NSW Amateur Soccer Federation v Gemallas

[1999] NSWCA 86

CITATION:	NSW AMATEUR SOCCER FEDERATION v GEMALLAS [1999] NSWCA 86
FILE NUMBER(S):	CA 40295/98
HEARING DATE(S):	18 March 1999
JUDGMENT DATE:	9 April 1999
PARTIES :	NSW Amateur Soccer Federation - A Emmanuel Gemallas - R
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Giles JA at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1804/94
LOWER COURT JUDICIAL OFFICER:	Tapsell ADCJ

COUNSEL:	A D M Hewitt - A P D Kennedy-Smith - R
SOLICITORS:	Sparke Helmore - A Photios Vouroudis & Co - R
CATCHWORDS:	PRACTICE AND PROCEDURE; DISTRICT COURT; STATEMENT OF CLAIM; AMENDMENT; NAME OF DEFENDANT; WHETHER AMENDMENT PURSUANT TO PT 17 OF DISTRICT COURT RULES HAD EFFECT OF DISCONTINUING PROCEEDINGS AGAINST DEFENDANT WHOSE NAME REMOVED BY AMENDMENT
ACTS CITED:	District Court Act 1973 Limitation Act 1969
CASES CITED:	McGee v Yeomans (1977) 1 NSWLR 273 Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd (1998) 44 NSWLR 371 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 "Al Tawwab" [1991] 1 Lloyd's Rep 201 at 207
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40295/98
DC 1804/94

HANDLEY JA
SHELLER JA
GILES JA

NSW AMATEUR SOCCER FEDERATION LIMITED v GEMALLAS

The respondent was a referee at a soccer match in 1988 and was allegedly assaulted by spectators and players after the match concluded, causing him to suffer injury, loss and damage.

By ordinary statement of claim the respondent commenced proceedings against three defendants, the first of which was described as the “NSW Amateur Soccer Federation”. The respondent was subsequently informed by the solicitor for the NSW Amateur Soccer Federation (the Amateur Federation) that the soccer match in question had not been held under the auspices of that Federation, but under those of the NSW Soccer Federation Limited (the Federation).

In 1994, an amended ordinary statement of claim was filed, unchanged except for the removal of the Amateur Federation’s name and the Federation’s name substituted for it. However, the back sheet of the amended statement did not refer to its amendment and still noted the Amateur Federation as the first defendant.

The solicitor for the Amateur Federation then wrote the respondent’s solicitor informing him that the soccer match in question was indeed run under the auspices of the Amateur Federation and apologising for his mistake.

Nothing more was done until 1995 when the respondent engaged a new solicitor who wrote to the Amateur Federation requesting its consent to be rejoined as a defendant in the proceedings. No reply was received.

An application was made to Tapsell ADCJ requesting that the title of the action be amended to restore the word “Amateur” to the name of the first defendant. His Honour instead held that the Amateur Federation had never ceased to be a party to the proceedings and consequently declared that it was still a defendant and that there had been no discontinuance of the proceedings against it.

The Amateur Federation appealed against this decision. By way of notice of contention, the respondent sought to amend the statement of claim under Pt 17 r1 of the District Court Rules to substitute the name of the NSW Amateur Soccer Federation for that of the NSW Soccer Federation Limited.

Held:
By Sheller JA, Handley and Giles JJA agreeing:
(1) Section 159(1) of the District Court Act 1973 did not operate to preclude the amended statement of claim from adding the NSW Soccer Federation Limited as the first defendant and deleting the NSW Amateur Soccer Federation as a defendant.
(2) The filing of the amended statement of claim removed the NSW Amateur Soccer Federation as the first defendant and replaced it with the NSW Soccer Federation Limited, even though there was no formal discontinuance against it under Pt 18 of the District Court Rules.
(3) It is plain from the statement of claim that the respondent always intended to sue the person by which, or under whose auspices, the relevant competition was conducted. The only question was the correct name of that person. Therefore, this is a proper case where an order under Pt 17 r1 of the District Court Rules to substitute the name of the NSW Amateur Soccer Federation for that of the NSW Soccer Federation Limited should be made. Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 at 261 applied.
Cases Cited
Al Tawwab [1991] 1 Lloyd’s Rep 201
Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231
McGee v Yeomans (1977) 1 NSWLR 273
Nikolay Malakhov Shipping Co Limited v SEAS Sapfor Ltd (1998) 44 NSWLR 371

ORDERS
1. Appeal allowed;

2. Set aside the declaration made by Acting Judge Tapsell on 27 March 1998 that the New South Wales Amateur Soccer Federation Limited was still a defendant to the proceedings;
3. In lieu thereof, order that the plaintiff have leave within twenty-one days of the date of this judgment to file an amended statement of claim substituting the name of the respondent, NSW Amateur Soccer Federation Limited, for the NSW Soccer Federation Limited as first defendant in the proceedings;
4. The appellant to pay the respondent’s costs of this appeal.

