Smith v High Energy Service Pty Ltd
[2020] WADC 119
•26 AUGUST 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SMITH -v- HIGH ENERGY SERVICE PTY LTD [2020] WADC 119
CORAM: LEMONIS DCJ
HEARD: 17 AUGUST 2020
DELIVERED : 26 AUGUST 2020
FILE NO/S: CIV 497 of 2017
CIV 343 of 2018
(Consolidated by orders dated 15 August 2018)
BETWEEN: GLENN ANTHONY CHARLES SMITH
Plaintiff
AND
HIGH ENERGY SERVICE PTY LTD
First Defendant
RICHARDS ENERGY SERVICES
Second Defendant/First Third Party
VICINITY MANAGER PTY LTD
Third Defendant/Second Third Party
PERRON INVESTMENTS PTY LTD
Fourth Defendant/Third Third Party
VICINITY CUSTODIAN PTY LTD
Fourth Third Party
Catchwords:
Application to amend writ such as to add additional defendant - Whether amendment constitutes a correction in the name of a defendant
Legislation:
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr A J Stewart |
| First Defendant | : | No appearance |
| Second Defendant/First Third Party | : | No appearance |
| Third Defendant/Second Third Party | : | Ms B A Mangan |
| Fourth Defendant/Third Third Party | : | Ms B A Mangan |
| Fourth Third Party | : | Ms B A Mangan |
Solicitors:
| Plaintiff | : | Chapmans |
| First Defendant | : | Kott Gunning |
| Second Defendant/First Third Party | : | Hall & Wilcox |
| Third Defendant/Second Third Party | : | Herbert Smith Freehills |
| Fourth Defendant/Third Third Party | : | Herbert Smith Freehills |
| Fourth Third Party | : | Herbert Smith Freehills |
Case(s) referred to in decision(s):
Alinta 2000 Ltd v Petkov [2012] WASCA 258
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Galloway v Minister for Health [No 2] [2015] WADC 119
Lois Nominees Pty Ltd v Hill [2011] WASC 53
Pave Wealth Services Pty Ltd v Danielle Jones as Executrix of the Estate of Michael Frederick Jones [2019] WADC 21
LEMONIS DCJ:
The plaintiff applies by summons to amend the consolidated writ of summons and the consolidated statement of claim to add Vicinity Custodian Pty Ltd (Vicinity Custodian) as the fifth defendant to the proceedings. Vicinity Custodian is presently the fourth third party in the proceedings.
The plaintiff's proceedings are in respect of an explosion that occurred in a power substation of the Morley Galleria Shopping Centre on 3 February 2015, as a result of which the plaintiff suffered significant injuries. The relevant limitation period expired on 2 February 2018.[1]
[1] Limitation Act2005 (WA) s 14(1).
At the time of the explosion, the plaintiff was employed by the first defendant as an electrician and was attending the power substation in that capacity. The plaintiff alleges the second defendant was engaged and/or contracted by the first defendant to assist with services relating to the power substation. The plaintiff alleges that the third and fourth defendants 'jointly owned and/or operated' the shopping centre. The first defendant has brought third party proceedings against the second, third and fourth defendants and also against Vicinity Custodian. The third party claim against Vicinity Custodian arises out of it being the property manager of the shopping centre.[2]
[2] First defendant's amended statement of claim against the fourth third party filed 24 March 2020, par 4.
The plaintiff now seeks to add Vicinity Custodian as a defendant to the consolidated proceedings. In essence, the plaintiff contends Vicinity Custodian was an operator of the shopping centre at the relevant time. Further the plaintiff contends that when he commenced the proceedings he intended to sue all owners and operators of the shopping centre, but did not appreciate that Vicinity Custodian in effect managed the shopping centre.
In respect to the proceedings themselves, two separate sets of proceedings were initially commenced, being CIV 497 of 2017 and CIV 343 of 2018. In CIV 497 of 2017, the plaintiff sued the first defendant only. In CIV 343 of 2018 the plaintiff sued the second, third and fourth defendants to the consolidated proceedings (which were respectively the first, second and third defendants to the 2018 proceedings).[3] By order of this court made 15 August 2018, the proceedings were consolidated. The trial of the consolidated proceedings is listed to commence on 12 October 2020. It was listed earlier this year to commence on 3 February 2020, however I ordered the vacation of those trial dates.
