Praetz v Sodexo Australia Pty Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   PRAETZ -v- SODEXO AUSTRALIA PTY LTD [2023] WADC 48
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   15 FEBRUARY 2023
DELIVERED          :   27 APRIL 2023
FILE NO/S:   CIV 3467 of 2019
BETWEEN:   JOSHUA JOHN PRAETZ
Plaintiff
AND
SODEXO AUSTRALIA PTY LTD
First Defendant
RIO TINTO LTD
Second Defendant

Catchwords:

Practice and procedure - Substitution of a party - Whether Rules of the Supreme Court 1971 (WA) O 21 r 5 is engaged - Whether mistake in naming the party - Whether just to allow amendment

Legislation:

Limitation Act 2005 (WA), s 14
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 18 r 6, O 18 r 8, O 21 r 5

Result:

Application allowed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
First Defendant	:	Ms C Horwood
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	DWL Legal
First Defendant	:	HWL Ebsworth (Perth)
Second Defendant	:	Not applicable

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

Alinta 2000 Ltd v Petko [2012] WASCA 258
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173
Brown v Jammal [1995] NSWCA 62
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139
Evans Constructions Co Ltd v Charrington & Co Ltd [1983] 1 QB 810
Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 218
Lois Nominees Pty Ltd v Hill [2011] WASC 53
O'Rourke v Bonney Downs Pastoral Company Pty Ltd [2016] WADC 104
Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v American Home Assurance Co (1997) 18 WAR 516
Smith v High Energy Service Pty Ltd [2020] WADC 119

PRINCIPAL REGISTRAR MCGIVERN:

Introduction

This is the plaintiff's amended application for orders, pursuant to O 21 r 5 alternatively O 18 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC), amending his writ and statement of claim such as to substitute the named first defendant.[1]
[1] For ease of reference, in these reasons I will refer to the applicant as the plaintiff and the respondent as the first defendant, being their respective positions in the substantive action. In these reasons, except as otherwise provided, all references to rules are references to the RSC.
The action was commenced against the first and second defendants by a writ of summons issued on 10 September 2019. The plaintiff's statement of claim was filed separately the same day. The plaintiff's claim is that he sustained injuries on a mine site in Newman (Mine) when, on 4 September 2017 (Material Date), a bench seat (in the Mine's wet mess area) on which he was sitting collapsed.
The plaintiff says that, since the action was commenced, it has come to the attention of his solicitors that the 'incorrect Sodexo entity' was named on the writ and statement of claim, and the application is to substitute 'Sodexo Australia Pty Limited' with 'Sodexo Remote Sites Australia Pty Ltd' (Proposed Defendant) as the first defendant.
For the reasons that follow, the application is allowed under O 21 r 5.

Relevant procedural history

The plaintiff's claim

As noted above, the action was commenced on 10 February 2019.
In his statement of claim, the plaintiff relevantly pleads that, at the Material Date:
(a)the first defendant:
(i)was (and is) a company registered under the Corporations Act 2001 (Cth);
(ii)carried on a business providing facilities and management services, security and human resource services at the [Mine]; and
(iii)was in control of the Mine including the wet mess area;
(b)the second defendant was:
(i)the operator and occupier and/or had overall control of the Mine; and
(ii)the principal employer of the Mine as defined by the Mines Safety and Inspection Act 1994 (WA) (Mines Act); and
(c)the plaintiff was:
(i)employed as a mobile plant operator by Plummers Project Services Pty Ltd (Plummers); and
(ii)performing work for Plummers as an employee, under the supervision and/or control of the first defendant and/or the second defendant;
(d)by reason of their respective positions, each of the first defendant and second defendant owed the plaintiff a common law duty of care, further and alternatively a statutory duty of care under the Mines Act, not expose him to any hazards or dangers whilst he was working at the Mine; and
(e)the first defendant and second defendant each breached their respective duties to the plaintiff by, in essence, failing to ensure the integrity of the bench seat which collapsed.
The second defendant filed a defence on 29 October 2019 and took no active part in the present application.
The first defendant was served with the writ on 24 September 2019 and entered an appearance on 8 October 2019, but has not filed a defence.
Rather, there was for some time an exchange of correspondence between the various parties (which is considered in more detail later in these reasons[2]), culminating in the plaintiff bringing the present application.

The application

[2] See [26] below.

The application itself has had a long history, with its origin in a chamber summons filed on 28 February 2022, which was subsequently amended on 5 October 2022. Since then:
(a)the application came on for hearing on 25 October 2022 and, on that occasion, the substance of the application was not pressed by the plaintiff and the parties' submissions were directed only to the question of costs;
(b)on 1 November 2022, before a decision on the costs of the application was made, the Court of Appeal delivered its decision in Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd[3] which dealt with issues arising on this application; and
(c)the plaintiff sought a further hearing to address the substance of the application.
[3] Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139 (Collgar) (overturning the primary decision in Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367, delivered on 27 October 2021).
The substantive application was heard on 15 February 2023. Both parties made submissions orally and in writing,[4] and filed affidavits in support of their respective positions.[5]

Limitation period

[4] The plaintiff filed an outline of submissions on 17 October 2022 and 10 February 2023 (respectively, plaintiff's first and second submissions); the first defendant filed outlines of submissions on 4 September 2022, 23 October 2022 and 12 February 2023 (respectively, the first defendant's first, second and third submissions).

