McKenna v JWLand Construction Pty Ltd
[2025] ACTSC 315
•21 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McKenna v JWLand Construction Pty Ltd |
Citation: | [2025] ACTSC 315 |
Hearing Date: | 4 July 2025, 11 July 2025 |
Decision Date: | 21 July 2025 |
Before: | Muller AJ |
Decision: | (1) The plaintiff is granted leave to file a second further amended originating claim within 14 days from the date of this order; (2) The plaintiff is granted leave to file a second further amended statement of claim, in the form of Annexure M to the affidavit of Angela Omari sworn on 9 July 2025, within 14 days from the date of this order; (3) Each party is to bear its own costs of the application. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – application to amend claim – amending application brought after limitation period on claim expired – mistaken belief in identity of occupier – whether substitution available under r 503 – leave to amend granted |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ch 5, s 51 Court Procedures Rules 2006 (ACT), rr 220, 230, 242, 502, 503, 504 Limitation Act 1985 (ACT), ss 16A, 16B |
Cases Cited: | Beta ACT Pty Ltd as Trustee for the Brendas Family Trust v FTI Consulting Pty Ltd [2021] ACTSC 293 Brando Aus Holdo Pty Ltd v Gary Shayne as representative of the persons identified in Schedule 1 [2021] NSWSC 998 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; 173 CLR 231 Brown v Jammal [1995] NSWCA 62 Cooke v Rixon [2016] ACTSC 236 Davies v Barancewicz [2011] ACTSC 166 Greenwood v Papademetri [2007] NSWCA 221 Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd [2024] ACTSC 352 Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162 The Owners – Units Plan No 4312 v Project Coordination Australia Pty Ltd [2025] ACTSC 110 Woden Valley Glass v Psaila (1993) 44 FCR 140 |
Parties: | John Mckenna ( Plaintiff) JWLand Construction Pty Ltd ( Defendant) Vantage Strata Pty Ltd (First Potential Defendant) The Owners - Units Plan No 15367 (Second Potential Defendant) Altair No.1 Pty Ltd (First Third Party) Enliven Housing Pty Ltd (Second Third Party) J & M McKenna Pty Ltd (Third Third Party) Safeguard Home Improvements Pty Ltd T/As Wynstan Commercial (Fourth Third Party) |
Representation: | Counsel D Steiner ( Plaintiff) L Cassidy ( Defendant) No appearance (First Potential Defendant) K Yeung (Second Potential Defendant) |
| Solicitors Gerard Malouf & Partners ( Plaintiff) Clyde & Co ( Defendant) No appearance (First Potential Defendant) Gilchrist Connell (Second Potential Defendant) | |
File Number: | SC 60 of 2024 |
MULLER AJ:
Introduction
1․The plaintiff alleges that he suffered injury on 4 April 2022 when he tripped and fell over a plastic-wrapped pack of building materials located in a pedestrian walkway at a construction site. A new building had been erected at the site, at 61-65 Cooyong Street in Braddon, ACT (the property), and construction was at or near completion. The plaintiff was at the site in the course of his work as a consultant project manager/window covering installer.
2․As a result of the incident the plaintiff claims that he suffered a significant fracture injury to the right shoulder requiring surgical intervention, and associated psychological injury.
3․He subsequently commenced this proceeding against the defendant on 15 February 2024 with the filing of an originating claim and statement of claim. The named defendant was the company engaged to construct a multi-unit residential building at the site.
4․On 25 October 2024 the plaintiff was granted leave to amend his statement of claim. Those amendments were largely related to form, and did not change the identity of the defendant, which continued to be sued as the entity responsible for construction of a new building at the site. Relevantly for present purposes, the statement of claim in original and amended form identified the defendant as the occupier of the construction site, with exclusive care, control and responsibility for the site.
5․The amendment made it clear that the defendant was not sued as a consequence of an employment relationship with the plaintiff, thus necessitating a change in the procedural sense as to the nature of the claim.
6․On 6 December 2024 the plaintiff was granted leave to file a further amended originating claim and statement of claim, on this occasion amending or correcting the name of the defendant. That amendment was made necessary because of a communication from the solicitor on the record for the defendant, indicating that the correct entity for the plaintiff to sue within the JWLand Group was JWLand Construction Pty Ltd. The amendment was consented to, and orders were made removing JWLand Group Pty Ltd as a defendant pursuant to r 230 of the Court Procedures Rules 2006 (ACT) (the CPR) and including JWLand Construction Pty Ltd as defendant pursuant to r 220 of the CPR.