[3] The plaintiff's claim against the fourth defendant named on the 2018 writ has not been pursued.
The plaintiff has filed an affidavit in support of the application of Mr Hawkins, who is a solicitor employed by the firm of solicitors which represents the plaintiff.
The application is opposed by Vicinity Custodian and it has filed an affidavit in opposition of Ms Russo, who is a solicitor employed by Vicinity Custodian's solicitors.
Mr Hawkins in his affidavit states that:
Between 14 January 2020 and 17 July 2020 the Plaintiff did not take steps to resolve this issue and the Plaintiff does not have a reasonable excuse for this delay.[4]
[4] Mr Hawkins' affidavit, par 55.
The relevance of 14 January 2020 is because on the previous day, 13 January 2020, the plaintiff's solicitors first sought the consent of Vicinity Custodian to it being added as a defendant to the proceedings.
The delay in bringing the application is inexcusable. This is a relevant factor in considering whether to grant the requisite leave, however it is not a determinative factor. The delay is attributable to the conduct of the plaintiff's legal practitioners. I very much appreciate the stress and demands of legal practice. However, it also must be remembered that litigation is conducted for the parties and invariably causes them great stress and anxiety. It is therefore imperative that litigation is conducted as promptly as reasonably possible so as to ensure that stress and anxiety is not unnecessarily exacerbated.
Vicinity Custodian frankly concedes that it will not suffer any material prejudice if joined as a defendant to the proceedings, given its involvement in the proceedings as a third party.
I propose to deal with the application in the following way:
(a)by addressing the plaintiff's application to amend the writ of summons pursuant to O 21 r 5 to correct a mistake in only naming the third and fourth defendants as the responsible defendants in respect of the operation of the shopping centre; and
(b)to assess the application by way of an application for joinder of Vicinity Custodian as a defendant pursuant to O 18 r 6, with consequential amendments to the writ of summons and the statement of claim to effect such joinder.
Order 21 r 5
The primary basis for the plaintiff's application is O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules). This rule was substantially altered with effect from 1 March 2018. The amendment deleted the previous rule and replaced it with a new rule. The amendment was made as a consequence of the Court of Appeal decision in Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[5]
[5] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127.
Before addressing the reasons in Belgravia, I propose to first address the earlier Court of Appeal decision in Alinta 2000 Ltd v Petkov.[6] In Alinta, the plaintiffs there had obtained leave in this court to correct the name of the defendant from Alinta 2000 Ltd (Alinta 2000) to Alinta Sales Pty Ltd (Alinta Sales). These were both extant corporate entities. The claim in Alinta arose out of an explosion at the plaintiffs' home caused by a gas leak. Approximately a year before the explosion, the Alinta business was restructured such that the entity responsible for the sale and supply of gas was Alinta Sales, which was a wholly owned subsidiary of Alinta 2000.
[6] Alinta 2000 Ltd v Petkov [2012] WASCA 258.
After the limitation period had expired, Alinta 2000 filed a defence to the effect that it was not the entity which supplied the gas. The plaintiffs then applied pursuant to O 21 r 5 to amend the name of the defendant from Alinta 2000 to Alinta Sales. The application was granted and Alinta 2000 then appealed. The appeal was determined by reference to the prior iteration of O 21 r 5. The Court of Appeal upheld the decision granting leave to amend and dismissed the appeal.
In Alinta, the Court of Appeal considered the application of the then O 21 r 5(2) and r 5(3), which were in the following terms:
(2)Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.
(3)An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
Buss JA and Murphy JA both delivered detailed reasons explaining the history of the rule and also considering the application of similar rules elsewhere in Australia and in England. Martin CJ agreed with Murphy JA and made some additional observations. Buss JA was of the view that the issue of whether the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued is to be determined on an objective basis.[7] Murphy JA considered that to be the better view.[8] Buss JA agreed generally with the reasons of Murphy JA in finding that the grounds of appeal were not made out.[9]
[7] Alinta [38].
[8] Alinta [113].
[9] Alinta [59] - [64].
Both Buss JA and Murphy JA referred to the decision of McHugh J (with whom Brennan and Deane JJ agreed) in Bridge Shipping Pty Ltd v Grand Shipping SA,[10] where in the context of the Rules of the Supreme Court of Victoria, McHugh J considered the available categories of mistake which would permit an amendment to correct the name of a party. McHugh J held that the categories of mistake were not limited to cases of misnomer, misdescription, typographical or clerical error, but also covered cases where a plaintiff intended to sue a person identified by a particular description, yet was mistaken as to the name of the person who answered that description.[11]
[10] Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231.