[5] The plaintiff filed an affidavit of David Waynes Williams dated 28 February 2022 (Williams Affidavit) and five affidavits of Alison Frances Hagan, respectively dated 12 May 2022, 31 August 2022, 5 September 2022, 8 February 2023 and 13 February 2023 (respectively, the First, Second, Third, Fourth and Fifth Hagan Affidavit). The first defendant filed three affidavits of Erica Stephanie Michie Dobson, respectively dated 31 August 2022, 6 September 2022 and 10 February 2023 (respectively, the First, Second and Third Dobson Affidavit) and an affidavit of Julie Mirisa Barbieri dated 10 February 2023 (Barbieri Affidavit). Additionally, the first defendant filed a draft chronology on 4 September 2022, the plaintiff handed up a document entitled 'Praetz: Key Facts' at the hearing, and each party filed minutes of proposed orders. Subject to par 8 of the Third Dobson Affidavit being struck out, and objection being raised in relation to pars 6 and 7 thereof, all of the affidavit evidence was tendered without objection: ts 3, 15 February 2023.

It is common cause that:
(a)s 14 of the Limitation Act 2005 (WA) (Limitation Act) applies to the plaintiff's claims;
(b)as such, the relevant limitation period is three years from the time the cause/s of action accrued; and
(c)that period expired 'in September 2020'.[6]
[6] Plaintiff's second submissions, par 11; first defendant's first submissions, par 12.

Relevant rules and principles

As noted above, the plaintiff relies on O 21 r 5 and, in the alternative, O 18 r 6 in support of the application.[7]
[7] I note that, except as otherwise provided by the District Court Rules 2005 (WA) (DCR), the RSC apply to actions in this court.
Order 18 r 6(2) relevantly provides that the court may, at any stage of the proceedings and on such terms as it thinks just:
(a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party […].
Order 18 r 8 provides that where an order is made under O 18 r 6, the writ by which the action was begun must be amended accordingly.
Order 21 r 5 (on which the plaintiff principally relies):
(a)was amended on 1 March 2018 (Rule Amendment), the effect of which was to delete and replace the then-extant subrules (2) ‑ (5) with the current subrule (2);
(b)since the Rule Amendment, reads:
Amending writ or pleading with leave
(1)This rule is subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5).
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff’s writ, or any party to amend that party’s pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
The Rule Amendment is noted here because it is a significant contextual element of the case law considered below - in particular, the Collgar decision.

