Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd

[2024] ACTSC 352

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd

Citation: 

[2024] ACTSC 352

Hearing Dates: 

21 October 2024 – 22 October 2024

Decision Date: 

6 November 2024

Before:

Baker J

Decision: 

See [85]

Catchwords: 

CIVIL LAW – application to substitute defendants previously granted by Court – order made under r 502 rather than r 503 of the Court Procedure Rules – application by plaintiff to amend order – rr 1613 or 6906 inapplicable – plaintiff’s application dismissed – application by defendants under r 514(4) of the Court Procedure Rules – proper construction of r 503 – whether substitution permitted under r 503 – sloppy pleadings – no affidavit from plaintiff’s legal representative explaining mistake – whether discretion under r 514(4) should be exercised – collateral challenge to previous order made over 12 months after order made – prejudice would be occasioned to plaintiff if order made – defendant’s application dismissed.

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT), s 168

Civil Procedure Act2005 (NSW), s 65(2)(b)

Court Procedure Rules 2006 (ACT), rr 502, 503, 514, 1603, 1613, 6906

Limitation Act 1985 (ACT), s 16B

Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.01

Supreme Court Rules 2000 (Tas), r 184

Uniform Civil Procedure Rules 1999 (Qld), r 376

Cases Cited: 

Beta ACT Pty Ltd as Trustee for the Brendas Family Trust v FTI Consulting Pty Ltd [2021] ACTSC 293

Brando Aus Holdo Pty Ltd v Gary Shayne as representative of the persons identified in Schedule 1 [2021] NSWSC 998

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; 173 CLR 231

Brown v Jammal [1995] NSWCA 62

Cooke v Rixon [2016] ACTSC 236

Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller [2012] FCA 1307; 208 FCR 376

Greentree v GD Searle and Company (Supreme Court of New South Wales, unreported, 31 July 1992)

Greenwood v Papademetri [2007] NSWCA 221

Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59

Sibroll Pty Ltd (in liq) v Mitch Properties Pty Ltd [2007] NSWSC 579; 212 FLR 1

Sullivan v Van der Broek [1999] NSWSC 1177

Sullivan v Van Den Broek (Supreme Court of NSW, unreported, 14 September 1998)

Parties: 

Lee Davyd Prichard ( Applicant)

Honeywell Limited ( First Defendant)

Colliers International (ACT) Pty Ltd ( Second Defendant)

Representation: 

Counsel

D Steiner ( Applicant)

A Muller SC ( First Defendant)

R Perla ( Second Defendant)

Solicitors

Capital Lawyers ( Applicant)

Wotton + Kearney ( First Defendant)

Moray & Agnew ( Second Defendant)

File Number:

SC 403 of 2021

BAKER J:      

Outline

1․The present proceedings arise out of a claim for personal injury which the plaintiff sustained on 27 September 2018, when the plaintiff fell on a subsided manhole cover whilst he was making a delivery in the course of his employment to the loading dock of the Louisa Lawson Building in Greenway, ACT.

2․Both applications relate to orders that were made by McWilliam AsJ (as her Honour then was) in the civil applications list on 11 November 2022. On that occasion, the plaintiff sought an order permitting the substitution of the present defendants (Honeywell Limited (Honeywell) and Colliers International (ACT) Ptd Ltd (Colliers)) for the then named defendants (Trust Company (Australia) Ltd (Trust Company) and Perpetual Corporate Trust Limited (Perpetual)). The plaintiff’s application was consented to by Trust Company and Perpetual and was not opposed by Colliers. There was no appearance for Honeywell. After discussing the matter with the parties, her Honour made orders granting the plaintiff’s application for substitution of the defendants under r 502 of the Court Procedure Rules 2006 (ACT) (CPR).  

3․Although no party objected to McWilliam AsJ exercising the power to substitute parties under r 502 of the CPR, it is now common ground between the parties that the order made by her Honour should not have been made pursuant to that provision. Rather, it is agreed that as the relevant limitation period for the plaintiff’s claim had expired, any order for substitution of parties should only have been made under r 503 of the CPR.

4․Neither party sought to have the proceedings brought back before McWilliam AsJ for the error to be corrected, nor did either party seek leave to appeal against her Honour’s decision.  

5․The first action that was taken to challenge the order was by the first defendant (Honeywell). On 8 May 2024, it filed an application seeking the following order:

Pursuant to r 514(4) of the Court Procedure Rules 2006 (ACT), the proceeding, as amended in the Plaintiff’s Further Amended Statement of Claim dated 15 November 2022 (amended pursuant to the Order of this Court made on 11 November 2022) is taken to have started on 11 November 2022.

6․A week later, on 14 May 2024, the plaintiff sought orders pursuant to either r 1613, or alternatively, r 6906 of the CPR for an amendment to be made to the orders made by McWilliam AsJ on 11 November 2024, to record that the orders were made under r 503, rather than r 502 of the CPR. In the alternative, the plaintiff sought an order that he be granted leave nunc pro tunc, to file and serve the Further Amended Originating Claim and the Further Amended Statement of Claim that were previously filed on 14 November 2022.

7․At the hearing of these applications on 21 October 2024, the second defendant (Colliers) informed the Court that it joined in the first defendant’s application, and opposed the plaintiff’s application.

8․For the reasons outlined below, I have concluded that the applications of the plaintiff and the defendants should each be dismissed. The effect of this decision is that the plaintiff’s claim against the defendants is not precluded by s 16B of the Limitation Act 1985 (ACT).