[11] Bridge (261).
McHugh J explained these distinct categories of mistake as follows:[12]
[A] plaintiff may make 'a mistake in the name of a party' not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake 'in the name of a party' because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake 'in the name of a party' because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, 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 that person.
[12] Bridge (260)
Buss JA agreed with an earlier decision of McLure JA in Brandsma & Crockett Pty Ltd v Heindal Pty Ltd[13] that McHugh J's reasoning applied to O 21 r 5(3).[14] Murphy JA considered McHugh J's judgment provided guidance to the operation of O 21 r 5.[15]
[13] Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96 [39] - [41].
[14] Alinta [27].
[15] Alinta [105].
The requisite amendment in Alinta was regarded as an amendment to correct a mistake in naming Alinta 2000 as the defendant on the writ.[16] It seems to me this mistake was not a misnomer, misdescription, typographical or clerical error, but instead was a case where the plaintiff intended to sue a person identified by a particular description, but was mistaken as to the name of the person who answered that description.[17] The Court of Appeal was satisfied this amendment could be made even though the applicable limitation period had expired.
[16] Alinta [116] (Murphy JA, with Martin CJ & Buss JA agreeing at [1] and [59] respectively).
[17] Alinta [59] (Buss JA & [116] Murphy JA).
Belgravia concerned an application by a plaintiff pursuant to the previous iteration of O 21 r 5 to amend the indorsement of claim on a writ of summons by introducing three additional paragraphs in the description of the claim and seven additional paragraphs in the prayer for relief.[18] The primary judge had refused the application, holding that the amendments added a new cause of action and further that it was not open to the plaintiffs to seek in that action an extension of the limitation period which had expired.[19]
[18] Belgravia [6].
[19] Belgravia [17] - [22].
The outcome of the appeal was ultimately determined by resolution of the question of whether, if the proposed amendments did add a new cause of action, was it so clear that a foreshadowed limitation defence would succeed, thus rendering the amendments futile.[20] The Court of Appeal held that as it was possible the plaintiffs might succeed in an application to extend the limitation period, the foreshadowed limitation defence would not necessarily succeed.[21] The Court of Appeal therefore allowed the appeal and granted leave to amend.[22]
[20] Belgravia [48]
[21] Belgravia [55].
[22] Belgravia [61].
As can be seen, Belgravia did not concern an application to amend so as to correct a mistake in the name of a party.
In Belgravia, the Court of Appeal expressed the following view in respect of O 21 r 5:[23]
Subrule (1) of the rule confers a general power on the court to permit a writ to be amended at any stage of the proceedings.
Subrule (2), and the specific instances in which that power may be exercised and for which provision is made in subrules (3), (4) and (5), are all concerned with the circumstance in which an application for leave is made after any relevant period of limitation current at the date of the issue of the writ has expired between the issue of the writ and the application to amend. It is clear that all four paragraphs of the rule presuppose the operation of the doctrine of 'relation back', which assumed that any amendment allowed in the exercise of the general power conferred by subrule (1) would take effect as if included on the original writ. That is the doctrine which underpins the rule in Weldon v Neal which is based on the avoidance of prejudice to defendants as a result of being deprived of a limitation defence because any amendment allowed will be taken to relate back to the date of the issue of the writ. As will be seen, authoritative decisions of this court have had the effect that the doctrine of relation back no longer applies in Western Australia, if it ever did, with the result that the rule in Weldon v Neal has no continuing application and subrules (2) - (5) of O 21 r 5 have little or no continuing utility.
(italics added)
[23] Belgravia [26] - [27].
I consider the phrase 'little or no continuing utility' italicised above should be read with [52] of the reasons in Belgravia, where the court stated:
… following the demise of any doctrine of 'relation back', 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.
A fundamental aspect of the reasoning in Belgravia that subrules (2) ‑ (5) lacked substantive continuing utility was that the Rules cannot overcome the application of the Limitation Act and the limitation legislation operates by reference to the commencement of the action.[24]
[24] Belgravia [34] - [39], [43].
