O'Rourke v Bonney Downs Pastoral Company Pty Ltd
[2016] WADC 104
•11 JULY 2016
O'ROURKE -v- BONNEY DOWNS PASTORAL COMPANY PTY LTD [2016] WADC 104
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 104 | |
| Case No: | CIV:465/2015 | 28 JUNE 2016 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 11/07/16 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| PDF Version |
| Parties: | STUART O'ROURKE BONNEY DOWNS PASTORAL COMPANY PTY LTD BONNEY DOWNS STATION PETER GOYDER ERICA GOYDER GOLDER ASSOCIATES PTY LTD BC IRON NULLAGINE PTY LTD |
Catchwords: | Amendment to correct the name of a party Genuine mistake |
Legislation: | Rules of the Supreme Court 1971 O 21 r 5(3) |
Case References: | Alinta 2000 Ltd v Petkov [2012] WASCA 258 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
BONNEY DOWNS PASTORAL COMPANY PTY LTD
First defendant
BONNEY DOWNS STATION
Second defendant
PETER GOYDER
Third defendant
ERICA GOYDER
Fourth defendant
GOLDER ASSOCIATES PTY LTD
Fifth defendant
BC IRON NULLAGINE PTY LTD
Sixth defendant
Catchwords:
Amendment to correct the name of a party - Genuine mistake
Legislation:
Rules of the Supreme Court 1971 O 21 r 5(3)
Result:
The application is dismissed
Representation:
Counsel:
Plaintiff : Mr H Papenfus
First defendant : Mr H O'Sullivan
Second defendant : Mr H O'Sullivan
Third defendant : Mr H O'Sullivan
Fourth defendant : Mr H O'Sullivan
Fifth defendant : No appearance
Sixth defendant : Mr J Duffy
Solicitors:
Plaintiff : Shine Lawyers
First defendant : SRB Legal
Second defendant : SRB Legal
Third defendant : SRB Legal
Fourth defendant : SRB Legal
Fifth defendant : Not applicable
Sixth defendant : Gilchrist Connell
Case(s) referred to in judgment(s):
Alinta 2000 Ltd v Petkov [2012] WASCA 258
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45
1 PRINCIPAL REGISTRAR MELVILLE: The plaintiff seeks damages from a number of defendants for personal injuries suffered on or about 13 April 2012 when the plaintiff ruptured his Achilles tendon when stepping off some decking at a donga where he was staying as part of employment on an adjacent mine. This action was commenced by the issue of a writ on 12 February 2015.
2 By way of chamber summons dated 26 May 2016 the plaintiff seeks orders that the name of the first defendant be amended from Bonney Downs Pastoral Company Pty Ltd (ACN 159218818) so as to read WDC Contracting Pty Ltd. The plaintiff seeks to re-amend the writ of summons and re-amend the statement of claim to reflect this change.
3 Bonney Downs Pastoral Company Pty Ltd and WDC Contracting Pty Ltd are two separate legal entities. They are not the same company differently described.
4 The application is supported by an affidavit of Mr Heine Papenfus sworn 24 June 2016.
The law
5 An application to amend the name of a party may be brought pursuant to O 21 r 5(3) of the Rules of the Supreme Court 1971:
An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistakes sought to be corrected was a genuine mistake and it was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
6 Among other submissions made by the solicitors for the first defendant, it was said that the amendment should not be permitted because there has been no genuine mistake made by the plaintiff.
7 In Alinta 2000 Ltd v Petkov [2012] WASCA 258, the Court of Appeal said [95]:
In order to grant leave under O 21 r 5 to correct the name of the defendant, the court must, at least ordinarily, be satisfied that: (1) the mistake sought to be corrected was a genuine mistake; (2) the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; and (3) it is just to make the amendment: Carter v O'Connell [25]; Rodriguez v R J Parker (Male) [1967] 1 QB 116, 139; Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810, 821, 824.
8 More particularly, in discussing what was contemplated by genuine mistake the Court of Appeal referred to the decision of McHugh J in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45. There it was made clear that the rule is intended to deal with cases of mistaken identity, by way of example, the plaintiff although intending to sue a person who the plaintiff knows by a particular description, e.g the driver of a certain car, is mistaken to the name of the person who answers the description.
9 The Court of Appeal also observed that the power to correct the mistake included cases of misnomer and misdescription, typographical or clerical errors and the like.
10 The Court of Appeal said [32]:
When the writ of summons was prepared and filed at the court, the plaintiff will have made a choice as to the identity of the person to be sued. If the plaintiff, having made that choice, uses the wrong name for the defendant in the writ, the mistake as to the name may be corrected even though the name used may be a different legal entity from the person intended to be sued. The plaintiff cannot, however, change or reverse the plaintiff's original choice as to the identity of the person to be sued. See International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Lloyd's Rep 474 where Evans LJ (Peter Gibson LJ & Sir Iain Glidewell agreeing) said:
This interpretation of the rule derives not only from the phrase 'correct the name of a party' but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue [or, as the case may be, intended to be sued] (480).
11 It is apparent from the affidavit filed in support of the application by Mr Papenfus that the plaintiff had originally commenced proceedings against Bonney Downs Pastoral Company Pty Ltd by way of a writ of summons filed 24 July 2013 being District Court action 2372 of 2013. These proceedings were subsequently discontinued on 20 June 2014 after the plaintiff's solicitors received correspondence from the solicitors for Bonney Downs Pastoral Company Ltd that it was not incorporated until after the date of accident on 13 April 2012.
12 As observed above, the writ of summons in this matter was issued on 12 February 2015 and again named Bonney Downs Pastoral Company Pty Ltd as a defendant.
13 At annexure HP19 for the affidavit for Mr Papenfus is an extract from the Australian Securities and Investment Commission's database dated 13 January 2014, some 12 months before this writ was issued. It clearly shows that Bonney Downs Pastoral Company Pty Ltd was registered on 27 June 2012, some 2 1/2 months after the cause of action arose.
14 It is equally apparent from the contents of the affidavit of Mr Papenfus that the plaintiff did not know the identity of the defendant he wished to sue other than by way of a description, the description being set out in the statement of claim as the company which conducted business as a farming enterprise operating the Bonney Downs station situated on the Marble Bar access road and which operated and/or owned and/or maintained and/or managed workers' accommodation on the property in the form of a donga at which the plaintiff was required to reside.
15 In my view it is clear that whilst the plaintiff could not accurately identify by name the occupier of the premises and in that sense it could be said he did not know who it was, he did know who it was not. He knew it was not Bonney Downs Pastoral Company Pty Ltd. Notwithstanding this knowledge, he nevertheless consciously and deliberately named Bonney Downs Pastoral Company Pty Ltd as the first defendant to the action.
16 In those circumstances it cannot be said that the naming of Bonney Downs Pastoral Company Pty Ltd was a genuine mistake as to the identity of the intended defendant.
17 Accordingly, in my opinion the plaintiff's application falls at the first hurdle and it becomes unnecessary to consider whether any alleged mistake was not misleading, or such is to cause any reasonable doubt as to the identity of the party intending to be sued.
18 The application is dismissed.
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