Perry v Minara Resources Limited [No 2]

[2012] WADC 137

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   PERRY -v- MINARA RESOURCES LIMITED [No 2] [2012] WADC 137

CORAM:   BOWDEN DCJ

HEARD:   10 SEPTEMBER 2012

DELIVERED          :   11 SEPTEMBER 2012

FILE NO/S:   CIV 1441 of 2010

BETWEEN:   TAI PHILIP PERRY

Plaintiff

AND

MINARA RESOURCES LIMITED
First Defendant

EUREKA MINE CONSTRUCTIONS PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Leave to amend a writ to substitute a new party - Whether mistake was misleading or such as to cause reasonable doubt as to the identity of the party intended to be sued - Whether it is just to allow the amendment

Legislation:

Rules of the Supreme Court 1971

Result:

Application granted

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts

First Defendant            :     Ms F J Dempster

Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Vertannes Georgiou

First Defendant            :     Jackson McDonald

Second Defendant        :     Not applicable

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Carter v O'Connell [2009] WASC 245

Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

1. BOWDEN DCJ:  The plaintiff appeals a decision of a deputy registrar made on 11 June 2012 refusing his application for leave to amend the name of the first defendant to Murrin Murrin Operations Pty Ltd.

The proceedings

1. The plaintiff claims, inter alia, against the first defendant for injuries, loss and damages resulting from an accident that occurred on 12 November 2007 at the Murrin Murrin mine site allegedly caused by the negligence and/or breach of the statutory duties of the first defendant.

2. The plaintiff says the first defendant owed and breached its duty of care at common law and under the Occupiers' Liability Act 1985 and the Mines Safety and Inspection Act 1994 and pleads against the first defendant that it:

   (a)was the occupier of the mine site within the meaning of s 2 of the Occupiers' Liability Act 1985;

   (b)carried on mining operations within the meaning of s 4 of the Mines Safety and Inspection Act 1994 at the mine site;

   (c)was the principal employer at the mine site within the meaning of s 4 of the Mines Safety and Inspection Act 1994; and

   (d)was responsible for engaging Coates Hire Ltd to supply plant and equipment for hire, including forklifts, for use by persons at the mine site, including the plaintiff.

The alleged work‑related incident

1. The plaintiff alleges that on the date in question he was required to operate a forklift hired by the first defendant from Coates Hire Ltd.  Whilst operating that forklift, under the instructions and supervision of the second defendant, he says he sustained an injury when, having alighted from the forklift, it began moving slowly in reverse and as he reached into it to turn the ignition off he struck a shed upright with his shoulder and right side of the body, and his arm became trapped in the shed upright.

The Limitation Act 2005

1. It is not disputed that the Limitation Act 2005 applies to the plaintiff's claim, so the plaintiff had three years, that is, until 11 November 2010, to commence an action for damages in respect of his injuries (s 14(1) Limitation Act 2005).  The plaintiff commenced the action on 14 May 2010.

2. The writ was within time against the current first defendant but would be out of time against the proposed first defendant, as it is being made a party after the expiration of the limitation period under the Limitation Act.

The power to amend the writ and the general principles

1. The plaintiff makes his application pursuant to O 21 r 5 Rules of the Supreme Court 1971 which provide:

   Amending writ or pleading with leave

   (1)Subject to —

   (a)Order 18 rules 6, 7 and 8; and

   (b)Order 20 rule 19(2) to (5); and

   (c)the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.

   (2)Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.

   (3)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 mistake sought to be corrected was a genuine mistake and 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.

   …

   (5)An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

2. Order 21 r 5 was considered by Le Miere J in Carter v O'Connell [2009] WASC 245.

3. His Honour stated:

   Order 21 r 5(1) of the Rules of the Supreme Court 1971 (WA) provide that, subject to certain other rules, the court 'may at any stage of the proceedings allow the plaintiff to amend his writ'. Rule 5(2) provides that where an application for leave to make the amendment mentioned in [3], [4] or [5] is made after any relevant period of limitation current at the date of the issue of the writ has expired, the court may nevertheless grant such leave if it thinks it just to do so. [19]

   …

   The power conferred by O 21 r 5 to correct the name of a party is remedial and it should be given a beneficial interpretation. It extends to, but is not limited to, misnomers, clerical errors, misdescriptions and cases where the plaintiff intends to sue a defendant of a particular description but is mistaken as to the name of the person or entity who answers that description … [24].

   …

   Before the court will grant leave to the plaintiff to amend his writ to correct the name … the court must be satisfied of three things.  First, that the mistake sought to be corrected was a genuine mistake; second, that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; third, that it is just to make the amendment. [25]

4. As Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 [111], makes clear, applications to amend pleadings or writs should be considered in the context of modern case management principles and whilst Aon emphasises that those principles should not supplant the objective of doing justice between the parties, the waste of public resources, undue delay and the concomitant strain and uncertainty imposed on litigants are all matters that should be taken into account in exercising the discretion as to whether to allow an amendment.

5. The party seeking the amendment bears the burden of persuading the court that the amendment will not cause prejudice to the other party (Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025), although the party opposing an amendment ordinarily bears the evidentiary onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party (Kendall & Curthoys, Civil Procedure Western Australia, [21.5.3]).

