Smith v High Energy Service Pty Ltd

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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:

  1. 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.

  2. 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).

  3. 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…

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Details
Case
[2020] WADC 119
Decision Date

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.

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Evidence

Evidence Before The Court

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