Factual Background

9․The plaintiff originally commenced the present proceedings on 27 September 2021. This was the same date that the limitation period which applied to the plaintiff’s claim expired: see s 16B of the Limitation Act.

10․The Originating Claim and the Statement of Claim identified Challenger Limited (Challenger) as the defendant. In the Statement of Claim, the plaintiff alleged that Challenger “owned and/or occupied the concrete loading dock”. The plaintiff further alleged that Challenger had:

… exclusive care, control, management and administration of the property and owed a duty to control, manage and maintain the property in good repair, such that the state of the premises things or done or omitted to be done about the state of the premises, did not cause injury or damage… (“the duty of care”). 

11․However, on 20 October 2021, after filing and serving the Statement of Claim, the plaintiff’s legal representative discovered that Challenger was only the investment manager or financial adviser for the property, and that it was not the owner of the loading dock of the property. The plaintiff was informed that the owners of the property were Trust Company and Perpetual. The plaintiff’s legal representative was also informed that the first defendant was the property manager and the second defendant was the facility manager of the property.

12․On 24 December 2021, without making any further inquiries as to the precise role of the first or second defendant, the plaintiff filed an application in proceeding seeking leave pursuant to r 503 of the CPR to amend the name of the defendant so as to substitute Trust Company and Perpetual as defendants to the proceedings. That application was not opposed and leave to substitute Trust Company and Perpetual was granted by a Registrar of this Court on 11 February 2022.

13․On 18 February 2022, an Amended Statement of Claim was filed pursuant to the leave granted by the Court. The plaintiff’s allegations in the Amended Statement of Claim were relevantly identical to those originally pleaded, save for the substitution of Challenger for Trust Company and Perpetual. In particular, the Amended Statement of Claim alleged that Trust Company and Perpetual “owned and/or occupied the concrete loading dock”, and that Trust Company and Perpetual had the “exclusive care, control, management and administration of the property and owed a duty to control, manage and maintain the property in good repair, such that the state of the premises or things done or omitted to be done about the state of the premise[s], did not cause injury or damage… (“the duty of care”)”.

14․On 16 June 2022, the defendants served discovered documents on the plaintiff. Those documents included a Property Management Agreement dated 24 December 2015, between the second defendant and Perpetual, and a Facilities Management Agreement dated 19 April 2016, between the first defendant and Perpetual.

15․On 5 October 2022, the plaintiff filed a further application in proceedings seeking leave pursuant to CPR rr 502 and 503 to substitute new parties, namely, Honeywell and Colliers, as the defendants to the proceedings.

16․That application came before McWilliam AsJ on 11 November 2022. At that hearing, legal representatives appeared for the plaintiff, Perpetual, Trust Company and Colliers. There was no appearance for Honeywell. Counsel for Perpetual and Trust Company informed her Honour that his clients consented to the plaintiff’s application. Counsel for Colliers informed her Honour that the plaintiff’s application was neither opposed, nor consented to.

17․After satisfying herself that Honeywell had been properly served with the application seeking orders for substitution, her Honour discussed the power under which the orders should be made with Mr Crabb (the legal representative for Colliers) as follows:

HER HONOUR: All right. Now, having dealt with that, what orders do you seek today, noting that it's neither opposed nor consented to?

MR CRABB: Your Honour, if you look at the application, which I have just lost. So the application in proceedings dated 5 October. It seeks to amend the name. I'm sorry, to substitute for the named defendants to other defendants.

HER HONOUR: All right.

MR CRABB: And in the supporting affidavit dated 5 October, at paragraph 6, ‘If the court grants leave, the plaintiff would substitute for the named defendants’ - and then it names them – ‘the following defendants,’ and then in dot points - - -

HER HONOUR: Yes.

MR CRABB: - - - it has the two defendants that we wish to substitute.

HER HONOUR: Now, there's a bit of a limitation issue in - in this, isn't there, but you have just - -

MR CRABB: I'm not sure that there is.

HER HONOUR: All right. Well, then - - -

MR CRABB: If your Honour excuses me for a second. So rule 503.

HER HONOUR: Yes.

MR CRABB: Amendment - After Limitation Period. That - that talks about the steps to go through to substitute, and then within that part, which is part 2.7 amendments of the rules - - -

HER HONOUR: Yes.

MR CRABB: - - - is rule 514 and it says:

(1) If a document is amended under this part ...

And this is subrule (1):

.. the amendment takes effect on and from the date of the document.

(2) However, an amendment including or substituting a cause of action...

Which is not relevant here, and:

(3) Despite subrule (2), if an amendment mentioned in that rule is made, then, for a limitation period, the proceeding as amended is taken to have started when the original proceeding started.

HER HONOUR: Yes. You say you're not adding a cause of action?

MR CRABB: I'm not adding a cause of action.

HER HONOUR: You're just changing the name?

MR CRABB: That's correct.

HER HONOUR: All right.

MR CRABB: We're-we're just getting it right ---

HER HONOUR: All right. Okay. So ---

MR CRABB: ---based on a genuine mistake.

HER HONOUR: So the order that I make, so 292, 'At any stage of a proceeding, the court may give leave ... to amend.' So that – 502 is general.

MR CRABB: It's 502(4), your Honour.

HER HONOUR: 502(4). All right.

MR CRABB: So, ‘If there is a mistake in the name or identity of a party, the court must give leave for, or direct the making of, amendments ...’