The court in Belgravia also recognised that an application to amend a writ was not the sole province of subrules (2) - (5) of O 21 r 5, and that an application could still be brought under subrule (1), even where limitation issues arose.[25]
[25] Belgravia [53].
The authorities referred to in the analysis undertaken in Belgravia do not include Alinta. Two members of the Court of Appeal in Belgravia also sat in Alinta. While Alinta arose in the context of the previous iteration of O 21 r 5, the effect of the decision is that an amendment to correct the name of a party can be made after the expiry of the applicable limitation period. The separate reasons of the members of the Court in Alinta do not rely on the relation back doctrine for the outcome. The court in Belgravia did not express the view that Alinta was wrongly decided.
As I understand it, the rationale underpinning the result in Alinta is that the correction of a mistake in the name of a party does not involve the addition of a new cause of action, but instead allows in effect the correction or rectification of the existing cause of action to accurately reflect the name of the defendant which the plaintiff intended to sue. This is because the mistake, viewed objectively, is such that there is no reasonable doubt as to the identity of the person intended to be sued. In this respect, in Bridge, Dawson J considered the limitation issues that might arise from the correction of a party's name and observed:[26]
The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as misnamed or misdescribed. In such a case, at least as a matter of theory, no question of defeating a statute of limitations arises.
[26] Bridge (238) - (239).
From my and the parties' research, whether the outcome in Alinta remains valid in light of the decision in Belgravia has not been considered by the Court of Appeal. Nor has the question whether the categories of mistake would now be limited only to the category of cases of misnomer, misdescription, typographical or clerical error, and not include the category of cases where the plaintiff intended to sue a person identified by a particular description, but was mistaken as to the name of the person who answered that description. In this respect, in Brandsma, McLure JA considered that the inherent power of the court to permit an amendment to correct a name of a party only arises in respect of the first category. [27]
[27] Brandsma [32].
For these reasons, until decided otherwise, I proceed on the basis that an amendment to correct a mistake in the name of a party can be made after the limitation period has expired, however whether such an amendment should be permitted is very much dependent upon the nature of the mistake made.
I now need to address the amendments made to O 21 r 5. The new subrule (2) is in broader terms than the previous subrule (1), subrule (2) expressly recognising that an amendment may be made 'without determining whether any relevant period of limitation has expired'.
I do not consider the amendment of O 21 r 5 so as to remove, amongst other provisions, subrule (3) has the result that an amendment to correct a mistake in the name of a defendant cannot be made after the limitation period has expired. In my view, the breadth of the new O 21 r 5(2) is such as to permit such an amendment, bearing in mind that O 21 r 5(2) remains a remedial provision. However, this is still subject to my observation at [30] that the mistake must be such that viewed objectively, there is no reasonable doubt as to the identity of the person intended to be sued.
In addition, as Vicinity Custodian's counsel points out in her written submissions:[28]
Since Order 21 r 5 was amended with effect from 1 March 2018, the Court's paramount consideration in the exercise of its discretion is by reference to the attainment of the goals sets out in Order 1 r 4A and the objects set out in Order 1 r 4B(1).
Vicinity Custodian also conceded that:[29]
… the exercise of this discretion would include correcting a mistake in appropriate circumstances.
[28] Fourth third party's written submissions, par 42.
[29] Fourth third party's written submissions, par 43.
The plaintiff in his counsel's written submissions referred to what Parliament's intention was in respect of the amendment to O 21 r 5. However, the Rules are made by a majority of judges of the Supreme Court: s 168 of the Supreme Court Act 1935 (WA). The Rules are then laid before Parliament and either House of Parliament may pass a resolution disallowing any such rule, with the result that the rule shall then cease to have any continuing effect: s 170 of the Supreme Court Act. It is not therefore Parliament's intention which is apposite. In my view, the clear intent of the amendments is to reflect the Court of Appeal's reasoning in Belgravia. In this respect, the amendment gives effect to the court's reasons that the prior subrules (2) - (5) had no substantive continuing utility, that the approach to the assessment of whether an amendment adds a new cause of action should not be overly rigid or technical, and limitation issues are usually best left for determination at trial.[30]
[30] In respect of this last aspect, see Belgravia [47].