6. In exercising the discretion the reasons for any delay in applying for an amendment are to be considered and there does reach a time where the court may consider it is simply too late to allow amendments having regard to all the circumstances and the need for courts to ensure litigation is promoted in an efficient and timely manner (Kendall & Curthoys, [21.5.3]).

The appeal

1. This appeal is a complete review of the matter de novo (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28) as is evidenced by the District Court Rules 2005 (WA) r 5(6) providing that the appeal is 'by way of a new hearing of the matter that was before the Registrar'.

2. The plaintiff relies on five affidavits of Mr Errol Vertannes sworn 14 September 2011, 26 October 2011, 2 November 2011, 12 March 2012 and 7 August 2012.

3. The first defendant relies on the affidavit of Ms Fiona Dempster dated 2 November 2011.

Was the mistake sought to be corrected a genuine mistake?

1. The plaintiff argues they intended to, and did, sue a defendant described by reference to certain inherent characteristics, however, they were mistaken as to the name of the entity who answered the description.

2. The plaintiff's solicitors say that they always intended to take action against the occupier/operator of the Murrin Murrin mine site and believed that the first defendant was that entity.  They say there were documents which confused them as to the name of the occupier/operator of the Murrin Murrin mine site, including documents provided by the first defendant, and whilst they accept that with hindsight it may be argued that had they taken greater care and diligence they may not have made that mistake, that concession does not derogate from the mistake being a genuine mistake (Carter v O'Connell [27]).

3. The first defendant points out that as long ago as August/September 2010 they told the plaintiff that Murrin Murrin Operations Pty Ltd was the correct party to sue and provided documents they say confirmed this and the plaintiff cannot therefore have had a genuine mistake as to who was the occupier/operator of the mine since September 2010.

4. The plaintiff goes to some lengths to show that after they received the information they wrote to the Department of Mines and Petroleum and to the first defendant's solicitors seeking clarification and that some of the documents then provided to them, including the serious incident presentation form, the occurrence report form, the plaintiff's history card, are variously endorsed as coming from the first defendant.  They also point out that the photocopy of one of the documents relied upon by the first defendant as proving that they are incorrectly named (a contract) was not provided in toto but rather with pages missing as only every second page had been photocopied and when that contract was varied, on a number of occasions, it is stamped with the first defendant's name.

5. They say it was only after the Department of Mines provided documents under subpoena to the court, which were inspected on 3 February 2012, that they were able to identify the proposed first defendant as the correct party.

6. At the end of the day I am satisfied that there was a genuine mistake made by the plaintiff's solicitors.  It is not always apparent from the documents who was the correct entity to sue.  It appears the lease of the mine is in one name, the operator is a separate entity and much of the correspondence forwarded to the Department of Mines and the Department of Consumer Protection and Employment was sent in yet another entity's name.

7. I am satisfied there was a genuine mistake over the name of the correct entity.

Was the mistake misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued?

1. The plaintiff say the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the party intended to be sued.

2. They say the particulars pleaded against the first defendant, being breaches of the Occupiers' Liability Act and the Mines Safety and Inspection Act and par 5 of the statement of claim, make it clear the characteristics the first defendant possessed which created their legal liability towards the plaintiff was that of an occupier at the mine site, the operator, the principal employer and 'principal contractor'.

3. They say that the first defendant was under no illusions that it was the occupier, operator, principal employer and/or 'principal contractor' that was to be sued.

4. It seems the first defendant's solicitors quickly recognised this, which is why in August 2010 they notified the plaintiff they had sued the wrong party.

5. It is a pity that the plaintiff did not heed that advice until over 12 months later, however the first defendant was under no misapprehension that it was the mine site's occupier, operator, principal employer and 'principal contractor' that the plaintiff intended to sue.  The mistake was not misleading nor was there any reasonable doubt as to the identity of the person intended to be sued.

Is it just to make the amendment?

1. The plaintiff says to refuse the amendment would significantly prejudice him by depriving him of his action against the mine site's occupier, operator, principal employer and 'principal contractor'.

2. The plaintiff points out that the first defendant and proposed first defendant are covered by the same insurance policy in respect to their potential liability, are related entities with the same registered office, share the same solicitors and are ultimately owned by the same holding company.

3. They say any prejudice to the first defendant can be covered by an appropriate cost order or the second proposed first defendant.

4. The first defendant says they have suffered prejudice as they have been put to the expense of defending this action and the proposed first defendant is prejudiced because it will be a party to litigation after the statute of limitations has expired.

5. Order 21 r 5 specifically contemplates the power to amend extending beyond the expiration of any limitation period.

6. The proposed first defendant is covered by the same insurance policy as the first defendant and shares the same registered office, and is ultimately owned by the same holding company, and shares the same solicitors and cannot be said to be taken by surprise as they were clearly aware, prior to the expiration of the limitation period, of the potential to be named as a party to this action.  I am satisfied it is just to allow the amendment.

7. The orders I make are as follows:

   1.The plaintiff have leave to amend the name of the first defendant in this action to Murrin Murrin Operations Pty Ltd.

   2.The plaintiff pay the costs of the application in any event and any costs of the existing first and second defendants thrown away arising from the amendment.

   3.The costs of the appeal be in the cause.