Stiles v Permanent Trustee Australia Ltd
[2005] VSC 86
•1 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST
No. 6436 of 2003
| PETER STILES AND OTHERS | Plaintiffs |
| V | |
| PERMANENT TRUSTEE AUSTRALIA LTD & PERMANENT TRUSTEE COMPANY LTD | Defendants |
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JUDGE: | Mandie J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2004 | |
DATE OF JUDGMENT: | 1 April 2005 | |
CASE MAY BE CITED AS: | Stiles v Permanent Trustee Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 86 | |
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PRACTICE AND PROCEDURE – application pursuant to RSC 36.01(1) & (4) to amend writ by substituting four individuals as plaintiffs for the name of a partnership – whether there was “a mistake in the name of a party” and a substitution of “another person” as a party for the purposes of RSC 36.01(4) & (5).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A McLelland | Brian Ward & Partners Pty Ltd |
| For the Defendants | Mr JD Elliott SC with Ms W Harris | Freehills (NB: Ebsworth & Ebsworth acting for the defendants since 19/1/05) |
HIS HONOUR:
By interlocutory process dated 13 December 2004, the plaintiffs applied for a number of orders, including the only matter with which these reasons are concerned, namely, an application pursuant to Rule 36.01(1) & (4) to amend the writ by substituting for the plaintiff presently named as “Duncan Dovico Partnership” the plaintiffs “Warren Alexander Duncan, Paul Dovico, Giancarlo Rocco Mascitelli and Patricia Anne Young trading as Duncan Dovico Partnership (a firm)”.
Jane Elizabeth Kupsch is employed by the solicitors for the plaintiffs and in an affidavit sworn 13 December 2004 (para 33) deposed that the 77th plaintiff is presently described as Duncan Dovico Partnership and that the correct description of the 77th plaintiff is Warren Alexander Duncan, Paul Dovico, Giancarlo Rocco Mascitelli and Patricia Anne Young trading as Duncan Dovico Partnership (a firm). By a further affidavit sworn 17 December 2004 (para 4) Ms Kupsch exhibits (JEK-17) a copy of an application for units in the investment that is the subject of this proceeding in which, under the heading “Duncan Dovico Partnership”, the full names of the four abovenamed individuals are set out and in which they are described as joint applicants.
Rule 36.01 provides (so far as relevant) that:
“(1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
…
(4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7) For the purpose of paragraph (6) "any other party to the proceeding" includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party…”
Submissions
Senior Counsel for the defendants, Mr Elliott, submitted that, pursuant to Rule 36.01(1) & (4), it might be that there would be nothing wrong with replacing “Duncan Dovico Partnership” with “Duncan Dovico Partnership (a firm)” but that, here, something else was sought to be done, namely, to introduce four individuals instead of the name of the firm. Mr Elliott submitted that the authorities supported the proposition that it was only possible to substitute one person, not a number of people, under that Rule.
Mr Elliott referred to the decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping S.A.[1] In that case goods had been damaged in transit by sea and the defendant had issued a third party notice against the registered owner of the vessel. The defendant later discovered that at the relevant time the vessel had been under charter to another company which had therefore been the carrier of the goods. The defendant applied to substitute the charterer as third party in place of the owner. The High Court held that the company had not made a mistake “in the name of a party” within Rule 36.01(4), because it had intended to sue the owner of the vessel. Rule 36.01(4) was concerned with mistakes as to the name of a party including mistakes as to the name of a party identified by a particular description but the rule was not otherwise concerned with mistakes as to the identity of a party. Mr Elliott referred to what was said in that case by McHugh J:[2]
“… 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. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X" The sub-rule applies equally to the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X" In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.
Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.”
[1](1991) 173 CLR 231.
[2](1991) 173 CLR 231, 260-261.
Mr Elliott then referred to McDonald v DGJ Group Pty Ltd,[3] a decision of Habersberger J. In that case the plaintiff, pursuant to Rule 36.01(4), sought to join “Deacons Graham & James (a firm)” in substitution for “DGJ Group Pty Ltd (ACN 001 805 205) T/AS Deacons” and also to join as defendants David Charles Coombes and Gadens Ridgeway (a firm). The original statement of claim pleaded that the defendant (“Deacons”) was a company duly incorporated and carrying on business under the registered business name of “Deacons” and that it was the successor in law to certain other law practices. In its defence, DGJ Group Pty Ltd denied that it was trading under the name of “Deacons” or that it was the successor in law to certain other law practices as alleged. The evidence showed that DGJ Group Pty Ltd had never carried on practice as solicitors and that the plaintiff was mistaken as to the name by which the solicitors “Deacons Graham & James” could be sued. His Honour found that the plaintiff was mistaken as to the entity which answered the description of “her solicitors” at the relevant time. However, his Honour found that there was no such mistake in respect of the other proposed defendants because the plaintiff did not sue DGJ Group Pty Ltd intending to sue Mr Coombes individually or Gadens Ridgeway. Accordingly leave was given to substitute Deacons Graham & James. His Honour did also grant leave to join Mr Coombes and Gadens Ridgeway as defendants, but only under Rule 9.06 and not under Rule 36.01.