HER HONOUR: Yes, so that's the power. So pursuant to rule 502 subrule (4) of the Court Procedures Rules 2006 the court grants leave to the plaintiff to amend or to file a further amended originating claim and further amended statement of claim. Is there an amended claim already?

MR CRABB: Yes, because it's always ---

HER HONOUR: All right. So further amended statement of claim ---

MR CRABB: Thank you.

HER HONOUR: - - - to give effect to the amendments sought in the affidavit of Paul Crabb sworn 5 October 2022.

MR CRABB: Thank you, your Honour. I think that will do it.

HER HONOUR: Now, I just need to do one thing. So you're tightening up paragraph 1 - - -

MR CRABB: Yes.

HER HONOUR: - - - of the pleading. You don't need leave under 502(4) for that. So you do at 502(1).

MR CRABB: Yes.

HER HONOUR: So we will say pursuant to 502(1) and 502(4).

MR CRABB: Thank you.

HER HONOUR: Five O two. Yes, that's it, and then 502(4). Yes. All right. Yes. Perfect. Grants leave to the plaintiff to file a further amended originating claim and further amended statement of claim to give effect to the amendments sought. Well, we will say amendments set out in the affidavit. All right.

MR CRABB: Thank you.

(Emphasis added.)

18․On 14 November 2022, the plaintiff filed a Further Amended Statement of Claim pursuant to the leave granted by McWilliam AsJ on 11 November 2022. This pleading was again identical to its previous iterations, save for the substitution of Honeywell and Colliers as defendants to the proceedings. The Further Amended Statement of Claim again alleged that “the defendant” “owned and/or occupied the concrete loading dock” and further alleged that the “the defendant” had the “exclusive care, control, management and administration of the property and owed a duty of care to control, manage and maintain the property in good repair, such that the state of the premises or things done or omitted to be done about the state of the premise[s], did not cause injury or damage (“the duty of care”)”.

19․Both defendants subsequently filed defences. The matter was case managed by the Court, proceeded to mediation (which was unsuccessful), and was initially listed for hearing on 6 May 2024. The matter was not reached on 6 May 2024 and was adjourned for hearing on 21 October 2024.

The applications

20․In his application, the plaintiff seeks orders amending the orders made by McWilliam AsJ, in effect, so as to alter the statutory footing upon which her Honour made those orders.

21․Associate Justice McWilliam’s orders cannot be amended under r 6906 of the CPR. Rule 6906, which is in the nature of a slip rule, permits a court to correct “a clerical mistake” in an order, or mistake or error which “resulted from an accidental slip or omission”. I accept, as the parties agreed, that her Honour erred in making orders under r 502. As the relevant limitation period had expired, orders for the substitution of a party could only be made if r 503 were satisfied as well as r 502. However, this is not an error which could be described as a “clerical mistake” or an “accidental slip or omission”. Rather, after Mr Crabb informed the Court that he was “not sure” that there was a limitation issue and that there was no new cause of action pleaded, her Honour made a considered decision to exercise power under r 502, rather than r 503. As her Honour’s reference to r 502 was not a “clerical mistake” or an “accidental slip”, r 6906 cannot authorise the amendment sought by the plaintiff.

22․Nor do I consider it appropriate to make an amendment under r 1613 of the CPR. Rule 1613 was recently amended, those amendments taking effect on 1 October 2024. As amended, r 1613(2)(a) permits a court to amend or set aside an order on an application that is made no later than 14 days after the order is entered.

23․The plaintiff’s counsel informed me that his solicitor had taken action to enter the orders of McWilliam AsJ on Friday 18 October 2024, rendering his application within the time provided under r 1613(2)(a).

24․However, when r 1613 was amended, r 1603(3) was also amended, so as to provide that an order is entered when “the order is recorded in the court’s case management system”. The plaintiff did not adduce any evidence as to whether McWilliam AsJ’s order was recorded in the court’s case management system when r 1603(3) took effect on 1 October 2024. If the order was then recorded in the court’s case management system at that time, then the plaintiff’s application would not have been made within the 14 days required by r 1613(2) of the CPR.

25․The plaintiff also sought an order seeking leave under r 503(2) nunc pro tunc (that is with retrospective effect to 11 November 2022). However, I did not understand this order to be pressed, and no submissions were made on this application by any party.

26․It follows that the plaintiff’s application should be dismissed.

27․However, nothing turns on this. By reason of r 514 of the CPR, the plaintiff does not require the order of McWilliam AsJ to be amended before he can proceed with his claim. Rather, the claim will proceed unless the defendants’ application for an order under r 514(4) is successful.

28․Rule 514 of the Court Procedure Rules provides as follows:

514 Amendment—taking effect

(1)If a document is amended under this part, the amendment takes effect on and from the date of the document.

(2)However, an amendment including or substituting a cause of action arising after the proceeding started takes effect on the day the order giving leave was made.

(3)Despite subrule (2), if an amendment mentioned in that rule is made, then, for a limitation period, the proceeding as amended is taken to have started when the original proceeding started.

(4)This rule applies unless the court otherwise orders.

29․The order that was made by McWilliam AsJ was an order made under r 502, which is within the same part of the CPR as r 514. As can be seen from the above, r 514(3) provides that, if no other order is made by this Court, the proceedings as amended are “taken to have started when the original proceeding started” (that is, immediately prior to the expiry of the relevant limitation period). Mr Muller SC, who appeared for Honeywell, properly accepted that the effect of r 514(3) is that, if no other order is made under r 514(4), the defendants cannot rely on a limitation period in answer to the plaintiff’s claim.