Order 21 r 5(1)(a) states that the rule is expressed to be subject to O 18 r 6, r 7 and r 8. In respect of the previous iteration of Order 21 r 5, Beech J held in Lois Nominees Pty Ltd v Hill,[31] that it did not apply in respect of an application to amend a writ so as to add a new party. His Honour held such an application was the sole province of O 18 r 6, r 7 and r 8.[32]
[31] Lois Nominees Pty Ltd v Hill [2011] WASC 53.
[32] Lois Nominees [81] - [84].
However, the scenario which presented in Lois Nominees did not involve a correction to the name of an existing party. Rather, it involved the addition of an entirely new party. I do not read the reasons in Lois Nominees as being to the effect that an amendment to correct a mistake in the name of a party must be made under O 18 r 6, r 7 or r 8. Further, Alinta was decided after Lois Nominees.In my view, the reasoning in Alinta recognises there is a difference between an application to correct a mistake in the name of a party, compared to an application to add a new party to the proceedings.
For these reasons overall, I am satisfied that O 21 r 5 can be relied upon to apply to amend a writ to correct a mistake in the name of a defendant, even though the applicable limitation period has expired.
That being so, a critical question in the determination of this application is whether the amendments sought to be made by the plaintiff are in substance a correction to a mistake in the name of a party, or instead, constitute the addition of a new party. If it is the latter, then O 18 r 6 would apply and limitation issues would then need to be considered.
Is there a mistake in the name of a defendant?
The writ of summons in the 2018 proceeding does not identify the capacity in which the defendants were sued. The indorsement of claim to the writ states:
THE PLAINTIFF'S CLAIM is for damages for personal injuries caused to the Plaintiff as a result of the negligence and/or breach of statutory duty by the Defendants, their servants and/or agents on or about 3 February 2015.
The plaintiff now seeks to amend the writ in the consolidated proceedings so as to include Vicinity Custodian as the fifth defendant on the basis that the plaintiff:[33]
… intended to sue the corporate entity which owned and/or operated and/or had control of the Galleria Shopping Centre and of which entered into the relevant contracts/agreements with the First Defendant, the Plaintiff's employer.
[33] Plaintiff's written submissions, par 9.
The plaintiff seeks to achieve this by adding Vicinity Custodian as a fifth defendant to the consolidated proceedings and by re-amending the amended consolidated statement of claim to add the words 'and/or fifth Defendant' to the current allegations made against the third and fourth defendant. The most pertinent example of this is in respect of par 9 of the amended consolidated statement of claim. It presently alleges that the shopping centre was owned and/or operated by the third and/or fourth defendants. The plaintiff proposes to amend par 9 to read the shopping centre was '[j]ointly owned and/or operated by the third and/or fourth and/or fifth defendant.' As can be seen, the designation of the third and fourth defendants, and the capacity in which they are sued, remains unchanged by the proposed amendment.
In effect, what the plaintiff seeks to do is to expand the defendants to his claim so as to include another entity who he believes may be responsible. In my view, this is a different proposition to amending to correct an error in the designation of the current defendants. The effect of the plaintiff's argument is that where a plaintiff seeks to sue a class of defendants as being responsible for a particular claim - for example, all medical practitioners involved in an operation, or all lawyers who advised on a particular transaction - that plaintiff can then expand upon the defendants initially sued as constituting the applicable class, even though the limitation period has expired.
Understood in this way, the mistake is not as to the name of an existing party within either of the categories referred to by McHugh J in Bridge.[34] Here, the plaintiff maintains a claim against each of the third and fourth defendants in the same capacity in which he did prior to this application being brought, namely as owners and/or operators of the shopping centre.[35] The plaintiff does not suggest the third and fourth defendant's joinder, or the capacity in which they were sued, was a mistake. Rather, the plaintiff's mistake is that at the time of filing the writ he thought the entities who fell within the class of those he intended to sue were limited to the third and fourth defendants. So, the mistake is not one as to the name of an existing defendant; instead it is a mistake as to the size of the class of persons that he intended to sue. In effect, what the plaintiff seeks to do by this application is to expand upon the group of entities that meet the characterisation of owner/operator.[36]
[34] The categories are described at [19] and [46] of this judgment.
[35] Proposed minute of re-amended consolidated statement of claim, par 9.
[36] Proposed minute of re-amended consolidated statement of claim, par 9.