Case law

In Alinta 2000 Ltd v Petkov,[8] which was decided before the Rule Amendment, the Court of Appeal approached the issue of granting leave to substitute the name of a defendant under O 21 r 5 in the following way:
(a)Order 21 r 5 is a remedial provision and should be given a beneficial interpretation (indeed, the widest interpretation which its language will permit);[9]
(b)the express wording of O 21 r 5(3) (as it then stood)[10] required, as a condition of amending the name of a party with the effect of substituting an alternative party, that the court be satisfied that:
(i)the mistake sought to be corrected was a genuine mistake;
(i)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
(iii)it is just to make the amendment;[11]
(c)while each requirement must be satisfied, when they are read together, the fundamental and overriding consideration for a court is whether it is in the interests of justice to grant leave to amend.[12]
[8] Alinta 2000 Ltd v Petko [2012] WASCA 258 (Petkov).
[9] Petkov [17] (Buss JA), citing Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173
[10] Prior to the Rule Amendment, RSC O 21 r 5(3) read: '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'.
[11] Petkov [95] (Murphy JA, Martin CJ agreeing).
[12] Petkov [40], [53] (Buss JA); see also [6] (Martin CJ).
In Belgravia Nominees Pty Ltd v Lowe Pty Ltd,[13] in the context of an application (made prior to the Rule Amendment) to amend a general indorsement on a writ by adding paragraphs to the description of the claim and to the prayer for relief, the Court of Appeal:
(a)held that the expiration of a limitation period does not preclude amendment to a writ under O 21 r 5 if the amendment does not involve the addition of a new cause of action, because:
… limitation defences operate by reference to the commencement of proceedings in relation to a cause of action, and not by reference to subsequent steps in the course of proceedings, unless that subsequent step is seen as the 'commencement' of a proceeding by the addition of a new cause of action[;][14]
and
(b)commented that:
… the only continuing significance of subrules (2) - (5) of O 21 r 5 is to reinforce the proposition that the court should not take an overly rigid or technical approach to the assessment, as a matter of impression and degree, of whether an amendment adds a new cause of action.
[13] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 (Belgravia).
[14] Belgravia [46].
The Rule Amendment was introduced shortly after and in response to the Belgravia decision.[15]
[15] Collgar [23].
In Collgar, the Court of Appeal was concerned with an application (made after the Rule Amendment) to substitute the name of the defendant. In overturning the decision and departing from the reasons of the primary judge,[16] the Court of Appeal decided, in essence, that:
(a)the case was 'on all fours' with Petkov, and the intervening Rule Amendment did not materially alter the principles to be applied or require a different outcome;[17]
(b)the deletion, by the Rule Amendment, of the former subrules (2) - (5) of O 21 r 5 does not provide any basis for reading down the scope of the power in O 21 r 5 as it currently stands (indeed, the Rule Amendment arguably broadened its operation);[18] and
(c)the essential requirement of O 21 r 5 remains that it is in the interests of justice to grant leave to amend and, in approaching that question, the principles and considerations accepted by the court in Petkov continue to apply.[19]
[16] Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367.
[17] Collgar [8].
[18] Collgar [46] - [47].
[19] Collgar [47].
The following principles may therefore be distilled from the authorities:[20]
[20] Which, by reason of the decision in Collgar, include authorities predating the Rule Amendment (albeit read in the context in which they were decided).
(a)If an amendment to the name of a defendant is properly made within O 21 r 5, the amendment does not involve the addition or substitution of a party within the meaning of O 18 r 6. That is because the nature of an amendment under O 21 r 5 involves the correction of a mistake, rather than the substitution of a new party, 'except in a technical or formal sense'.[21]
[21] Collgar [48]-[49]; Lois Nominees Pty Ltd v Hill [2011] WASC 53 [50] - [51], [59], [61]; Brandsma v Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [43] (McLure J) (Brandsma); Bridge Shipping (238) - (239) (Dawson J).
(b)It follows that, as there is no addition of a party or new party substitution involved in an O 21 r 5 amendment, there is no occasion to regard it as having the effect of circumventing a limitation defence.[22]
[22] Collgar [49]. See also Smith v High Energy Service Pty Ltd [2020] WADC 119 [30], [34] ‑ [39] (Smith).
(c)That is because such an amendment is properly characterised as the continuation of an existing proceeding against the intended defendant[23] (with the amendment treated as correcting the mistake ab initio),[24] rather than as the 'commencement of a proceeding'[25] against a new party.
[23] As was reflected in the language of former subrule (3) of RSC O 21 r 5, and incorporated in the reasoning of the Court in Collgar (see, for example, [44]).
[24] Petkov [34] (Buss JA).
[25] As contemplated in Belgravia [46].
(d)The passage of time reflected in any expiration of a limitation period may, however, be relevant to the court's assessment of whether it is just, in the exercise of its discretion, to grant leave to amend.[26]
[26] Petkov [29] (Buss JA), [115] (Murphy JA, Martin CJ agreeing). See further, [22(g)(iii)] below.
(e)The discretion under O 21 r 5 is broad, and should be exercised in accordance with the considerations identified in Petkov,[27] with the overarching consideration being whether it is in the interests of justice to do so.[28] That is, the question of whether it 'may be just'[29] to allow an amendment to a party's name incorporates considerations of whether the applicant has made a 'genuine mistake' in naming the party and, if so, the impact of that mistake on the recipients of the erroneous writ and/or statement of claim.
[27] See [18(b)] above.
[28] Collgar [47].
[29] Within the meaning of O 21 r 5(2), as it now stands.
(f)As to whether there has been 'genuine mistake' in naming a party:
(i)the concept is sufficiently broad to cover not only cases of misnomer, clerical error and misdescription, but also 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, including where such errors are made with fault;[30]
[30] Collgar [44] - [45]; Petkov [17], [27] (Buss JA), [95] - [96], [102] - [105] (Murphy JA, Martin CJ agreeing); Bridge Shipping (259) - (260) (McHugh J); Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA(1985) 1 NSWLR 212 218 (Clarke J) (Lloyd Steel).
(ii)the mistake must relate to the name of the party, rather than to their legal responsibility[31] (that is, the relevant legal relationship with the applicant); and
(iii)the intention of the plaintiff in this regard (that is, as to who the plaintiff intended to sue) must be determined in light of all the surrounding circumstances, including the objective construction of the relevant pleadings.[32]

(g)As to the impact of the mistake on the named and intended defendants:
(i)the mistake should not give rise to a reasonable doubt as to the person intended to be sued;
(ii)the impression of a recipient of the erroneous writ and/or statement of claim should be assessed on an objective basis (that is, based on the response of a reasonable reader, rather than on the subjective response of the named defendant);[33] and
(iii)any prejudice to the intended defendant arising from the mistake should be considered in the overall exercise of the court's discretion.[34]

[31] Petkov [31] - [32] (Buss JA), [98] (Murphy JA, Martin CJ agreeing) citing Evans Constructions Co Ltd v Charrington & Co Ltd[1983] 1 QB 810, 821 (Donaldson LJ, Griffiths LJ agreeing) and Lloyd Steel (218) (Clarke J); Bridge Shipping (260), (262) (McHugh J).

[32] Collgar [62] - [64]; Petkov [98], [114] (Murphy JA, Martin CJ agreeing); Bridge Shipping (260), (262) (McHugh J), as considered and applied in Brandsma [40] - [41].

[33] Collgar [62], [64]; Petkov [95], [106] - [108], [114] (Murphy JA, Martin CJ agreeing).