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40295/98
DC 1804/94

HANDLEY JA
SHELLER JA
GILES JA

Friday, 9 April 1999

NSW AMATEUR SOCCER FEDERATION LIMITED v GEMALLAS

JUDGMENT

1 HANDLEY JA: I agree with Sheller JA.
2 SHELLER JA: On 30 July 1988 Emmanuel Gemallas, the plaintiff, refereed an Under 16 soccer game at Barton Park, Rockdale. After the game was over he alleges he was assaulted by spectators and players and suffered injury, loss and damage. By an ordinary statement of claim filed on 6 April 1994 he began proceedings in the District Court, No 1804 of 1994, against three defendants of which the first was described as “NSW Amateur Soccer Federation Limited, 482 Meurants Lane, Park Lea [sic] 2148” (the Amateur Federation). The second and third defendants were St George Budapest Soccer Club Limited and Rockdale-Illenden Soccer Club. In the statement of claim he alleged that the game was between the respective teams of the second and third defendants and “[t]he relevant competition was conducted by or under the auspices of the first defendant”.
3 On 28 April 1994 the solicitor for the Amateur Federation wrote to the plaintiff’s solicitors, Photios Vouroudis & Co, advising, as a matter of courtesy:
“….that the soccer game in which your client was injured was run under the auspices of the NSW Soccer Federation Limited and not my client.

I would be pleased if you would confirm that you will discontinue the action referred to in the Statement of Claim issued against my client.”
I shall refer to the NSW Soccer Federation Limited as “the Federation”.

4 On 23 May 1994 the solicitor for the Amateur Federation wrote to the plaintiff’s solicitors referring to the letter of 28 April 1994 and asking for confirmation that the plaintiff had either discontinued its action against the first defendant or amended the statement of claim to name the proper defendant.
5 On 6 June 1994 the plaintiff’s solicitors wrote to the solicitor for the Amateur Federation as follows:
“We refer to your letter dated 23 May 1994 and advise that we are presently attending to filing an amended Statement of Claim in this matter.”
6 On 20 June 1994 the plaintiff’s solicitors filed in the District Court in proceedings No. 1804 of 1994 a document the body of which was headed “Amended Ordinary Statement of Claim amended pursuant to Pt 17 rule 2”. The Amateur Federation’s name had been removed and “NSW Soccer Federation Limited, 235 Meurants Lane, Park Lea [sic] 2148” substituted for it. The statement of claim was otherwise unchanged except that it was dated “20.06.94”. However, the back-sheet of this “amended” statement of claim did not refer to its amendment and still showed the Amateur Federation as the first defendant.
7 On 30 June 1994 the solicitor for the Amateur Federation wrote to the plaintiff’s solicitors:
“I refer to previous correspondence and must apologise for the fact that I misled you as to the identity of the State body, which is being named as a defendant. I am instructed that the second and third defendants were affiliates of my client, being members of the St George Association…..”
8 According to the appellant’s chronology, on 6 November 1997 the plaintiff discontinued proceedings against the first defendant described as “NSW Soccer Federation Limited”.
9 In about March 1995 Stephen Nathan Spinak, solicitor, received instructions to take over the proceedings on behalf of the plaintiff. On 25 February 1997 he wrote to the Amateur Federation and requested it to consent to being rejoined as a defendant in the proceedings. He said that he received no reply and so he wrote again on 14 July 1997. Again he received no reply.
10 On some date, probably in January 1998, Mr Spinak filed a notice of motion seeking to have the time extended for the plaintiff to commence proceedings against the Amateur Federation. This came before Acting Judge Tapsell. There is no indication from the form of the notice of motion that the Amateur Federation was a party to this application though counsel shown in the transcript as appearing “for the Defendant” took no point about this and opposed the application apparently on behalf of the Amateur Federation. On 27 March 1998, after the application had been amended to one to amend the title of the action to restore the word “Amateur” to the name of the first defendant, his Honour held that the Amateur Federation had never ceased to be a party to the proceedings and that, although the notice of motion was to make a further amendment to the pleading, he would simply declare that the Amateur Federation was still a defendant and that there had been no discontinuance of the proceedings against it. The proceedings were to continue on that basis. The Amateur Federation has appealed from this decision.
11 Part 18 of the District Court Rules 1973 in the form they took during 1994 (the District Court Rules) provided for the withdrawal and discontinuance of proceedings before a praecipe for trial had been filed in the action without the consent of any party or leave of the court by filing a notice in accordance with r4. The praecipe for trial was a procedure, since abandoned in actions commenced after 1 January 1996, by which the plaintiff gave notice that the matter was ready for trial. Rule 5 required a party filing a notice under r4, on the day of filing or as soon as practicable thereafter, to serve the notice on each other party. However, the plaintiff’s solicitors did not choose to follow the discontinuance procedure.
12 Part 17 of the District Court Rules was headed “Amendment”. Rule 1 gave the Court a general power at any stage of any proceedings on the application of any party or without such application to order on terms that any document in the proceedings be amended in such manner as the Court thought fit. Subrule (3) provided that where there had been a mistake in the name of a party, subrule (1) applied to the person intended to be made a party as if he were a party.
13 Rule 2 was headed “Amendment of pleading without leave”. So far as presently relevant, it provided as follows:
“2. (1) A party may, without leave, amend any pleading of his once at any time before a praecipe for trial is filed in the proceedings.