In both written and oral submissions, the plaintiff placed much emphasis on the decision in this court in Galloway.[37] However, as I raised with the plaintiff's counsel, it seems to me the position in Galloway is markedly different to that which presents here. In Galloway, the plaintiff sued for personal injuries arising out of her treatment at the Swan District Hospital and subsequently, the Northam Hospital. The plaintiff initially sued her general treating doctor and the Minister for Health. The plaintiff mistakenly believed that the Minister was responsible for the operation of both hospitals and thus vicariously liable. As her Honour Judge Braddock described it, the Minister was ascribed 'two hats' by the writ.[38] However, the WA Country Health Service was responsible for the operation of the Northam Hospital. Thus, the plaintiff applied to amend the writ to include the WA Country Health Service as a defendant. The amendment was allowed on the basis that the designation of the Minister as being responsible for both hospitals was a mistake and the Minister should only have been sued as having been responsible for the Swan District Hospital. Here, there is no suggestion that there is any mistake in the joinder of, or naming of, the third and fourth defendants, or as to the capacity in which they are sued.
[37] Galloway v Minister for Health [No 2] [2015] WADC 119.
[38] Galloway [27].
The plaintiff also placed much emphasis on the decision in Bridge. I have set out above at [19] the distinct categories of mistake alluded to by McHugh J in Bridge. I adopt the summary of the factual scenario presented in Bridge as set out by Murphy JA in Alinta:[39]
The owner of damaged goods commenced proceedings against Bridge Shipping (Bridge) through which it had arranged carriage. Bridge had employed another company to arrange the carriage of the goods, but was unaware of the identity of the carrier. Bridge's solicitor undertook a search of the register which revealed that the owner of the vessel was Grand Shipping (Grand). Bridge issued a third party notice against Grand. After the expiration of the relevant limitation period, Grand delivered its defence to the third party claim in which it disclosed that Grand had chartered the vessel to a different company, Rainbow, which had been the carrier of the damaged goods. Bridge applied to amend its third party notice to substitute Rainbow (the carrier) for Grand (the owner). The application was refused by the master and an appeal to a judge and then the Full Court of the Supreme Court was dismissed. The High Court also dismissed the appeal.
[39] Alinta [100].
McHugh J ultimately held that Bridge made no mistake as to the description of the party which it wished to sue, it intending to sue the owner and having done so.[40] His Honour also held that:[41]
If Bridge had intended to sue the carrier and had mistakenly believed that the name of the carrier was Grand, it would follow that Bridge had make a mistake 'in the name of a party'.
[40] Bridge (262)
[41] Bridge (261) - (262).
It seems to me the analysis undertaken by McHugh J reveals the difficulty with the plaintiff's application. As his Honour described it, there must be a mistake directed to the name of the defendant that is sued. In Alinta, Buss JA described the requisite mistake in the following terms:[42]
A plaintiff who applies for leave to amend will necessarily have made a mistake in relation to the defendant. However, the mistake must be as to the name of the defendant. The writ of summons will not have correctly named the person who the plaintiff intended to sue.
[42] Alinta [25].
These observations are directed to a mistake in the name of an existing defendant.
The plaintiff's counsel in oral submissions also advanced the argument that the third and fourth defendant formed part of the same corporate group as Vicinity Custodian and what the plaintiff was seeking to do was correctly name the members of the group responsible for the shopping centre. Further, the plaintiff's counsel submitted that Vicinity Limited was the ultimate holding company of the third defendant and Vicinity Custodian.[43] During the course of his oral submissions on this point, the plaintiff's counsel indicated that if the operator of the shopping centre was independent to the third and fourth defendants, then the plaintiff would not be able to assert there was the requisite mistake by not joining that operator as a defendant.[44]
[43] ts 208.
[44] ts 234.
It seems to me this qualification on the plaintiff's argument such that it rests on the third and fourth defendants, and Vicinity Custodian, being part of the same group is inconsistent with the plaintiff's stated intention as referred to in Mr Hawkins' affidavit, which was an intention to sue 'the owner and/or occupier and/or operator',[45] whomever they may be.
[45] Mr Hawkins' affidavit, par 66.
