that have been struck out can be reinstated.

The Court of Appeal found that the initial refusal to consider substitution was erroneous. It determined that the naming of Pepsico Australia Pty Ltd as the defendant constituted a mistake within the meaning of the relevant rules, as the appellant intended to sue the entity responsible for the cause of action, which was Kentucky Fried Chicken Pty Ltd. The court reasoned that the purpose of the rules was to allow for the correction of such errors to ensure that litigation could proceed against the proper party. Consequently, the court allowed the appeal, set aside the orders dismissing the claims and striking out the proceedings, and granted leave to amend the statement of claim to substitute Kentucky Fried Chicken Pty Ltd as the defendant.

Orders

Orders of the court

I propose the following orders -

(1) Appeal allowed.

(2) Set aside the dismissal by Gibb DCJ of the claims to orders 1 and 2 in the further amended notice of motion heard by her Honour on 11 May 2000.

(3) Set aside the order striking out the proceedings made by Garling DCJ on 29 May 1998.

(4) Grant leave to amend the statement of claim by substituting Kentucky Fried Chicken Pty Ltd for Pepsico Australia Pty Ltd as defendant.

(5) First and second respondents pay the appellant’s costs of the appeal and have a certificate under the Suitors Fund Act if qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375
FILE NUMBER(S):	CA 40411/00
HEARING DATE(S):	31 August 2001
JUDGMENT DATE:	26 October 2001
PARTIES :	Joseph Maamary - Appellant Pepsico Australia Pty Ltd - First Respondent Kentucky Fried Chicken Pty Ltd - Second Respondent Simon Konstantinidies (t/as Konstan Laweyrs) - Third Respondent
JUDGMENT OF:	Mason P at 1; Giles JA at 2; Studdert AJA at 64

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 3257/97
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	G Curtin - Appellant B Hull - First & Second Respondents No appearance - Third Respondent
SOLICITORS:	Adams & Co - Appellant Malcolm Johns & Co - First & Second Respondents No appearance - Third Respondent
CATCHWORDS:	PRACTICE AND PROCEDURE - wrong defendant - proceedings struck out - applications to reinstate and substitute correct defendant - application to reinstate wrongly refused on ground could not pay regard to substitution - on application for substitution, whether a mistake in the name of a party - was a mistake - should be substitution - should be reinstatement to allow substitution. D
CASES CITED:	Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 213; Marsland v Andjelic (No 1) (1993) 31 NSWLR 162; McGee v Yeomans (1977) 1 NSWLR 273; New South Wales Insurance Ministerial Corporation v Anderson (CA, 14 June 1994, unreported); Rodway v The Queen (1990) 169 CLR 575; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.
DECISION:	(1) Appeal allowed; (2) Set aside the dismissal by Gibb DCJ of the claims to orders 1 and 2 in the further amended notice of motion heard by her Honour on 11 May 2000; (3) Set aside the order striking out the proceedings made by Garling DCJ on 29 May 1998; (4) Grant leave to amend the statement of claim by substituting Kentucky Fried Chicken Pty Ltd for Pepsico Australia Pty Ltd as defendant; (5) First and second respondents pay the appellant's costs of the appel and to have a certificate under the Suitors Fund Act if qualified.