[3][2003] VSC 435.
Mr Elliott submitted that in McDonald v DGJ Group Pty Ltd the plaintiff was able to substitute only one person and not three persons for the one person that was originally named as defendant (that is true but this appears to be a misunderstanding of the bases for the orders made in that case).
Mr Elliott submitted that in the present case it could not be said that it was intended by naming the firm that the individuals themselves were intended to be named. He said that there were four individuals that were sought to be joined and it was not simply a substitution of one party by another party under Rule 36.01(4). Mr Elliott added that there was nothing to stop the joinder of these individuals under another rule, but that might have “different consequences”.
At the outset of his argument, Counsel for the plaintiffs mentioned Order 17 which permitted a proceeding to be commenced by partners in the name of the firm and said that rule applied only where those partners were carrying on business “within Victoria”, so that it was necessary in the case of this partnership to join the individuals comprising the partnership. Mr McLelland submitted that this was not a case where it was sought to add parties as plaintiffs; they were merely seeking to correct the way that those parties were described. He said that the evidence showed that it was always intended to bring the proceeding on behalf of those persons – they were just inappropriately named. The present case was one of a mistake in the “name” of a party as explained in Bridge Shipping.
Mr McLelland referred to Silverstone Holdings Pty Ltd (as trustee for the Devereux Property Trust) v American Home Assurance Co,[4] a decision of the Full Court of the Supreme Court of Western Australia. It may briefly be stated that in that case it was intended to bring a proceeding on behalf of the trustee of a particular trust and a mistake was made as to the identity of the trustee – a substitution of the correct party was permitted.
[4](1997) 18 WAR 516.
Mr McLelland said that in the present case it was not sought to substitute a different plaintiff but simply to correctly describe who was intending to sue by reference to their names.
By way of reply, Mr Elliott submitted that the correct characterisation of the facts in the present case was that there was no mistake, the intention was to sue in the name of the firm and it seemed that the only mistake was, perhaps, that Order 17 could be utilised for that purpose. Because Order 17 could not be utilised, no existing entity had been named as plaintiff.
Reasons
Reliance in this application is placed upon Rule 36.01(4), no doubt because of the retrospective effect of an order correcting a mistake in the name of a party where “another person” is substituted as a party, by virtue of Rule 36.01(5).
It is therefore necessary to determine whether the error constituted by naming a party which was not a legal entity may be construed as “a mistake in the name of a party”. The evidence does not make clear what the intention of Messrs Duncan, Dovico, Mascitelli and Young was at the relevant time. I have no difficulty in inferring that they were desirous of instituting a proceeding in relation to the investment which was the subject of the application for units which is exhibit “JEK-17”. It therefore must have been intended by them (and their legal representatives) that the persons applying for those units were the persons who should join in the proceeding (along with the many other plaintiffs). In my opinion it is irrelevant whether they intended or wished to join in the proceeding under the name “Duncan Dovico Partnership” or under their own names. If they intended to join in the proceeding under the name “Duncan Dovico Partnership” then they only did so in the belief that this was a correct description for legal purposes of the identity of the party to sue. That would have been an error because “Duncan Dovico Partnership” is not a legal entity and is simply a description of the four individuals. On the other hand, if they intended that they should sue in their own names, there was a mistake by the solicitors when they used the description “Duncan Dovico Partnership”.
On either view, in my opinion, there was a mistake in the name of a party (or parties) which should be corrected. By correcting that mistake, I am of the view that the effect is to substitute “another” person or persons as parties, within the meaning of Rule 36.01(4) & (5) – although the “party” previously named was not in fact a person or a legal person. I note that no argument was advanced by the parties in reliance upon Rule 36.01(6); however, the language of Rule 36.01(7) supports the approach here taken in relation to the meaning of the expression “substituting another person as a party”.
In my opinion the above approach is supported by the reasoning in the passage above-quoted from the judgment of McHugh J in Bridge Shipping and is not in any way negated by the reasoning in McDonald v DGJ Group Pty Ltd.
The words descriptive of a non-existent legal entity should be deleted and the parties identified by those descriptive words should be substituted. Accordingly, leave will be granted to amend the writ and the title to the proceeding by deleting as the description of the 77th plaintiff the words “Duncan Dovico Partnership” and substituting as parties “Warren Alexander Duncan, Paul Dovico, Giancarlo Rocco Mascitelli and Patricia Anne Young trading as Duncan Dovico Partnership (a firm)”.
Counsel may wish to make submissions as to costs.
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CERTIFICATE
I certify that this and the 6 preceding pages are a true copy of the reasons for Judgment of Mandie J of the Supreme Court of Victoria delivered on 1 April 2005.
DATED this first day of April 2005.
Aimee Kinda
Associate to Mandie J
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