30․The foundation of the defendants’ claim for an order under r 514(4) of the CPR was the defendants’ contention that r 503 could not have authorised the substitution of the first and the second defendants. I understood Mr Muller SC and Mr Perla to accept that if, properly construed, r 503 authorised the substitution of Honeywell and Colliers as defendants to the plaintiff’s Further Amended Statement of Claim, there could be no basis for making an order under r 514(4). It is to that question that I now turn.

The proper application of r 503

Introduction

31․Rule 503 of the Court Procedure Rules provides as follows:

503 Amendment—after limitation period

(1)This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

Note Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.

(2)The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if—

(a)the court considers it appropriate; and

(b)the court is satisfied that the mistake sought to be corrected—

(i)   was a genuine mistake; and

(ii)     was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.

(3)The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counter-claiming defendant, only if—

(a)the court considers it appropriate; and

(b)the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.

(4)The court may give leave to make an amendment to include a new cause of action only if—

(a)the court considers it appropriate; and

(b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

(emphasis added)

32․As can be seen from the above, r 503 confers power to amend an originating process after the expiry of a limitation period. As a result of r 514(3) (extracted at [28] above), where an amendment is made with leave under r 503, “the proceeding as amended is taken to have started when the original proceeding started”, such that the limitation period will no longer present a bar to the continuation of the proceeding.

33․Rule 503(2) relates to amendments concerning the name of a party to proceedings. This rule has two components. The first is a subjective component, which focuses on the nature of the mistake and the intention of the person who made the mistake. That is, was the mistake a “genuine mistake” in the “name or identity of a party”. The second component is objective. It requires the Court to consider whether the amendment was “likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued”.

34․The subjective component of r 503 is also found in comparative legislation in many Australian States and Territories: see, for example, r 376 of the Uniform Civil Procedure Rules 1999 (Qld) from which the ACT rules were derived: Cooke v Rixon [2016] ACTSC 236 at [30]; s 65(2)(b) of the Civil Procedure Act2005 (NSW); r 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Victorian Supreme Court Rules); r 184 of the Supreme Court Rules 2000 (Tas). Of those provisions, only Queensland and New South Wales contain the objective component. For this reason, it is convenient to separately consider authorities relating to the subjective component of r 503 before then turning to a consideration of authorities relating to the objective component.

The subjective component (r 503(2)(b)(i) of the Court Procedure Rules)

35․The seminal authority concerning the subjective component of r 503 is the decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; 173 CLR 231.

36․Bridge Shipping concerned goods (tobacco) that were damaged in transit by sea from Brazil to Melbourne. The owner of the goods (a cigarette company) sued the company it had engaged to arrange the carriage (Bridge Shipping). Bridge Shipping issued a third party notice against the registered owner of the vessel. The defendant later discovered that, at the time of the carriage, the vessel had been under charter to another company which had therefore been the carrier of the goods. Bridge Shipping applied under r 36.01 of the Victorian Supreme Court Rules to substitute the charterer as third party in place of the owner.

37․Like r 503 of the CPR, r 36.01 of the Victorian Supreme Court Rules permitted a “mistake in the name of the party” to be corrected by an amendment made with the leave of the Court, even if the effect of the correction was to substitute another person as a party. Where such leave was granted, the proceedings were taken to have been commenced against that person on the day when the proceedings were originally commenced. In other words, as with an order made under r 503, an order made under r 36.01 would have the effect of avoiding a limitation period that would otherwise have arisen if the substitution only took effect on the date of the order.

38․Justice McHugh (with whom Brennan and Deane JJ agreed) held that r 36.01 should be given a “beneficial construction”: Bridge Shipping at 261. Applying that beneficial construction, their Honours held that the scope of the rule did not only cover cases of misnomer and clerical error (as did the common law), but also extended to all cases in which a 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 at 261.

39․Nonetheless, the High Court unanimously held that the particular amendment sought by Bridge Shipping was not authorised by r 36.01. Critical to this conclusion was the Court’s finding that the defendant had intended to sue the owner and not the carrier. As McHugh J explained (at 262):

Bridge made no mistake as to description of the party which it wished to sue. It intended to sue the owner and did so. Bridge's mistake was not one of misnomer, clerical error or misdescription. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description. The present case is different, therefore, from Lloyd Steel where Clarke J accepted that the plaintiff's solicitor had "instituted the proceedings because he believed, as a result of his searches of the (Lloyd's) Register, that the first named defendant in each case was the carrier". The mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not a mistake "in the name of a party".

40․Justice Toohey similarly concluded that if Bridge Shipping had intended, by its third party notice, to join the carrier of the goods in the proceeding, and had wrongly concluded that the owner (rather than the charterer) was the carrier, it would have been “but a short step to conclude that Bridge made a mistake in the name of the third party” (at 251). However, like McHugh J, Toohey J considered that Bridge Shipping had joined Grand Shipping “as owner of the ship, not as carrier of the goods”, and that the evidence revealed that “that was Bridge Shipping’s intention” (at 251). In a concurring judgment, Dawson J concluded to similar effect (at 245).

41․The decision in Bridge Shipping illustrates the fundamental distinction which underlies r 503 and like provisions. Specifically, in order to enliven provisions such as r 503, the mistake must only relate to naming of the party intended to be sued or to sue. The provision does not permit amendment where the mistake is one of law (such as a misunderstanding on the part of the legal adviser as to the entity that legal rights may be enforced against).