7․For reasons that are in part explained by the defendant’s representatives in a non-compliance affidavit on the court file, a defence was not lodged until 3 April 2025, well after the plaintiff’s lodgement of the further amended statement of claim. By its defence, the defendant admits that it was the licenced builder engaged to construct a multi-unit residential building at the property. However, it contends that the subject works were completed on or around 17 February 2022 and the site was shortly thereafter returned to the entity that had engaged it to perform the construction works, being Altair No.1 Pty Ltd.
8․In addition, the defendant says that on or around 23 March 2022, a body corporate was established. From that time the site was under the care, control and responsibility of the body corporate and was no longer a construction site. Relevantly, that change predates the occurrence of the incident that befell the plaintiff at the site.
The current application
9․With that background, and armed with the information from the defence concerning the occupation and control of the site at the time of the subject incident, the plaintiff elected to lodge this application in proceeding seeking orders in respect of the inclusion of the Owners – Units Plan No 15367 (UP 15367), and Vantage Strata Pty Ltd (Vantage Strata), the registered proprietors of the common property for the site, as defendants. The plaintiff relies on rr 220(1), 502, 503(2) and 504 of the CPR.
10․By its application the plaintiff seeks to join two additional defendants, as opposed to substituting one or both of them for the existing defendant.
11․The existing defendant consents to the application. In respect of the proposed new defendants, only one of them was represented at the application hearing, that being UP 15367 (although there was evidence demonstrating that both proposed defendants had been served with the application and supporting affidavit). Ms Yeung, appearing for UP 15367, indicated her client’s opposition to the orders sought.
12․In support of the application the plaintiff initially relied upon the affidavit of Angela Omari, solicitor for the plaintiff, sworn on 14 April 2025, together with affidavits evidencing service on the prospective defendants. After some discussion on the first occasion that the matter came before me on 4 July 2025, hearing of the application was adjourned to enable the filing of further affidavit evidence. When the matter came before me again on 11 July 2025, the plaintiff read a further affidavit of Ms Omari sworn on 9 July 2025. No evidence was filed by the defendant or the prospective defendants.
The evidence
13․The first affidavit of Ms Omari identified the receipt of the defence as the trigger for identifying the need to add the proposed defendants. She also confirmed that a title search was obtained in response to receipt of the defence, and by that search the proprietors of the common property were identified.
14․In her second affidavit Ms Omari described the plaintiff as a project manager and installer of window coverings for his family-owned company. It was in that capacity that he was attending the site on the day of his injury. Ms Omari attested to the plaintiff’s mistaken belief that the defendant who had constructed the property was also in occupation, possession and control of the site on the date of his injury, and was therefore the proper respondent to his claim. She also provided an explanation for a number of errors that had been identified in the personal injury claim forms served on the prospective defendants, and the efforts to correct those errors in documents served more recently.
15․The obvious difficulty for the plaintiff arising from the defence is the indication therein that occupation and control of the site had passed from the named defendant before the date on which the plaintiff suffered his injury. The defendant pleads that the site was returned to the company by which it was engaged on or around 23 March 2022. A title search obtained by the Plaintiff’s solicitor confirms that a new unit title lease commenced on 25 March 2022, with the proprietors of the common property for the site identified as UP 15367 and Vantage Strata.
16․To compound that difficulty, this application in proceeding was lodged more than three years after the date of the plaintiff's injury. The material placed before me does not enable a determination of whether the injury event is one that is a “compensable injury” within the meaning of s 16A of the Limitation Act 1985 (ACT) (Limitation Act): see Davies v Barancewicz [2011] ACTSC 166. Whether s 16A or s 16B applies, a limitation period current at the time the proceedings were commenced has since expired, and in those circumstances different considerations apply to the determination of an application to amend the pleaded claim.
Submissions
17․The plaintiff provided a written outline of submissions that was supplemented orally. The primary contentions were:
(a)The subject building was newly constructed and the plaintiff himself was at the premises in his capacity as an installer of window coverings;[1]
[1] The plaintiff elected to provide no further detail regarding his own purpose for being at the building, such as the identity of the person that he was meeting or the particular work that he was there to perform.