There is no evidence before me as to the corporate structure of the fourth defendant. Mr Hawkins' affidavit annexed current and historical Australian Securities and Investments Commission (ASIC) searches for Vicinity Custodian and the third defendant.[46] The ASIC search in respect of Vicinity Custodian was conducted on 3 January 2020 and reports that its ultimate holding company is Vicinity Limited.[47] This was notified to ASIC by Form 7E4615991, which was lodged on 26 July 2012.[48] Therefore, Vicinity Limited was the ultimate holding company of Vicinity Custodian at the time the plaintiff suffered his injuries on 3 February 2015. In respect of the third defendant, the position appears to be less clear. The ASIC search for the third defendant reports that its sole shareholder is Vicinity Limited.[49] However, in the period from 16 May 2014 to 28 October 2015 the third defendant was an unlisted public company by the name of Federation Manager Ltd.[50] From 29 October 2015 to 10 November 2016 it was known as Vicinity Manager Limited, and then converted to its current proprietary limited status. It is not immediately apparent to me what shareholding Vicinity Limited held in the third defendant as at 3 February 2015, when the third defendant was still an unlisted public company. The third defendant and Vicinity Custodian did however have the same principal place of business as at 3 February 2015, being Level 28, 35 Collins Street Melbourne[51] and shared common directors.[52]
[46] Annexure MPH9, pages 106 -177 in respect of Vicinity Custodian and pages 277 ‑ 395 in respect of the third defendant.
[47] Mr Hawkins' affidavit, page 114.
[48] Mr Hawkins' affidavit, page 174.
[49] Mr Hawkins' affidavit, page 288.
[50] Mr Hawkins' affidavit, page 278.
[51] Mr Hawkins' affidavit, pages 108 and 280.
[52] Mr Hawkins' affidavit, pages 109 ‑ 110 and pages 281 ‑ 282.
In any event, presuming that as at 3 February 2015 Vicinity Custodian was from the same group of companies as the third defendant, in my view this does not alter the position. The plaintiff's position would remain that of seeking to add to the class of defendants that he has sued, as opposed to correcting a mistake in the name of those defendants.
For these reasons, in my view what the plaintiff seeks by his amendments does not constitute a correction of a mistake in the name of an existing defendant within either of the categories referred to by McHugh J in Bridge. I therefore refuse the plaintiff's application pursuant to O 21 r 5.
In coming to the view which I have, I appreciate that limitation issues are usually best left for trial.[53] However, here, the plaintiff accepts the limitation period has expired and as I explain below, the plaintiff does not presently intend to make an application to extend that period in reliance on any of the provisions contained within pt 3 div 3 of the Limitation Act. That being so, the only basis put forward by the plaintiff justifying the effective addition of Vicinity Custodian as a defendant is by way of correcting a mistake in the name of the existing defendants. There is nothing that will occur at trial which affects the determination of that issue.
Order 18 r 6: Limitation issues
[53] Belgravia [47].
The alternative basis upon which the plaintiff's application could be brought is pursuant to O 18 r 6 by adding Vicinity Custodian as a defendant.
The plaintiff accepts the limitation period for the bringing of a claim against Vicinity Custodian has elapsed: See s 14(1) of the Limitation Act. Vicinity Custodian says that it will plead a limitation defence if joined as a defendant.[54] Therefore, Vicinity Custodian says its joinder as a defendant is futile. I am very conscious that in Belgravia the court referred to the prospect of an application being brought to extend the limitation period as being a relevant consideration in favour of allowing an amendment.
[54] Fourth third party's written submissions, par 37.
During the course of oral submissions, I raised with the plaintiff's counsel whether any such application would be brought and particular attention was given to s 39 of the Limitation Act. The plaintiff's counsel informed me that the plaintiff has considered his position in this respect and does not presently intend to bring an application to extend the applicable limitation period. That being so, I accept Vicinity Custodian's submission that its joinder now is futile. Therefore, I would refuse to allow the joinder of Vicinity Custodian under O 18 r 6 in the present circumstances. If the circumstances change regarding an application to extend the limitation period, the position can then be reconsidered.
Evidence
The evidence filed by the plaintiff in support of the application was quite limited in respect of his intention at the time of filing the writ. At its highest, Mr Hawkins' affidavit stated:[55]
I am aware, from perusal of the file and discussions with the Plaintiff that at the time of filing the additional Writ the Plaintiff intended to commence proceedings against the owner and/or occupier and/or operator of the Morley Galleria Shopping Centre.
[55] Paragraph 66.
