Smith v High Energy Service Pty Ltd - [2020] WADC 119

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WADC 119
Decision Date: 26 AUGUST 2020

CaseChat Overview and Summary

In Smith v High Energy Service Pty Ltd, the plaintiff sought an amendment to the writ to add an additional defendant. The original writ named High Energy Service Pty Ltd as the defendant. However, the plaintiff claimed that the writ should have named a different entity, High Energy Services Pty Ltd, as the defendant. The dispute involved allegations of negligence and breach of contract arising from an incident at a worksite. The Federal Court of Australia was tasked with determining whether the amendment constituted a correction in the name of a defendant.

The court was required to decide whether the amendment of the writ to include the correct entity as a defendant was permissible under the rules of court. Specifically, the court needed to determine whether the amendment was a correction in the name of a defendant, which would allow for the amendment to be made without the consent of the existing defendant. The court also needed to consider whether the amendment would cause any prejudice to the existing defendant and whether the plaintiff had a bona fide basis for the amendment.

The court found that the amendment did constitute a correction in the name of a defendant. The court held that the two names, High Energy Service Pty Ltd and High Energy Services Pty Ltd, were sufficiently similar to warrant the amendment. The court noted that the error was likely due to a typographical error and that the correct entity was identifiable from the context of the proceedings. The court found that there would be no prejudice to the existing defendant as it would be able to respond to the claims even if the correct entity was named. The court also found that the plaintiff had acted promptly in seeking the amendment and had a bona fide basis for the amendment.

The court granted the application to amend the writ, allowing the plaintiff to add High Energy Services Pty Ltd as an additional defendant. The court ordered that the amendment be made and that the existing defendant, High Energy Service Pty Ltd, be given notice of the amendment. The court also ordered that the proceedings continue with the amended writ.

Orders