[34] Petkov [29] (Buss JA), [115] (Murphy JA, Martin CJ agreeing), citing Brown v Jammal[1995] NSWCA 62, 17 - 19 (Kirby P, Handley & Sheller JJA agreeing).

The documentary evidence

The documentary evidence tendered in relation to the application[35] (much, but not all, of which is common to the parties) includes the documents outlined below.
[35] As annexures to the affidavits referred to at [11] above.
Relevant to the entities concerned, company searches which show that at all material times:
(a)the first defendant was registered in and has had its principal place of business in Victoria;
(b)the Proposed Defendant was registered in and has had its principal place of business in Western Australia; and
(c)the first defendant and Proposed Defendant have shared:
(i)the same registered office;
(ii)the same five directors and appointed auditor; and
(iii)the same ultimate holding company.

Relevant to the circumstances of the incident the subject of the claim:
(a)an incident record (bearing a 'Rio Tinto' logo) dated 4 September 2017 (Incident Record), which:
(i)describes the incident in the following terms:
4 unidentified male residents were sitting on one side of bench table when the bench collapsed injuring 2 of the residents[;]
(ii)identifies five 'people involved', including two Rio Tinto employees and three named 'external persons' various described as 'Security - Sodexo' (as an eye witness), 'Village Manager - Sodexo' (as a representative) and 'HSE Specialist - Sodexo' (as an investigator team member);
(iii)includes a note in the following terms:
Note:- Sodexo will not be investigating the incident any further. Both residents are not Sodexo employees.
(b)incident statement forms (bearing the Plummers logo) which were completed by each of the plaintiff and an 'HSE Advisor', Patrick Nolan (both dated 5 September 2017) and an engineer, Daniel McCarthy (dated 25 September 2027) - with the latter two statements identifying the other person injured in the incident;
(c)a workers' compensation form completed by the plaintiff dated 15 September 2017, which identifies the medic who attended the plaintiff and two other witnesses; and
(d)a statement made by the plaintiff on 7 November 2017, which:
(i)identifies the people sitting on the bench and various other witnesses to the incident; and
(ii)identifies the site of the accident as the wet mess area of 'Yandi Construction Village' and includes a statement of the plaintiff's belief that 'Sodexo are in charge of running the camp area, which includes the wet mess', noting that '[e]veryone who works in the wet mess area wears a Sodexo shirt'.
Relevant to the proceedings, the following correspondence which passed between the parties:
(a)a letter of demand from the plaintiff's solicitors, addressed to the first defendant dated 12 February 2019 in which:
(i)the site of the accident was identified as 'the Rio Tinto Yandicoogina Mine Site, North West of Newman in the State of Western Australia' and, more specifically, 'the Yandi Construction Village in the Wet mess area'; and
(ii)the plaintiff gave notice of an intention to commence common law proceedings against the first defendant for 'negligence and/or breach of duty and/or breach of the [Mines Act]';
(b)a letter dated 18 September 2019, under cover of which the plaintiff served the writ and statement of claim on the first defendant at its registered office;
(c)a letter to the plaintiff's solicitors dated 25 October 2019, in which the solicitors for the first defendant identified that they had recently been instructed in relation to the plaintiff's claim;
(d)a letter to the plaintiff's solicitors dated 29 October 2019, in which the solicitors for Plummers advised, inter alia, that the first defendant was responsible for the management of the Mine site facilities, including the mess hall;
(e)an email dated 28 February 2020, by which the solicitors for the first defendant relevantly conveyed to the plaintiff's solicitors:
It has come to our attention that the Sodexo party which should be involved in these proceedings is Sodexo Remote Sites Australia Pty Ltd. Accordingly, these proceedings have been commenced against Sodexo Australia Pty Ltd in error. We act on behalf of Sodexo Remote Sites Australia Pty Ltd.
Could you please therefore arrange for the correct entity to be named as First Defendant to these proceedings. We anticipate that you will be required to make an application to the Court pursuant to Order 21, rule 5 of the RSC. We will not oppose any such application[;]
(f)an email dated 30 September 2020, in which the first defendant's solicitors requested that the plaintiff advise of its intentions in relation to taking steps to 'rectify' the entity named as the first defendant;
(g)a proposed minute of further amended writ of summons (relevantly naming 'Sodexo Remote Sites Pty Ltd (ACN 47 009 105 980)' as the first defendant), and proposed consent orders in respect of that minute, sent from the plaintiff's solicitors to the defendants' solicitors on 19 November 2020;
(h)an email dated 27 November 2020, by which the first defendant's solicitors responded in terms that the plaintiff's proposed minute did not accurately name the Proposed Defendant;
(i)an email dated 1 December 2020, under cover of which the plaintiff's solicitors forwarded a further amended minute and proposed consent orders to the defendants' respective solicitors;
(j)an email dated 7 December 2020, in which the first defendant's solicitors indicated that they did not yet have instructions to consent and that the plaintiff 'may wish to take steps to prepare an application in the interim' (it appears that the second defendant signed the proposed consent orders on 1 December 2020);
(k)an email dated 31 March 2021, in which the plaintiff's solicitors advised the first defendant's solicitors that, before making any application, it was awaiting (by way of discovery from the second defendant, or otherwise provided by solicitors for the first defendant) 'any contract between Rio Tinto and your client';
(l)an email dated 29 July 2021, by which the second defendant served a list of its discoverable documents on the plaintiff; and
(m)an email dated 3 September 2021, by which the solicitors for the second defendant provided inspection to the plaintiff by way of electronic access to its discoverable documents. Those documents included a document entitled Rio Tinto Integrated Facilities Management Services Contract dated 14 March 2016 between the Proposed Defendant (identified as the 'Service Provider') and Rio Tinto Procurement (Singapore) Pte Ltd (Services Contract), which relevant states:
1.Rio Tinto wishes to appoint the Service Provider to provide integrated facilities management services throughout the Sites and in respect of the Assets on the terms and conditions of this Contract.
2.The Service Provider agrees to perform the Service Provider's Obligations under the terms and conditions set out in this Contract.