This evidence is a high level conclusion, where the separate factual bases for the conclusion are not described in adequate detail. As such, it carries little weight. In oral submissions, the plaintiff's counsel submitted that the conduct of the proceedings post the filing of the writ supported the conclusion set out in Mr Hawkins' affidavit. However, in my view the conduct of the proceedings is equivocal and does not necessarily overcome the deficiencies in Mr Hawkins' affidavit.
By way of example, in the statement of claim filed in the 2018 proceedings, the plaintiff sued the third and fourth defendants to the consolidated action (the second and third defendants named on the writ to the 2018 proceeding) as jointly owning the shopping centre.[56] The allegations of breach against them included that they had the power to direct the manner in which services and work would be carried out and that they occupied or had control of the shopping centre.[57] Further, the statement of claim specifically addressed the position of Vicinity Custodian as follows:[58]
At all material times and on or about the period from 2 February 2015 to 3 February 2015 ('the material date') Second and/or Third Defendants, through their appointed property manager, Vicinity Custodian Pty Ltd ('the property manager'), engaged High Energy Service Pty Ltd ('HES') to carry out various services at the shopping centre, including, inter alia, investigating the loss of power to substation 4 ('the services').
[56] Statement of claim in the 2018 proceedings filed 20 July 2018, par 10.
[57] Statement of claim in the 2018 proceedings filed 20 July 2018, par 13.
[58] Statement of claim in the 2018 proceedings filed 20 July 2018, par 6.
In so far as Vicinity Custodian was concerned, the particulars of breach in the initial statement of claim were directed to a failure by the second and third defendants to prevent the property manager and others using the substation as a means of storage and further, a failure to assess the risks of it being used as a means of storage.[59]
[59] Statement of claim in the 2018 proceedings filed 20 July 2018, par 16 particulars (c) and (d).
Thus, the statement of claim expressly addressed the role of Vicinity Custodian and what reliance the plaintiff placed on it. No application was then made to join Vicinity Custodian as a defendant to the proceedings and from Mr Hawkins' affidavit the decision to do so was not made until on or about 13 January 2020.[60]
[60] Mr Hawkins' affidavit, par 51.
Overall, this is not necessarily consistent with an intention at the time of filing the writ in the 2018 proceedings to join the operator of the shopping centre, as distinct from the owners. In any event, as I indicated to counsel during oral submissions, if I was of the view the proposed amendment was permissible, I would have allowed the plaintiff to put on further evidence directed to the issue of intent.
Discretion
In my reasons for decision in Pave Wealth Services Pty Ltd v Danielle Jones as executrix of the estate of Michael Frederick Jones[61] at [16] ‑ [19], I set out the applicable considerations in respect of the exercise of the discretion to allow a late amendment. I adopt what I said there.
[61] Pave Wealth Services Pty Ltd v Danielle Jones as Executrix of the Estate of Michael Frederick Jones [2019] WADC 21.
It must be remembered that the underlying theme to the exercise of the discretion is the facilitation of justice. The exercise of the discretion is not intended to exact punishment on a party for their delay, although that may appear to be the practical effect of a refusal to exercise the discretion. As I have observed, the delay here is inexcusable. This matter has been extensively case managed this year and the plaintiff has repeatedly stated his readiness for trial, without averting to the issue now raised. However, there is no material prejudice to Vicinity Custodian, nor do any of the other parties to the proceedings assert any prejudice.[62] Further, Vicinity Custodian is already a party to the third party proceedings and it being added now as a defendant would not result in an adjournment of the upcoming trial. Accordingly, the delay would not in my view warrant my refusing to exercise the discretion to permit the amendment. Therefore, if the discretion had fallen to be exercised, I would have exercised it in favour of making the amendment sought.
Disposition of the application
[62] At the hearing on 24 July 2020 I directed the plaintiff to serve its submissions in support of the application upon all existing defendants and they were given the option of attending the hearing. Further, counsel and solicitors for Vicinity Custodian also represent the third and fourth defendants.
After having reached the views set out above, I have reflected further on this matter. In doing so, I have considered whether I should permit the joinder of Vicinity Custodian for expediency's sake so as to ensure it is a defendant in the upcoming trial. However, even though in the particular circumstances of this case there is a practical allure in doing so, in my view expediency alone is not sufficient to permit the joinder.
I refuse the plaintiff's application. My initial view is the plaintiff should pay Vicinity Custodian's costs of the application. I will hear from the parties as to the appropriate costs order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Associate to Judge Lemonis25 AUGUST 2020
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