42․President Kirby explained the distinction in Brown v Jammal [1995] NSWCA 62 at 13 (citations omitted) as follows:

Characterising the mistake may lead the Court to a conclusion that the pleader’s error concerns the legal effect of a rule of the common law or of statute by which one person rather than another is liable. If that is the conclusion of the Court the mistake is not in the “name” of the party. True, an incorrect party will have been named. But the misnomer is not the character of the mistake. It is its result. In such a case, the court must dismiss the application. Confusion as to who was, in law, the proper party is not a foundation for the application of the rule. That application is limited to the case where a mistake has occurred in the naming of the party. Where such mistakes of law occur on the part of the legal advisers of a party, that party will normally not be without redress. Part, at least, of the claim may be recovered in a negligence action against the lawyer responsible for the mistake.

43․As outlined above, in Bridge Shipping, substitution was not permitted because the “mistake” that was made concerned a misunderstanding as to which entity was liable. Specifically, in circumstances where Bridge Shipping had always intended to sue the owner, it could not, upon later discovering that the owner was not liable, then substitute the carrier as a party. However, the judgments make clear that the position would have been different if the evidence indicated that Bridge Shipping had always intended to sue the carrier, and had simply misidentified the entity that was in fact the carrier. If that had been the true position, the amendment could have been made.

44․This distinction, between mistakes in the identification of the party, and mistakes as to the liability of an identified party, is clearly also seen in a comparison of other decisions which have permitted substitution, and those which have not. For example, in Greentree v GD Searle and Company (Supreme Court of New South Wales, unreported, 31 July 1992), substitution was permitted where the Court was satisfied that the plaintiff intended to sue the entity that had manufactured, designed and marketed the allegedly defective product, and the plaintiff had mistakenly believed that the named defendant had manufactured, designed and marked that product at all relevant times. Similarly, in Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller [2012] FCA 1307; 208 FCR 376, substitution was permitted where the evidence satisfied the Court that the plaintiff had intended to sue its auditor, and had mistakenly believed that the named defendant was its auditor.

45․On the other hand, substitution was not permitted in Sibroll Pty Ltd (in liq) v Mitch Properties Pty Ltd [2007] NSWSC 579; 212 FLR 1, where a liquidator commenced proceedings in the name of a company to recover a preference or uncommercial transaction under s 588FF of the Corporations Act. This was because the mistake concerned a matter of law, namely whether the “right of action was in the company in liquidation rather than the liquidator”: Sibroll at [48]; see also Greenwood v Papademetri [2007] NSWCA 221 at [77]. Similarly, substitution under r 503 was refused by Crowe AJ in Beta ACT Pty Ltd as Trustee for the Brendas Family Trust v FTI Consulting Pty Ltd [2021] ACTSC 293, where the mistake was as to whether the plaintiffs had rights against the defendant as the employer of the receivers, rather than whether the defendant was in fact the relevant receiver: see Beta at [80] – [82].

46․Substitution was also refused by Mossop AsJ (as his Honour then was) in Cooke. The plaintiff in Cooke had been the victim of a hit and run who initially believed that the vehicle which had struck him was driven by a tradesman. However, a witness to the accident later described the offending vehicle as having a tray back, which was inconsistent with the description of the vehicle driven by the tradesman. In those circumstances, the plaintiff sought orders under r 503 permitting him to sue the nominal defendant (as the unknown vehicle with the trayback could not be identified). In refusing the plaintiff’s application, Mossop AsJ held that the mistake that had been made was not a mistake as to the defendant’s “name or identity”. Specifically, his Honour concluded at [28]:

… the plaintiff intended to sue the driver of the station wagon, being a Caucasian man with a distinctive appearance who lived at the particular address in Conder to which he was follows. He did, in fact, sue that person. He made no mistake as to his name or identity. Rather, the mistake was that, on the evidence presently available, he considers that he is unable to prove that the vehicle which that person was driving was the one that hit him. That was not a mistake as to the name or identity of a party. Rather he sued the person he intended to sue but could not prove that the person was the person who is liable for the wrong… The rule does not extend to a mistake where the only intention in relation to which the mistake operates is to sue the person who, on a correct analysis of the facts and the law, is liable. In order to be a mistake in the name or identity of a party, the party must be identified by more specific properties inherent to the person or which only the person has.

47․Each of these decisions illustrates the importance of characterising the mistake. It is only where there is a mistake in the identity of the party that the rule is attracted.

48․As established in Bridge, a mistake in “identity” is not limited to cases of misnomer or clerical error (see above at [38]). Rather as Mossop AsJ held in Cooke at [23], there will be a mistake in the “identity” of the party where:

(a)the plaintiff can identify the person but, mistakenly believes that the person so identified bears a certain name; or

(b)when the plaintiff knows a person by a particular description, for example, the driver of a certain car, but the plaintiff is mistaken as to the name of the person who answers that description.

49․His Honour continued (at [24]):

In each case the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person, but is mistaken as to the name of the person. Those properties may be personal characteristics (the first category above) or the essence of the description of the person (the second category above).

50․Of course, in assessing whether the mistake falls within one of these categories, it is necessary to bear in mind that the “same mistake may commonly be characterised in a variety of ways”: Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 at [33] (Leeming JA, with whom Meagher JA agreed). For this reason, determining the proper character of an alleged “mistake” is not easy: Beta at [75]. Indeed, in Bridge Shipping, McHugh J recorded that his “initial reaction” was that “despite its form, Bridge had impliedly intended to sue the carrier of the tobacco but was mistaken as to its name”: Bridge Shipping at 261. His Honour explained that he changed his mind after apprehending that a conclusion that the defendant intended to sue the carrier was “inconsistent with the terms of the statement of claim, with the inferences to be drawn from that document, and with the affidavit of Bridge’s solicitor seeking to explain the mistake”: Bridge Shipping at 261.