(1A) A party pleading may, subject to subrule (1B), by consent of the parties amend the pleading at any stage of the proceedings.
(1B) Subrule (1A) does not apply to an amendment which would have the effect that a person is added as, is substituted for, or ceases to be a party.
……..
(3) The rights to amend under subrules (1A) and (2) are in addition to the right to amend under subrule (1).”
Subrule (2) enabled a defendant who had served notice of his grounds of defence to amend the notice if the plaintiff amended his notice of statement of claim.

14 Subrule (1B) assumed that subrule (1A) would otherwise enable a party by consent to amend the pleading at any stage of the proceedings so that a person was added as, was substituted for, or ceased to be, a party. There is no reason to read subrule (1) as not enabling a party without leave to amend any pleading once at any time before a praecipe for trial by adding, substituting or deleting a party; compare McGee v Yeomans (1977) 1 NSWLR 273 at 278 and following.
15 Part 17 r 3 provided as follows:
“3. (1) Where a party amends his pleading under rule 2 (1), the Court, on application by an opposite party, may, on terms, but subject to subrule (2), by order disallow the amendments.

(2) Notice of a motion under subrule (1) shall be filed and served within fourteen days after the date of service on the applicant under rule 9.
(3) Where, on the hearing of an application under subrule (1), the Court is satisfied that, if an application for leave to make the amendment had been made under rule 1 (1) on the date on which the amendment was made under rule 2 (1) the Court would not have given leave to make the whole or some part of the amendment, the Court shall disallow the amendment or that part, as the case may be.”

16 Rule 4 provided as follows:
“(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (2), (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.

….
(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
…..
(6) This rule does not limit the powers of the Court under rule 1.”

17 Rule 7 provided as follows:
“(1) Where the amendments authorised under this Part to be made to a document are not so numerous or lengthy or otherwise of such nature as to render the document difficult or inconvenient to read, the amendments may be made by writing the alterations in the document.

(2) A filed document amended under this rule should be marked with a statement specifying the date of the amendment and:
(a) where the amendment is made pursuant to an order, the date of the order; or
(b) where the amendment is made by a party without leave, a reference to the rule authorising the amendment.
(3) The marking mentioned in subrule (2) shall:
(a) where the amendment is made pursuant to an order, be carried out by the registrar and sealed with the seal of the Court; or
(b) where the amendment is made by a party without leave, be carried out by the party and initialled by him.”

18 Rule 8 provided as follows:
“8. Subject to subrule 7 (1), amendments authorised under this Part to a filed document shall be made by filing a fresh document, amended as so authorised, and bearing a statement specifying the matters mentioned in rule 7 (2).”
19 Rule 9 provided as follows:
“9. Where a document has been served and is afterwards amended, the party who filed the document shall, on the day on which the amendment is made, or so soon thereafter as is practicable, serve on the parties on whom the document was served:

(a) if the amendment is made under rule 7 - a notice specifying the amendment and the rules mentioned in rule 7 (2); or
(b) if the amendment is made under rule 8 - the fresh document.”
Rules 7, 8 and 9 do not apply to the correction of a clerical mistake or error arising from an accidental slip or omission.