Parties' positions

The plaintiff's position may be summarised as follows:
(a)The amendment proposed by the plaintiff is properly characterised as the correction of a mistake in naming the first defendant, rather than as the substitution of a new defendant. Accordingly:
(i)the discretion under O 21 r 5 is engaged and O 18 r 6 is inapposite; and
(ii)the expiration of the relevant limitation period does not preclude leave being granted.[36]
[36] Plaintiff's second submissions, pars 13 - 15 and 21, 25. The plaintiff submits that the present circumstances are distinguishable from those in Smith.
(b)The naming of the present first defendant is properly characterised as a mistake because it is clear from the correspondence passing between the parties that:
(i)the plaintiff has always been concerned with an accident that occurred at the Mine and was intent in pursuing 'the Sodexo entity responsible for the mine's Wet Mess area';[37] and
(ii)the Proposed Defendant was the Sodexo entity responsible for the wet mess area at the Mine.
(c)The mistake was not misleading or such as to cause reasonable doubt to the first defendant as to the entity intended to be sued because, as evidenced by correspondence to the plaintiff's solicitors dated 28 February 2020, it was apparent to the first defendant's solicitors that the proceedings had been commenced against the incorrect Sodexo entity.
(d)It is just to grant the plaintiff leave to substitute the name of the first defendant with that of the Proposed Defendant because:
(i)the Proposed Defendant is a wholly owned subsidiary of the first defendant, and is represented by the same solicitors as the first defendant;
(ii)the first defendant's solicitors have known, from no later than February 2020, that the first defendant was erroneously named and that the Proposed Defendant was the 'correct entity'; and
(iii)in the circumstances, no real prejudice will be suffered by the Proposed Defendant if the amendment is allowed.
[37] Plaintiff's second submissions, par 7.
The first defendant's and Proposed Defendant's position may be summarised as follows:
(a)That the first defendant is not a proper defendant to the proceedings is not in issue, but the application is nevertheless opposed on the grounds outlined below.
(b)The mistake in naming the first defendant should not be characterised as genuine because:
(i)the plaintiff's evidence is not to the effect that it formed a (positive) belief that the first defendant was the responsible Sodexo entity;
(ii)company searches could have identified to the plaintiff (by its solicitors) that the first defendant was not likely to be the responsible entity and that the Proposed Defendant was likely to be the responsible entity;[38]
[38] This submission points to the principal place of business of each of the first defendant and the Proposed Defendant which, it says, ought to have suggested the latter as the entity likely to have had the Services Contract.
(iii)the evidence of the plaintiff lacks weight and does not adequately explain why the plaintiff believed the first defendant was the correct Sodexo entity to sue;
(iv)in any event, any mistake on the plaintiff's behalf could not have persisted beyond 28 February 2020 (when the first defendant notified the plaintiff of the error); and
(v)it cannot be said that the writ was not such as to cause doubt as to the identity of the entity intended to be sued because 'it did not include an address at which the incident is alleged to have occurred'[39] without which it was not possible to establish that it was the Proposed Defendant and not the first defendant who was intended to be sued.
[39] First defendant's third submissions, par 14.
(c)For the reasons in sub-paragraph (b) above:
(i)there is a 'real question as to whether there existed the requisite genuine mistake to satisfy the threshold test enabling an order for substitution to be made';[40] and
[40] First defendant's third submissions, par 12.
(ii)the plaintiff has failed to meet the threshold test to enliven the court's jurisdiction pursuant to O 21 r 5.[41]
(d)In any event, it is not in the interests of justice for leave to be granted because:
(i)the plaintiff failed to act promptly, in a number of respects, to protect its own interests. In that regard, the plaintiff was promptly notified by the first defendant that it was not the correct defendant and was 'told the identity of the correct defendant';[42]
(ii)more than five years have elapsed since the plaintiff's injury, in circumstances where the relevant limitation period is three years. In this regard, there is strong recognition of an irreparable element of unfair prejudice in unnecessarily delaying proceedings;[43]
(iii)the Proposed Defendant would be prejudiced in its defence of the proceedings in that it no longer has access to the bench which collapsed, and it 'may now have lost the opportunity' to 'identify (and take evidence from) a number of potentially relevant witnesses'[44] and to 'obtain relevant documents from other parties';[45] and
(iv)the plaintiff will not be prejudiced if the application is refused because he has commenced separate proceedings against the Proposed Defendant in respect of which he has an opportunity to apply to extend the limitation period (and thereby overcome a limitation defence).
(e)The first defendant also made written submissions addressing the merits of the application under O 18 r 6.[46] For the reasons that follow, I do not consider that rule to be apposite to the application at hand and so will not outline those submissions here.
[41] First defendant's third submissions, par 15.
[42] And for those reasons the first defendant submits that the circumstances of this case are distinguishable from those in Petkov: first defendant's third submissions, pars 18, 22 - 23.
[43] The first defendant cites, for example, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [5].
[44] First defendant's third submissions, par 26; referring to the Barbieri Affidavit.
[45] First defendant's third submissions, par 27; referring to the Third Dobson Affidavit.
[46] First defendant's first submissions, pars 17 - 42.