(b)The plaintiff was under a mistaken belief that the named defendant who had constructed the building was also in occupation, possession and control of the property on the date of his accident;
(c)The substance of the pleading in the claim that was originally filed reflected the plaintiff’s mistaken belief as to the identity of the occupier;
(d)He became aware of his mistake upon receipt of the defence identifying the change in occupation and control of the property shortly prior to the injury date; and
(e)The mistake was a genuine mistake, and with the filing of this application the plaintiff seeks to correct the mistake that he made.
18․Counsel for the plaintiff submitted that it was clearly always the intention of his client to pursue the entity in possession of the site and with exclusive responsibility for its management and control. The mistake was therefore a mistake as to the identity of the entity which occupied the property and owed a relevant duty to the plaintiff. The plaintiff relied upon the observations of Mossop AsJ (as his Honour then was) in Cooke v Rixon [2016] ACTSC 236 (Cooke), by asserting that the mistake in the present case was one that fitted the second category identified by his Honour in Cooke at [23], namely:
[W]hen the plaintiff knows a person by a particular description, for example, the driver of a certain car, but the plaintiff is mistaken as to the name of the person who answers that description.
19․The plaintiff in this case contends that the person was known by a particular description, that is, as the occupier exercising exclusive care, control and responsibility for the property, but the plaintiff was mistaken about the name of the person answering that description.
20․In opposing the application, the solicitor for UP 15367 raised the following matters:
(a)That there was a concern about the identity of the site of the plaintiff's injury on the basis that the personal injury claim notification (PICN) initially served upon the prospective defendants had described an incident occurring at 55 Cooyong St, not 61 Cooyong Street; and
(b)That there had been a failure to provide a notice of claim in a timely manner in accordance with s 51(3)(b) of the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act).
21․At the time of the hearing on 11 July 2025 it was apparent that the solicitor representing UP 15367 had not been served with a copy of the further affidavit of Ms Omari. I therefore allowed them until 16 July 2025 to make any further submissions in reply to Ms Omari’s affidavit. As a supplement to the oral submissions made previously, it was further contended in the reply submissions on behalf of UP 15367 that:
(a)There had been a failure to adequately explain the mis-description of the property address in the PICN served on it in April 2025;
(b)There had been a failure to adequately explain the delay in the identification of the correct address;
(c)The plaintiff was in breach of the requirements of s 51(3)(b) of the CLW Act by virtue of the late service of the PICN on UP 15367; and
(d)The plaintiff had failed to explain why no title search was conducted to ascertain the identity of the occupier of the common area at an earlier time.
The proposed amended claim
22․Annexed to the affidavit of Ms Omari sworn on 9 July 2025 is a copy of the plaintiff’s proposed second further amended statement of claim (the proposed amended claim).
23․UP 15367 and Vantage Strata are both added as defendants. There are a number of minor proposed amendments, but the substantive amendments dealing with the proposed defendants (from [3A] to [3D]) are as follows:
3A.At all material times, the First Defendant:
3A.1.was a corporation established in accordance with section 8 of the Unit Titles (Management) Act 2011 (ACT);
3A.2.was liable to sue and be sued in its own corporate name pursuant to section 9 of the Unit Titles (Management) Act 2011 (ACT);
3A.3.was the owner, occupier, and had the exclusive care, control, management and administration of the common property of the property in accordance with section 16(1)(b) of the Unit Titles (Management Act 2011 (ACT);
3A.4.owed a statutory duty to control, manage and administer the property; and
3A.5.owed a statutory duty to maintain the property in good repair and working order pursuant to section 24 of the Unit Titles (Management) Act 2011 (ACT).
3B.In the circumstances, the Second Defendant owed a duty to take all care that is reasonable in the circumstances to ensure that anyone on the property does not suffer injury or damage because of the state of the property or things done or omitted to be done about the state of the property.
3C.At all material times, the Third Defendant was:
3C.1.a duly incorporated Australian company, liable to sue and be sued in its own corporate name and style; and
3C.2.the manager, as that term is defined in section 49 of the Unit Titles (Management) Act 2011 (ACT), of the property in accordance with the terms of a written agreement (‘the agreement).