51․In considering the subjective component or r 503, it should also be noted that it has been accepted that such provisions are enlivened not only where the amendment constitutes a strict “substitution” of a party (such as where party A is replaced by party B), but also where the amendment has the effect of adding a party or parties to the litigation: see, for example, Greenwood at [64] – [75] and the cases cited therein.

52․The plaintiff in Greenwood had sued a person (Mr Antoun) who was believed to be the “owner and occupier” of property from which mud had escaped, giving rise to claims in negligence and nuisance. The plaintiff later discovered that Mr Antoun was not the owner of the property and that another person (Ms Antoun) was in fact the owner of, and also an occupier of, the property. The plaintiff was permitted to amend the pleadings to join Ms Antoun’s estate (Ms Antoun having passed away) as an additional defendant, provided that the Statement of Claim was amended to remove the allegation that Mr Antoun was an owner of the property (at [92]), leaving the allegation that Mr Antoun was only an occupier of the property.

53․In contrast, amendment was not permitted to add additional parties in Sullivan v Van der Broek [1999] NSWSC 1177. In Sullivan, the plaintiff was injured whilst participating in an event organised by a voluntary unincorporated association. The plaintiff sued five people whom she believed to be the organising committee of the association that had control and management of the event. Some of those people denied that they were members of the committee. The plaintiff then applied under Pt 20 r 4 of the NSW Supreme Court Rules to join four additional defendants to her claim.

54․Justice Windeyer accepted that Pt 20 r 4 contemplated a substitution which had the effect of joining additional parties, provided that the parties added answered a particular description: Sullivan at [7]. His Honour further accepted that the mistake that had been made was “that all individual members who met that description were not included as defendants in the proceedings”: Sullivan at [8], (citing first instance decision of Master Harrison Sullivan v Van Den Broek (Supreme Court of NSW, unreported, 14 September 1998) at 12). However, his Honour held that properly characterised, this mistake did not fall within the purview of the rule. His Honour explained (at [9] - [10]):

… In fact the evidence upon which the application for amendment was made did not establish with any certainty that the nine persons now sought to be substituted as defendants were members of the committee or the only members of the committee. The difficulty for the plaintiff in the application before the Master and for that matter on this appeal, is that it has not been shown that there was any mistake in joinder of the original defendants. The plaintiff is still claiming that those defendants were members of the relevant committee. In other words, each answered a particular description as a member of the committee, but now it is alleged that other people answered that description as well….

… In the present case there is no mistake in the names of the original five defendants and it is intended to leave them in, claiming that they were members of the committee. What the amendment seeks is to add four other persons whom it is also sought to say were members of the committee. In other words it is alleged in the amended claim, albeit not in appropriate words in accordance with the leave, that all nine defendants were members of the committee. It is not alleged that they were the only members of the committee or the members of the committee but “members of the committee”…

55․The differing outcomes in Greenwood and Sullivan illustrate the importance of characterising the plaintiff’s intent when commencing the proceedings. In Greenwood, the plaintiff intended to sue the “owner and occupier” of the property. As the defendant that was initially sued was not an owner and only potentially an occupier, an amendment joining another person who was the true owner was permitted. In contrast, the plaintiff in Sullivan intended to sue members of the organising committee, but had not indicated an intention to sue all members of the organising committee. In these circumstances, the amendment was refused because there was no relevant “mistake” in the identity of the person sued: the plaintiff had correctly sued some of the members of the organising committee.

56․The final observation to make about the subjective component of r 503 of the CPR is that it is common for the court to receive evidence from the person who made the mistake explaining their original intent. As Kirby P observed in Brown v Jammal at 13:

… it is normal for the court to consider evidence of the intention of the solicitor or other person who filed the supposedly mistaken document. Thus the court will ordinarily examine an affidavit from the solicitor who, if necessary, will be submitted to questioning as to the supposed mistake. However, where, as here, the solicitor is unavailable, the court is not without power. It can examine the suggested mistake from the point of view of the solicitor’s file, the solicitor’s correspondence and other surrounding circumstances from which inferences may be drawn. …

57․Ultimately, r 503(2)(b)(i) requires the Court to characterise the intent of the person who made the mistake in the pleadings sought to be amended. As Kirby P continued in Brown v Jammal at 13:

The objective facts must be viewed as a whole. This is because it is the duty of the Court to exercise a discretion having regard to all relevant facts presented to it. … But in every case, it is necessary for the decision-maker to view the totality of the evidence before approaching the task of characterisation required by the rule.

The objective component

58․Unlike the subjective component of r 503(2), the objective component in r 503(2)(b)(ii) has received relatively little judicial consideration.

59․In Cooke, Mossop AsJ held, in the alternative, that r 503(2)(b)(ii) of the CPR precluded the amendment sought by the plaintiff because it was “more than doubtful that [the plaintiff] intended to sue the driver of the tray back vehicle or some other unidentified vehicle”: Cooke at [32]. Acting Justice Crowe concluded likewise in Beta at [84]. However, nether decision considered the scope of this subrule in reaching these conclusions.