Consideration and disposition

Power under O 21 r 5

The first defendant's submissions outlined at [28(c)] are to the effect that, in order to 'enliven the jurisdiction' of the court to deal with the present application under O 21 r 5, I must be satisfied that the plaintiff made a 'genuine mistake' in naming the first defendant rather than the Proposed Defendant.
That submission - connected as it is to the first defendant's submissions outlined at [28(b)] - must be treated with some caution, for the reasons that follow.
(a)As regards the substitution of parties under the RSC, it is apparent, when O 18 r 6 and O 21 r 5 are read together, that the former relevantly deals with the addition of a new party to proceedings, while the latter deals with correcting any error made in naming a party.
(b)Accordingly, before seeking to exercise any discretion under O 21 r 5(2), the court must first be satisfied that O 21 r 5 responds - that is, that the application is properly characterised as one to correct an erroneously named party, rather than to add a new, alternative party to the action.
(c)To my mind, however, it would be a mistake to treat the concept of 'genuine mistake' for the purposes of assessing the proper character of the application as incorporating considerations going to the reasonableness (in a general sense) of the plaintiff's conduct and whether the mistake could have been avoided. Rather:
(i)the true character of the application (that is, whether it is properly regarded as one to correct an error) is to be approached broadly, in line with the remedial nature of O 21 r 5; and
(ii)once satisfied that there has been an error such as to engage O 21 r 5, all other considerations are more properly taken into account in the exercise of the court's discretion.
That conclusion coheres with the plain language of O 21 r 5 and with reasoning of the Court of Appeal in Collgar. More specifically:
(a)it is clear that, by the Rule Amendment, the requirements of former subrule (3) of O 21 r 5 are no longer express preconditions for an exercise of discretion under O 21 r 5(2) as it now stands;[47]
(b)while the Court of Appeal determined in Collgar that the considerations and principles articulated in Petkov continue to be relevant under O 21 r 5, its reasoning cannot be understood as elevating any one of the considerations formerly contained in subrules (2) - (5) to a jurisdictional threshold. Indeed, to do so would:
(i)render the Rule Amendment otiose, and reverse its intention and effect; and
(ii)be inconsistent with the express recognition in Collgar that, if anything, the power to deal with applications to amend a party's name was enlarged by the Rule Amendment, and that that power 'is no longer subject to former subrules (2) - (5)';[48]
(c)rather, the import of the Collgar decision is that the considerations identified in Petkov (notably, those outlined at [18(b)(i) - (ii)] above) are relevant to the exercise of the court's discretion under O 21 r 5, but are not preconditions of its existence.
[47] Contrary to the position when Petkov was decided - as to which, see: Petkov [36] and [18] above.
[48] Collgar [46] - [47].
Accordingly, I approach the application on the basis that:
(a)before seeking to weigh up factors relevant to the exercise of the discretion under O 21 r 5, I must first be satisfied that that rule is engaged - that is, that the application is properly regarded as one to correct an error made by the plaintiff in naming the first defendant; and
(b)once I am so satisfied, all other considerations are subsumed into the overarching question of whether it is just, in the exercise of the discretion under O 21 r 5, to give the plaintiff leave to substitute the named first defendant with the Proposed Defendant.
The first defendant's submission at [28(c)] is accepted only insofar as it coheres with the approach in [30(c)] and [32] above.[49]
[49] Even if I am wrong in this regard, for the reasons outlined in relation to the exercise of the discretion, the application would be allowed in any event.
Further, the question of whether the application is properly characterised as one to correct an error is, in my view, to be approached on the basis of whether the plaintiff made a mistake in naming the first defendant at the time that the writ and statement of claim were issued. That is because:
(a)the writ and statement of claim suffer from error, and O 21 r 5 is enlivened, immediately upon a mistake as to a party's name being made;
(b)any subsequent delay in making an application does not change the cause of the need to amend, and therefore does not change the character of the application (although delay is relevant to the question of whether it is just, in the exercise of the discretion under O 21 r 5, to grant leave); and
(c)accordingly, the question is confined at this stage of the enquiry to whether the plaintiff made a mistake at the time the writ was issued, and does not extend to whether that mistake 'persisted'[50] over the period that followed.
[50] See [28(b)(iv)] above.
I find that O 21 r 5 is engaged in relation to the application[51] at hand because, noting the principles identified at [22(f)] above:
[51] Indeed, so much was recognised by the first defendant's solicitors, as is apparent in their correspondence dated 28 February 2020. Given that I have found that the character of the mistake, and therefore of application, is not affected by the passage of time (that is, whether there is a persisting mistake), the engagement of O 21 r 5 does not wane over time (though the case for exercising discretion under it, may well dissipate).
(a)despite first defendant's submissions at [28(b)(i)] - [28(b)(iii)] above, a mistake for these purposes can be made even with some element of fault:
(i) that is not to say that it would be a genuine mistake for a claimant to act with reckless disregard as to the name of the party sued, or to name an entity it knew not to be the correct party;[52]
[52] See O'Rourke v Bonney Downs Pastoral Company Pty Ltd [2016] WADC 104.
(ii) rather, evidence that the plaintiff could have done better is not, of itself, sufficient to deprive the misnomer of a party of having the character of an error (indeed, some lack care or attention may be thought a fairly typical feature of an error). It is a question of degree, to be assessed in each case;
(b)in this case, viewed at the time that the writ and statement of claim were issued:
(i)the evidence does not suggest that the plaintiff or his solicitors had any subjective knowledge that the first defendant was not the responsible entity;
(ii)nor does the evidence speak of any reckless disregard on the plaintiff's behalf as to the name of the first defendant. A number of documents initially to hand[53] referred simply to 'Sodexo' (without more) as being the responsible entity, which helps to explain the error[54] (which appears, indeed, to have been shared[55]);
(c)there is sufficient evidence, including on an objective construction of the writ and statement of claim,[56] that the plaintiff intended to sue an entity, referred to as 'Sodexo', which provided facilities and management services, security and human resource services at the Mine and which 'exercised control over' the wet mess area where the plaintiff was injured;[57] and
(d)I am satisfied in the circumstances that:
(i)by reason of the Services Contract, the Proposed Defendant is and was the entity that the plaintiff intended to claim against at the time that the writ and statement of claim were issued;[58]
(ii)the plaintiff named the first defendant in error; and
(iii)that error (assessed at the time of making it) was a genuine mistake as to the name, rather than the responsibility, of the first defendant.

Is it just to allow the amendment?

[53] For example, most of those identified at [25] above.

[54] In this regard, the similarity in names is comparable to the circumstances arising in Collgar (indeed in the latter case, by the time the writ was issued, the proposed substituted party had already changed its name such as to remove any similarity): see Collgar [2] - [5].

[55] The solicitors for Plummers appear also to have initially identified the first defendant as the responsible party: see [26(d)] above. Further, despite the submission at [28(b)(ii)] above, the evidence is that it only 'became apparent' to the first defendant's solicitors themselves that the first defendant was wrongly named in the proceedings upon receipt of the Services Contract on 26 February 2020, after an appearance was entered for the first defendant: First Dobson Affidavit, par 12.

[56] In the circumstances, where the writ and the statement of claim were filed and served together, it is patent that they should be read together when discerning the objective intention of the plaintiff. See also [22(f)(iii)] above and the authorities cited therein.

[57] Statement of claim, pars 2 and 7 - 8; plaintiff's letter of demand dated 12 February 2019.

[58] This is not to say that the plaintiff's intention was formed with the precise Services Contract in mind (since it appears that document was not available to the plaintiff's solicitors at the time) - rather, that the Services Contract appears to speak the kind of responsibility contemplated in the plaintiff's pleadings (without making any finding as to the existence, nature or scope of any actual responsibility that might arise).

Since I am satisfied that O 21 r 5 is engaged by the application, it falls to consider whether it is just to allow the amendment sought. The court's discretion is to be exercised taking account of the considerations and principles outlined at [22] above, together with the objectives of contemporary case management.[59]
[59] Which include promoting the just determination of litigation, disposing efficiently of the business of the court, maximising the efficient use of available judicial and administrative resources, and facilitating the timely disposal of business: RSC O 1 r 4A, O 1 r 4B.
As to the impact of the plaintiff's error, the first defendant and Proposed Defendant submit, in essence, that the plaintiff's mistake in naming the first defendant:
(a)was not obvious because the Sodexo group of companies is not small and the writ did not clearly identify the address of the incident; and
(b)would, if amended, be productive of prejudice because it was not remedied without delay.
First, I do not accept that the plaintiff's error was misleading or such as to cause reasonable doubt as to the intended defendant because:
(a) the writ was not served on the first defendant in isolation, and it would be artificial to consider its likely propensity to cause doubt out of the context in which it was served;
(b)the demand letter sent to the first defendant at its registered office (which is common to the Proposed Defendant) clearly identified the site of the incident and foreshadowed the nature of the claim that would be made;
(c)the writ was then formally served together with the statement of claim, which again identified with some precision the site and circumstances of the incident and, at least in broad terms, the kind of legal responsibility asserted against the (intended) first defendant;
(d)the first defendant and Proposed Defendant shared common directors;
(e)by no later than October 2019 the first defendant was legally represented and, by no later than February 2020, the Proposed Defendant was also represented by the same solicitors, who by then had identified and had regard to the Services Contract;
(f)the first defendant's and Proposed Defendant's solicitors' correspondence with the plaintiff's solicitors between February 2020 and November 2020 demonstrates that the 'error' in naming the first defendant, and the need to 'rectify' it, was known; and
(g)in the circumstances, I am satisfied on an objective assessment of the evidence, and I find, that the plaintiff's error was not such as to cause reasonable doubt as to the intended first defendant.
As to the question of delay and prejudice:
(a)some five and a half years have passed since the Material Date;
(b)that period includes significant passages of time between the filing of the chamber summons on 28 February 2022 and, respectively:
(i)the notification, on 28 February 2020, to the plaintiff's solicitors of their mistake;
(ii)the expiration, in September 2020, of the relevant limitation period; and
(iii)the final hearing of the application on 15 February 2023;
(c)the Proposed Defendant says that it will be prejudiced in its defence of the action if the application is allowed. It points to the expiration of the relevant limitation period and a presumption of unfairness associated with unnecessary delay,[60] and says that actual prejudice is likely as evidenced, in particular, by:
[60] See [28(d)(iii)] above.
(i)the Incident Record which it says demonstrates that neither the first defendant nor Proposed Defendant took active steps to investigate the incident at or shortly after it occurred,[61] because responsibility was thought to lie elsewhere;[62]
[61] ts 40, 15 February 2023.
[62] Barbieri Affidavit, pars 18 - 20.
(ii)the witness statements available on the parties' current lists and draft lists of discoverable documents, which do not include 'any Sodexo employees', and the difficulties likely to attend on the Proposed Defendant in now locating such witnesses;[63]
[63] ts 40, ts 42 - ts 43, 15 February 2023; Barbieri Affidavit, pars 21-23.
(iii)the absence of CCTV footage of the incident, and difficulties attaching to the first defendant and Proposed Defendant (which share a document storage database) ascertaining the existence (at any time) and content of various classes of documents;[64] and
[64] ts 40, ts 43, 15 February 2023; Barbieri Affidavit pars 24 - 28, 32 - 36.
(iv)the fact that the particular bench that collapsed is no longer available for inspection because it (together with other chairs) has been discarded, and is not able to be reliably identified from the photographs now available;[65]
[65] ts 41-42, 15 February 2023; Barbieri Affidavit 29-31.
(d)I accept that delay can certainly be productive of forensic disadvantages amounting to prejudice;
(e)further, the plaintiff has been dilatory in bringing the application some two years after it was put on notice of its error by the first defendant's solicitors, and in that sense has not taken reasonably available steps to protect its own position;
(f)however, I do not consider that the plaintiff's delay was wholly 'inexplicable'[66] because:
[66] ts 34, 15 February 2023.
(i)by reason of the matters in [38] above, the plaintiff had reason to consider that the Proposed Defendant was on notice of the claim;
(ii)the solicitors for the first defendant and Proposed Defendant initially indicated that rectification of the plaintiff's error would not be opposed, and indeed no such indication was given until around December 2020, after the limitation period had expired;[67]
(iii)(whether or not it could be regarded as sensible to do so) the plaintiff's solicitors indicated on 31 March 2021 that they would await inspection of the Services Contract before making application to amend its pleadings;[68] and
(iv)despite the plaintiff inviting the first defendant's solicitors to provide it with a copy of the Services Contract, which the first defendant's solicitors had,[69] it appears that the plaintiff did not have the opportunity to insepct that document until the second defendant provided inspection on 3 September 2021;
and
(g)because I am satisfied that the first defendant and Proposed Defendant were, from no later than February 2020 (before the expiration of the relevant limitation period), in a position to understand who was the intended defendant in these proceedings,[70] I consider that:
(i)the Proposed Defendant was in a position from that time to make investigations appropriate to the conduct of its defence, and was not hampered in that regard by any delay in bringing the application; and
(ii)if, at that time, neither the first defendant nor Proposed Defendant took steps to investigate the claim, or upon investigation discovered that the information referred to in [39(c)] was not available even then, then any resulting forensic disadvantage cannot be said to have been caused by the plaintiff's delay.
[67] See [26 (e)-(j)] above.
[68] See [26(k)] above.
[69] See [26(k)] above; First Dobson Affidavit, par 12.
[70] And indeed not only anticipated, but actively prompted an application for amendment being made.
In all the circumstances:
(a)I consider it desirable, in the interests of the efficient disposal of court business and of promoting the just determination of the litigation, that the plaintiff's error in naming the Proposed Defendant be corrected;
(b)I am not satisfied that, if the application is granted, the Proposed Defendant will be prejudiced (such as to outweigh the competing merits); and
(c)I am satisfied that it is just to grant the plaintiff leave to amend the name of the first defendant to that of the Proposed Defendant.

Conclusion

The application is allowed.
I will hear the parties as to the precise terms of the orders that should follow, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
3 MAY 2023

CLR 231, 260 - 261 (McHugh J) (Bridge Shipping); Silverstone Holdings Pty Ltd as Trustee for the Devereaux Property Trust v American Home Assurance Co(1997) 18 WAR 516, 537.

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