20 Rule 11 provided as follows:
“11. Where a party amends a document under this Part, with or without leave, he shall, unless the Court otherwise orders, pay the costs of any other party of and occasioned by the amendment.”
21 It is useful to summarise the effect of Pt 17 so far as relevant to this appeal. Before the praecipe for trial was filed, the plaintiff could, without leave, amend his pleading once by adding the Federation as a party or substituting the Federation as a party for the Amateur Federation. This could be done by filing a fresh document as authorised under Pt 17 provided it bore a statement specifying the matters mentioned in rule 7 (2), that is to say, a statement specifying the date of the amendment initialled by the party and a reference to the rule authorising the amendment. There was some question as to whether this procedure was adhered to. The amended statement of claim did not specify the date of the amendment initialled by the plaintiff though it did refer to the rule authorising the amendment.
22 Section 159 (1) of the District Court Act 1973 provides that a failure to comply with any requirement of the rules in any respect shall be treated as an irregularity and shall not nullify any step taken in the proceedings or any document in the proceedings. I do not think any irregularity in the form of the amended statement of claim deprived it of the effect of adding the Federation as the first defendant and deleting the Amateur Federation as a defendant. There is no evidence one way or another as to whether rule 9 was complied with in the sense that on the day the amendment was made, or so soon thereafter as was practicable, the amended statement of claim was served on the Amateur Federation because it was a party on whom the original statement of claim was served. Nothing could be made of this point. In the result, in my opinion, the filing of the amended statement of claim removed the Amateur Federation as a party even though there was no formal discontinuance against it under Pt 18. Accordingly, the trial Judge erred in declaring that the Amateur Federation had never ceased to be a party to the proceedings and was still a defendant.
23 By a notice of contention, which should, I think, strictly be a notice of cross-appeal, though no point is taken about that, the plaintiff seeks an order now to amend the statement of claim under Pt 17, r 1 on the basis that there has been a mistake in the name of a party, that is to say, that the plaintiff intended to sue the body by and under whose auspices the relevant game was being conducted. Having sued the appellant Amateur Federation and then been induced by it mistakenly to believe that the name of the party under whose auspices the game was being conducted was the Federation, the plaintiff now wishes to amend to substitute the Amateur Federation’s name for the Federation’s name. The Amateur Federation has not suggested any prejudice other than that it will lose the benefit of an accrued defence under the Limitation Act 1969. Traditionally the Court would not allow a party to be added as a defendant to an existing action if the claim sought to be made against the added party was already statute barred and that party wished to rely on that defence; see generally Nikolay Malakhov Shipping Co Limited v SEAS Sapfor Limited (1998) 44 NSWLR 371 at 391. However, rules such as Pt 17 r 4 were designed to permit a party to be added in those circumstances “not only [in] cases of misnomer, clerical error and misdescription but also [in] 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 answers that description”; Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 at 261 per McHugh J, with whose judgment Brennan J and Deane J agreed.
24 At 262 McHugh J quoted with approval what was said by Lloyd LJ (as he then was) in the “Al Tawwab” [1991] 1 Lloyd’s Rep 201 at 207. Lloyd LJ said:
“In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 the identity of the person intended to be sued was the plaintiff’s employers. In Evans v Charrington [1983] QB 810 it was the current landlord. In Thistle Hotels v McAlpine Unreported; Court of Appeal; 6 April 1989 the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard [1988] 2 Lloyd’s Rep 274 it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise.”
25 It is plain from the statement of claim, as the Amateur Federation’s solicitor recognised in 1994, that the plaintiff intended to sue the person by which, or under whose auspices, the relevant competition was conducted. About that no one, including the Amateur Federation’s solicitor, was in any doubt. The only question was the correct name of that person. In my opinion it is a proper case for the orders sought to be made.
26 Acting Judge Tapsell made no order as to the costs of the notice of motion as amended before him. I would not disturb that order. Although successful on its appeal, in substance, the appellant failed in resisting the respondent’s attempts to have it restored as a defendant. Despite various unexplained delays by those acting for the respondent, it was the appellant’s solicitor who told the respondent’s solicitors that they should take the course they did. This required an application to the court which the appellant then resisted. In my opinion, the appellant should pay the respondent’s costs of the appeal.
27 In my opinion, the following orders should be made:
1. Appeal allowed;

2. Set aside the declaration made by Acting Judge Tapsell on 27 March 1998 that the New South Wales Amateur Soccer Federation Limited was still a defendant to the proceedings;
3. In lieu thereof, order that the plaintiff have leave within twenty-one days of the date of this judgment to file an amended statement of claim substituting the name of the respondent, NSW Amateur Soccer Federation Limited, for the NSW Soccer Federation Limited as first defendant in the proceedings;
4. The appellant to pay the respondent’s costs of this appeal.

28 GILES JA: I agree with Sheller JA.

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