Particulars
(a)The agreement was entered into by the Second Defendant and the Third Defendant pursuant to section 50 of the Unit Titles (Management) Act 2011 (ACT).
(b)The Plaintiff seeks disclosure of the agreement pursuant to section 68 of the Civil Law (Wrongs) Act 2002 (ACT).
(c)The Plaintiff relies on the agreement as if it were fully set out herein.
3D.In the circumstances, the Third Defendant owed a duty to take all care that is reasonable in the circumstances to ensure that anyone on the property does not suffer injury or damage because of the state of the property or things done or omitted to be done about the state of the property.
24․Reading the document as a whole it is apparent that the reference to “first defendant” at the commencement of paragraph 3A is a typographical error and is intended to be a reference to the (proposed) second defendant, UP 15367.
25․There are consequential amendments in terms of particulars of negligence raised against the proposed defendants.
26․Importantly, for reasons discussed further below the claim against the named defendant is amended to remove the following allegations:
2.At all material times, the First Defendant was:
...
2.3.The occupier of the construction site; and
2.4.Had the exclusive care, control and responsibility for the construction site.
27․The effect of the latter amendment is to remove the allegation that the named defendant was at all material times the occupier, with exclusive care, control and responsibility for the site. The plaintiff proposes to maintain a claim against the named defendant that is based on its role as the licensed builder responsible for construction of the new building at the site.
Which rules apply?
28․By its application the plaintiff relies upon r 220 and r 503(2) of the CPR in seeking leave to join the proposed defendants. An understanding of the operation of r 503 is assisted by also having reference to r 502. I have set out the provisions below:
220Court may include party if appropriate or necessary
(1)The court may order that a person be included as a party to a proceeding if—
(a)the person ought to have been included as a party; or
(b)including the person as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding.
(2)The court may make an order under this rule—
(a)at any stage of the proceeding; and
(b)on application by the person or a party to the proceeding or on its own initiative; and
(c)whether the person to be included should be a plaintiff or defendant.
Note 1Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Note 2Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.
…
502Amendment—of documents
(1)At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.
(2)The court may give leave, or give a direction, on application by the party or on its own initiative.
Note 1Pt 6.2 (Applications in proceedings) applies to an application for leave or a direction under this rule.
Note 2Rule 6902 (Leave may be given on conditions) provides that, if the court gives leave under these rules, it may give the leave on the conditions it considers appropriate.
(3)The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(4)If there is a mistake in the name or identity of a party, the court must give leave for, or direct the making of, amendments necessary to correct the mistake, even if the effect of the amendments is to substitute another person as a party.
(5)This rule does not apply in relation to an amendment of an order.
NoteSee r 6906 (Mistakes in orders or court certificates) for amendment of orders.
(6)This rule is subject to rule 503 (Amendment—after limitation period).
503Amendment—after limitation period
(1)This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
NotePt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
(2)The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if—
(a)the court considers it appropriate; and
(b)the court is satisfied that the mistake sought to be corrected—
(i) was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.
(3)The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counter-claiming defendant, only if—
(a)the court considers it appropriate; and
(b)the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.
(4)The court may give leave to make an amendment to include a new cause of action only if—
(a)the court considers it appropriate; and
(b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
29․Each of those rules provides for an order including a person as a party to a proceeding where the particular circumstances of the relevant rule are satisfied.
30․Rule 220 is cast in broad terms and would on its face accommodate the situation confronting the plaintiff. The wording of the rule itself does not seek to confine its operation: see The Owners – Units Plan No 4312 v Project Coordination Australia Pty Ltd [2025] ACTSC 110 at [9]. However, amendment pursuant to that rule may be of little assistance to the plaintiff in circumstances where the limitation period in respect of the claim against the proposed defendants has expired. Rule 242 applies to an order made under r 220, that has the effect of including a party:
242Included or substituted parties—date proceeding taken to start
(1)This rule applies if the court orders that a person be included or substituted as a party in the proceeding.
(2)The date the proceeding starts in relation to the person is taken to be—
(a)the date when the order is made; or
(b)if another date is stated in the order—that date.
(3)However, an earlier date must not be stated in the order if the inclusion or substitution of the person on that date would bring the start of the proceeding within a limitation period applying to the person.