60․It is uncontentious that the objective component of r 503 should be assessed from the perspective of a reasonable person (or a “reasonable reader”). In Brown v Jammal, Kirby P held that the question of whether the mistake so identified was misleading or such as to cause reasonable doubt “must be judged by the response of the reasonable reader to receiving the document containing the ‘mistake’”: Brown v Jammal at 17.

61․Similarly, in Brando Aus Holdo Pty Ltd v Gary Shayne as representative of the persons identified in Schedule 1 [2021] NSWSC 998 at [72(b)],[1] Rees J held that:

[1]Leave to appeal against this decision was refused in Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 at [25] (Leeming JA, with whom Meagher JA agreed, Brereton JA dissenting). In so holding, the appeal judges did not consider her Honour’s formulation of the objective component of the provision.

… [the] objective component [focuses] on how the mistake would have been perceived by those familiar with the issue sought to be agitated in the proceedings, that is, whether those in the ‘know’ would have readily understood that a mistake had been made and apprehended who the correct defendant was, such that it is just and fair to grant the amendment.

62․I do not understand Rees J’s formulation in Brando to differ in substance from Kirby P’s formulation in Brown v Jammal. Both formulations require an objective assessment of the pleading sought to be amended. I understand Rees J’s reference to a person who is “in the know” to be to a person who has an understanding of the legal nature of the issues that are in dispute.

Determination

63․All parties to the present applications relied on the High Court’s decision in Bridge Shipping. The defendants contended that the present case is on all fours with that decision. They contended that r 503 does not apply in the present case because, like the defendant in Bridge Shipping, the present plaintiff had always intended to sue the owner(s) of the property, and it was only after he was informed that the owners were not liable that the plaintiff determined to sue the present defendants as occupiers of the property.

64․In contrast, the plaintiff submitted that Bridge Shipping should be distinguished, because he made it clear in his Statement of Claim that he intended to sue the owner and/or occupier, and that his mistake was as to the “name of the entity that owned or occupied the property… and owed the duty”. The plaintiff’s counsel explained that this mistake arose as a result of the “complex contractual arrangements in place between Perpetual and the First and Second Defendants which were not known to the Plaintiff at the time the proceedings were commenced”.

65․There is some force in the plaintiff’s submission that the present case may be distinguished from Bridge Shipping. In Bridge Shipping, the amendment was refused because the defendant had intended to sue the owner and not the carrier. In contrast, in the present case, there is no indication in any of the iterations of the pleadings that the plaintiff intended to sue the owner and not the occupier of the property. At all times, the Statement of Claim described the defendant as the entity which “owned and/or occupied” the loading dock. Further, the duty that is pleaded in para [5] of the Further Amended Statement of Claim is a duty under s 168 of the Civil Law (Wrongs) Act 2002 (ACT), which imposes liability on the “occupier” of the premises.

66․On the other hand, however, the present case is also not on all fours with the scenario that the High Court held in Bridge Shipping would have permitted substitution, that is, if the defendant had always intended to sue the carrier and not the owner, and had simply been mistaken as to who the carrier was.

67․In the present case, it is not clear that the plaintiff always intended to sue the occupier (rather than the owner) of the property, and had simply misunderstood who the occupier was. The Amended Statement of Claim alleged that the defendants “owned and/or occupied” the property. It was not a mistake to identify Perpetual and Trust Company as the “owners and/or occupiers” of the property. Those companies were, at least, owners of the property. There is also no evidence before me that would demonstrate that they had relinquished the rights of occupation which would flow from that ownership.

68․The determination of whether the naming of Perpetual and Trust Company as defendants should be characterised as a mistake within the contemplation of r 503 is complicated by the sloppiness of the plaintiff’s pleadings. In the original Statement of Claim, the plaintiff described Challenger as “own[ing] and/or occup[ying]” the property, and alleged that Challenger had “exclusive care, control, management and administration of the property”. Although the Amended Statement of Claim joined two defendants (Trust Company and Perpetual) in place of Challenger, the pleading continued to refer to “the defendant” in the singular, alleging that “the defendant owned and/or occupied” the property and that “the defendant” had “exclusive care, control, management and administration of the property”.

69․Further, as noted above, in an application for substitution, it is usual for the person who made the mistake to provide an affidavit explaining how and why the mistake was made: Brown v Jamal at 13, cited at [56] above. No such affidavit was provided in the present case. Rather, as the defendants observed, in various affidavits relating to the substitution of Perpetual and Trust Company as defendants, the plaintiff’s solicitor indicated that his concern was to identify the true “owner” of the property.

70․I accept that there has been a genuine mistake on the part of the plaintiff’s legal representatives. However, it is not evident that that mistake is of the character that is required under r 503. The evidence indicates that the mistake that was made by the plaintiff’s legal representatives did not relate to the defendant’s identity: the plaintiff (correctly) understood that Perpetual and Trust Company were the “owners and/ or occupiers” of the property (there is no dispute that they were, at least, owners of the property). It may be that Honeywell and Colliers are also occupiers of the property. The case for liability against them may be stronger than the case that the plaintiff had against Perpetual and Trust Company. However, this would appear to be a mistake as to the liability of Perpetual and Trust Company, rather than as to their identity.

71․Another possible way of characterising the plaintiff’s mistake might be as not naming all entities who could be described as “owners and/ or occupiers” of the property. This is the issue that was considered in decisions in Greenwood and Sullivan, discussed above at [51] – [55]. As noted at [55] above, the differing outcomes in those decisions illustrate the need to give careful consideration of the plaintiff’s intent when commencing the action. Was it in fact the plaintiff’s intent to sue all entities who could be described as “owners and/ or occupiers” of the property?