31․The combined effect of rr 220 and 242 is that when an order is made amending the claim to include the proposed defendants pursuant to rr 220, the proceeding against each of the proposed defendants is taken to have started on the date of the order. Having regard to the date of the plaintiff’s injury, and regardless of whether s 16A or s 16B of the Limitation Act applies, the claim against each of the proposed defendants would, at least on a prima facie basis, be out of time.
32․Rule 502 is headed “Amendment—of documents”. It applies to the amendment of an originating process, a pleading, an application or any other document filed in the court during a proceeding. Leave may be given at any time, including during or after a hearing has occurred: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [4]; Woden Valley Glass v Psaila (1993) 44 FCR 140 at 150. The court has a discretion to amend in the way that it considers appropriate. Mistakes in the name or identity of a party are dealt with specifically at r 502(4). In those circumstances the court must give leave even if the effect of the amendment is the substitution of a party.
33․Rule 503 is headed “Amendment—after limitation period”. The rule provides for a narrower path to amendment than that envisaged under r 502, where the circumstances of the case are that a limitation period that was current when the originating process was first filed has since passed. Noting that generally, an amendment to a document under Part 2.7 of the CPR, pursuant to r 514, takes effect on and from the date of the document that is amended, there is a substantive basis for greater limitation of the circumstances in which amendment will be permitted after a limitation expiry.
34․I have approached the plaintiff’s application on the basis that a relevant period of limitation, current at the date the proceeding was started, has now ended. In taking that approach, I am mindful that under each of s 16A and s 16B of the LimitationAct there may be pathways available to the plaintiff to argue otherwise; however, those matters were not raised in the context of this application.
35․The plaintiff is therefore in a position where the proposed amendment, seeking as it does to correct a mistake in the name or identity of a party, must satisfy the requirements of r 503(2).
Applicable legal principles
36․As Crowe AJ observed in Beta ACT Pty Ltd as Trustee for the Brendas Family Trust v FTI Consulting Pty Ltd [2021] ACTSC 293 at [75]:
… the distinction between the type of mistake which enlivens the power given by a provision such as r 503 and one which does not suffice to enliven that power can be difficult to elucidate.
37․Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; 173 CLR 231 (Bridge) remains the leading authority on this point. When considering the decision in Bridge, it is important to note that the provision under consideration in Bridge was distinct from r 503(2) in that Bridge was concerned with a “mistake in the name of the party” as opposed to a “mistake in the name or identity of a party”. However, the reasoning of the High Court in Bridge indicates that the distinction with r 503(2) is of little moment.
38․The factual matrix in Bridge was helpfully summarised by Mossop J in Cooke at [16]:
In that case the plaintiff, a cigarette company, had engaged Bridge Shipping Proprietary Limited (Bridge) to arrange for the carriage of tobacco from Brazil to Melbourne. Bridge employed another company to arrange the carriage and was unaware of the selected carrier. The goods were transported on a vessel named “Green Sand”. The bills of lading did not name the carrier. Some of the tobacco went missing and some was damaged during transit. The tobacco company sued Bridge in the Supreme Court of Victoria. Bridge issued a third-party notice against Grand Shipping SA (Grand). That was the company identified on the Lloyd’s Register as the registered owner of the vessel that carried the tobacco. After the expiry of the limitation period, Bridge discovered that Grand had chartered the vessel to Rainbow Lines SA (Rainbow) and that Rainbow had been the carrier of the goods rather than Grand. Bridge applied under the relevant court rule to substitute Rainbow as a party for Grand. The relevant rules permitted a “mistake in the name of the party” to be corrected even if the effect was to substitute another person as a party. Where an order to correct a mistake was made, the proceeding was taken to have been commenced against that person on the day when the proceedings were commenced. As a consequence, an order made under the rule would have had the effect of avoiding the limitation problem facing Bridge which would have arisen if a joinder of Rainbow only took effect on the date of the order.
39․The amendment in Bridge failed because the mistake of the plaintiff was not in respect of the name (or identity) of the party to be sued. The mistake in Bridge was concerned with who in fact should be sued. The difficulty for the plaintiff was summarised by McHugh J, with whom Brennan and Deane JJ agreed, at 262:
Bridge made no mistake as to description of the party which it wished to sue. It intended to sue the owner and did so. Bridge's mistake was not one of misnomer, clerical error or misdescription. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description. The present case is different, therefore, from Lloyd Steel where Clarke J. accepted that the plaintiff's solicitor had “instituted the proceedings because he believed, as a result of his searches of the Lloyd's Register, that the first named defendant in each case was the carrier”. The mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not a mistake “in the name of a party”.
(Footnote omitted.)
40․In Cooke, applying the approach in Bridge, Mossop J observed at [23]:
… a person may make a mistake “in the name of a party” when either:
(a) the plaintiff can identify the person but, mistakenly believes that the person so identified bears a certain name; or
(b) when the plaintiff knows a person by a particular description, for example, the driver of a certain car, but the plaintiff is mistaken as to the name of the person who answers that description.
41․As to whether substitution of a new party within the meaning of r 503(2) mandates the removal of one party from the proceeding and the replacement of that party with another, there is some debate in the decisions considering similar provisions in other jurisdictions: see Greenwood v Papademetri [2007] NSWCA 221 at [64]-[85].
42․In my view, whilst it may usually be expected that in a case where there has been a mistake about the name of an entity meeting a particular description (as in this case), that there would be a strict substitution of one party for another, that will not always be so. The rule does not require that there be a substitution before the requirements for an amendment correcting a mistake are satisfied.
Is there a genuine mistake to be corrected? – r 503(2)(b)(i)
43․Returning to the facts of this case, the following matters are established by the evidence and the pleadings:
(a)The building was constructed by the named defendant;
(b)The building was new, with the works having been completed in February 2022;
(c)The plaintiff allegedly fell in the common property area of the building on 4 April 2022;
(d)The plaintiff was at the site in his role as a project manager/installer of window coverings;
(e)The items on which he fell appeared to be in the nature of building materials and were positioned on a pedestrian walkway;
(f)A units plan was registered for the building and the body corporate, whereby responsibility was allocated for the common property under the units plan. The units plan was only established on 23 March 2022, less than 2 weeks before the subject incident;
(g)In the circumstances the plaintiff identified the defendant as the occupier of the premises in possession and control of the site;
(h)In the statement of claim originally filed on the plaintiff’s behalf the named defendant was sued in its capacity as “occupier of the construction site”, with “exclusive care control and responsibility for the construction site”;
(i)It was not until a defence was filed in the proceedings on 3 April 2025 that the plaintiff became aware that care, control and responsibility for the site had passed to the potential defendants; and
(j)In the proposed amended claim, the allegations of occupation and exclusive care, control and responsibility for the site are withdrawn as against the named defendant and applied against the proposed defendants.
44․I am of the view that the plaintiff in this case intended, in instituting these proceedings, to pursue the person meeting the description of occupier, with exclusive care, control and responsibility for the site. Given the recency of completion of the building works and the nature of the material on which the plaintiff fell, it is understandable that his mistaken view as to the identity of the occupier was formed. In the circumstances he made a genuine mistake about the identity of the party intended to be sued.
Was the mistake misleading or likely to cause any reasonable doubt? – r 503(2)(b)(ii)
45․In Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd [2024] ACTSC 352 at [33], Baker J described this part of the test in r 503(2) as the objective component, and noted that it had received relatively little judicial consideration. Her Honour cited with approval the statements of the relevant test in Brown v Jammal [1995] NSWCA 62 (Brown v Jammal) and Brando Aus Holdo Pty Ltd v Gary Shayne as representative of the persons identified in Schedule 1 [2021] NSWSC 998 at [72(b)].
46․In Brown v Jammal at 9, Kirby P observed that the test to be applied was the response of “the reasonable reader to receiving the document containing the ‘mistake’”.
47․Perhaps the clearest indication of the response of the reasonable reader to receiving the document containing the mistake in identity is in the content of the defence filed by the named defendant. The defendant seeks to absolve itself of responsibility for the plaintiff’s injury by:
(a)Denying that it had exclusive care, control and responsibility for the site;
(b)Asserting that the building works were completed, and the site had been returned to the entity that engaged it;
(c)Asserting that care, control and responsibility for the site had passed to the body corporate prior to the date of the plaintiff’s injury.
48․There can be little doubt that the named defendant understood that it was the plaintiff’s intention to pursue the occupier and controller of the site and that the named defendant was not that person.
49․I am therefore satisfied that the mistake was not misleading or likely to cause any reasonable doubt about the identity of the person intended to be sued.
Addressing matters raised by the proposed defendants
Site identity
50․The plaintiff contends that the mis-description of the property address in the initial PICN served on the proposed defendants in April 2025, as 55 Cooyong Street, was a typographical error. On the basis that the originating process filed in February 2024 identified the property address correctly, I accept that explanation.
Non-compliance with CLW Act
51․The plaintiff has failed to comply with s 51 of the CLW Act in respect of the timing of service of its personal injury claim notification on the proposed defendants. No complaint is raised at this time as to the content of the document.
52․The reason for its late service is self-evident. The question for present purposes is what consequences flow from the non-compliance. The recent line of authorities in this court, including Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162, raise for consideration whether leave is required to commence or continue the proceedings against the proposed defendant. In this case as the parties have placed no evidence before me concerning a non-compliance with ch 5 of the CLW Act, other than the matter identified above that has now been addressed with the service of an amended PICN, I do not consider the identified non-compliance to be a matter weighing against the granting of leave. It will remain open for the proposed defendants to ventilate any non-compliance matters, by way of application in proceeding, once they are included as a party to the proceeding.
Failure to obtain an earlier title search
53․I accept that there is at least a possibility that the obtaining of a title search at an earlier time would or should have alerted the plaintiff and his legal advisors to the prospect of a mistake as to the identity of the occupier of the site. In my view that failure is relevant to the question of costs and prospectively relevant to whether it is appropriate to permit the amendment.
Is it appropriate to permit the amendment? – r 503(2)(a)
54․The amendments sought to be made are significant for the plaintiff’s case. Based on the limited material that has been placed before me, real issues in the substantive proceeding may include:
(a)Who was responsible for the placement of the tripping hazard in a pedestrian walkway;
(b)Was it unreasonable for the hazard to have remained there for whatever period it had been present prior to the plaintiff’s fall; and
(c)What systems did the occupier of the site have in place for the management of tripping hazards and, more generally, the identification of risks presented by the condition of the site.
55․In those circumstances, allowing the plaintiff to pursue a claim against the party identified as the occupier of the site at the relevant time is likely to have a significant bearing on the prospects of his claim.
56․The delay in identification of the occupier is significant and is not well explained, given the prospect that a title search undertaken prior to the commencement of proceedings would likely have placed the plaintiff’s advisors in a better position to identify the proper respondents to the claim. Regrettably from the perspective of the prospective defendants the delay appears in no small part to rest with the management of the claim by the defendant. A defence filed in accordance with the rules that contained the same alerts for the plaintiff as that which was filed in April 2025 would have alerted him to the present difficulty at a time when the inclusion of additional parties in this proceeding was a more straightforward matter.
57․In the absence of any evidence before me of actual prejudice suffered by the proposed defendants as a consequence of the delay in their inclusion in the proceeding, and after weighing the other considerations identified above, I am of the view that this is a matter in which it is appropriate to permit the amendment.
Costs
58․The subject units plan was registered on or about 25 March 2022. A search of the title for the property at any time after that date should have alerted the plaintiff’s solicitors not only to the existence of a unit titles arrangement affecting the subject property at the time of the plaintiff’s incident, but also to the possibility, if not probability, that they were mistaken about the identity of the occupier of the site at the relevant time. The originating process was not filed until February 2024.
59․The defence alerting the plaintiff to his mistake about the identity of the occupier was not filed until 3 April 2025, one day prior to the expiry of the prima facie limitation period.
60․Of the two proposed defendants, only UP 15367 was represented at the hearing of the application, and their opposition to it was unsuccessful.
61․In those circumstances the appropriate order is that each of the parties bear their own costs of and incidental to the application.
Orders
62․For these reasons I make the following orders, pursuant to r 503(2) of the CPR:
(1)The plaintiff is granted leave to file a second further amended originating claim within 14 days from the date of this order;
(2)The plaintiff is granted leave to file a second further amended statement of claim, in the form of Annexure M to the affidavit of Angela Omari sworn on 9 July 2025, within 14 days from the date of this order;
(3)Each party is to bear its own costs of the application.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: |
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