72․Whilst the reference to “exclusive control” in the Statement of Claim might give some support to an inference that the plaintiff intended to sue all entities who may have had rights of occupation with respect to the property, in view of the lack of precision in the pleadings, this inference cannot be safely drawn. Further, as noted above, the Court does not have the benefit of any evidence from the plaintiff’s solicitor on this issue. Rather, the affidavit evidence before the Court suggests that when the Statement of Claim was originally filed, and amended on the first occasion, the concern of the plaintiff’s solicitor was to identity the true owner(s) of the property, rather than to identify all potential owners and/or occupiers. In these circumstances, I am not satisfied of the subjective component of r 503(2)(b)(i) of the CPR.

73․I am also not satisfied that r 503(2)(b)(ii) of the CPR has been met. As outlined above, r 503(2)(b)(ii) requires an objective assessment of the “mistake sought to be corrected”. The “mistake” has to be viewed against the pleadings as a whole.

74․The pleadings were vague and imprecise. The defendants were identified in the pleadings as the entity which “owned and/or occupied” the loading dock. The identification of defendants who met the description of owners (and may have also been occupiers) was likely to cause a reasonable doubt about the identity of the person intended to be sued.

75․Accordingly, the plaintiff has not established that substitution of Honeywell and Colliers as the first and second defendants fell within r 503(2)(b) of the CPR.

Whether discretion under r 514 should be exercised

76․For the reasons outlined above, I have accepted the defendants’ contention that r 503 of the CPR does not authorise their substitution as defendants in place of Trust Company and Perpetual. However, it does not necessarily follow from this conclusion that the order sought by the defendants should be made.

77․The defendants properly accepted the power conferred by r 514(4) of the CPR to direct that the proceeding as amended be “taken to have started when the original proceeding started” is discretionary in nature. However, they contended that the only correct exercise of that discretion would be to make the order sought. In particular, the defendants submitted that as an order for substitution should not properly have been made under r 503, an order should be made under r 514(4), which would have the effect of putting them in the same position as if the order for substitution had not been made.

78․I do not agree. In determining whether to exercise the discretion under r 514(4), it is necessary to consider the prejudice that has been, or would be, occasioned to all parties if the order were, or were not made. The past conduct of all parties in the litigation is also a relevant consideration in making this determination.

79․The defendants could have appealed McWilliam AsJ’s orders. The defendants did not do this, but instead chose to collaterally challenge her Honour’s orders in an application under r 514(4) of the CPR. This collateral application was first made well over a year after the making of the orders sought to be impugned, and after the substantive proceedings were first listed for trial.

80․If the defendants had appealed McWilliam AsJ’s orders, and if the defendants had been successful in that appeal, McWilliam AsJ’s orders substituting Perpetual and Trust Company for Honeywell and Colliers, would have been set aside. In that event, Perpetual and Trust Company would have remained defendants on the plaintiff’s claim. In contrast, an order under r 514(4) of the CPR would not reinstate Perpetual and Trust Company as defendants to the proceedings. An order under r 514(4) of the CPR would have the effect of enlivening a limitation provision against the only defendants who remain to the plaintiff’s claim.

81․In the hearing before me, there was a dispute about whether the enlivening of the limitation period would effectively terminate the plaintiff’s claim. In a reversal of the positions that might usually be expected, the plaintiff contended that an application of the Limitation Act would entirely preclude him from recovering against the present defendants, whereas the defendants contended that it is possible that there “may” remain a “possible” avenue for the plaintiff to maintain a claim (in particular, relating to the plaintiff’s psychological injuries). It is not necessary to resolve this dispute. It suffices to conclude that any possible remaining claim that the plaintiff may have against the present defendants if the limitation period were applied is not at all strong. Likewise, whilst I am unable to precisely assess the plaintiff’s prospects of success against Perpetual and/or Trust Company had the substitution been set aside, it could not be said that the plaintiff would have had no valid claim against those entities. In these circumstances, I am satisfied that the making of the order sought by the defendants would occasion unfair prejudice to the plaintiff.

82․In summary, the defendants could, and should, have appealed against McWilliam AsJ’s orders in a timely manner. They did not do so. The mechanism by which the defendants now seek to impugn her Honour’s orders would have an unfairly prejudicial effect upon the plaintiff. It would be inappropriate for the Court to now make orders which would have this prejudicial effect where the defendants’ position would have been fully protected if they had appealed McWilliam AJ’s order at the time that it was made.

83․Accordingly, I refuse the defendants’ application for an order under r 514(4) of the CPR.

84․As I have refused both the plaintiff’s and the defendants’ applications, the orders of McWilliam AsJ substituting Honeywell and Colliers as the first and second defendants will continue to have effect. As a result of r 514(3), the substitution of those parties is deemed to be effective as of the commencement of the proceedings for the purposes of considering the limitation period. It follows that the proceedings against Honeywell and Colliers will not be subject to the limitation period prescribed by s 16B of the Limitation Act.

Orders

85․For those reasons, the following orders are made:

(1)The plaintiff’s application filed on 14 May 2024 seeking amendment of the court order dated 11 November 2022 is dismissed; and

(2)The first defendant’s application filed on 8 May 2024 seeking an order that pursuant to r 514(4) of the Court Procedure Rules, the proceeding (amended pursuant to the court order dated 11 November 2022), is taken to have started on 11 November 2022 is dismissed.

I certify that the preceding eighty five [85] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: