Sullivan v Van der Broek

[1999] NSWSC 1177

CITATION:	Sullivan v Van der Broek [1999] NSWSC 1177
CURRENT JURISDICTION:	Common Law Division Professional Negligence List
FILE NUMBER(S):	20402 of 1997
HEARING DATE(S):	22 November 1999
JUDGMENT DATE:	3 December 1999
PARTIES :	Peter Hunt (First Appellant) Simon Alderson-Hicks (Second Appellant) Harley Fraser (Third Appellant) Douglas Alan Perry (Fourth Appellant) William John Sullivan (Respondent)
JUDGMENT OF:	Windeyer J at 1

LOWER COURT JURISDICTION:	Supreme Court (Master)
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Master Harrison

COUNSEL :	N. Cotman SC (First, Second and Third Appellants) A. Colefax (Fourth Appellant) B. Walker SC with him C Loveday (Respondent)
SOLICITORS:	Kelvin D. Currie (First, Second and Third Appellants) Mallesons Stephen Jaques (Fourth Appellant) Clayton Utz (Respondent)
CATCHWORDS:	PRACTICE AND PROCEDURE - Supreme Court procedure - amendment - amendment to names of parties - substitution of 9 defendants (including original 5 defendants) for original 5 defendants - whether within Pt20 r4(3) - appeal from Master's order allowing amendment - appeal allowed
CASES CITED:	Bridge Shipping Pty Ltd v Grand Shipping South Australia (1991) 173 CLR at 231 Evans Constructions Co Limited v Charrington & Co Limited [1983] QB 810 Fernance v The Nominal Defendant (1989) 17 NSWLR 710 Greentree v G.D. Searle & Company (unreported 31 July 1992) Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 QdR 153 Mitchell v Harris Engineering Company Limited [1967] 2 QB 703
DECISION:	Appeal allowed

8

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

WINDEYER J

FRIDAY 3 DECEMBER 1999

20402/97 WILLIAM JOHN SULLIVAN v WILFRIED PETER VAN DEN BROEK & 4 ORS

JUDGMENT

1    This is an appeal from a decision of Master Harrison of 14 September 1998 under which, pursuant to SCR Pt20 r4(3), she gave leave to the plaintiff to amend the statement of claim by substituting for the five defendants originally named, new defendants including the original five and four more. It is unfortunate that an appeal on a procedural question, which was estimated, correctly, to have a hearing time of two to three hours, should have had to wait fourteen months before determination with the result that the action could make no progress during that time as the parties to it were not finally ascertained.

2    The relevant facts are set out in the Master's judgment. I do not intend to repeat them because there is no contention about them and they can be read in pages 1 to 6 of her judgment. In summary, as she explained, the plaintiff was injured on 23 November 1991, when taking part in the mud jump at a Galah Day organised by the Nambucca Valley Galah Day Association, at a property known as "Willow Bend" owned by Mr and Mrs Van Der Broek, the first and second defendants. After making various inquiries and seeking information as to the members of the committee, the plaintiff by statement of claim filed on 16 December 1992: in paragraph 1, sued the first, second, third, fourth and fifth defendants as members of the Nambucca Valley Galah Day Committee having the care, control and management of the Tenth Anniversary Galah Day activities and as such joint occupiers of the property; and in paragraph 2, sued the first and second defendants as owners of "Willow Bend" and occupiers of the property and the persons having the care, control and management of the activities. In the defence filed on 16 March 1993, paragraphs 1 and 2 of the statement of claim were admitted by all defendants, and the plaintiffs naturally then felt secure as to their having sued the right people. Problems arose as a result of inquiries made by the insurer and the insurer’s subsequent decision to deny liability to indemnify the defendants, which caused the defendants to take a closer interest in the action. The first, second, fourth and fifth defendants sought leave to amend the defence to deny membership of the committee and the first and second defendants additionally sought leave to amend to deny occupation of the subject property, while they admitted they were registered as proprietors. Leave to amend was granted by Acting Prothonotary Irwin on 20 May 1998. The granting of such leave of course amounted to granting leave to withdraw an admission. Amended defences have now been filed. In their amended defence, the first, second, fourth and fifth defendants deny paragraph 1 of the statement of claim and the first and second defendants, so far as paragraph 2 is concerned, admit that they are the registered proprietors, but otherwise deny occupation. In a separate defence the third defendant denies paragraph 1. Paragraph 2 is not pleaded against him in any event. There are consequential amendments to the cross-claim which are in line with the amendments to the defence, the original cross-claim having alleged committee membership of the defendants/cross-claimants. I should add that the application to amend the defence was made by motion filed on 12 September 1997. The judgment of the Acting Prothonotary refers to it as being of the first, second, third and fifth defendants but that is not correct. Third was a mistake for fourth. The file does not disclose any application by the third defendant. Thus it is not clear on what basis a document called "Defence of the Third Defendant" which denies paragraph 1 of the statement of claim was filed on 6 September 1999.

3    It seems as a result of these amendments, the plaintiff applied by motion filed on 20 July 1998 for leave to amend the statement of claim pursuant to Pt 20 r4(3) and leave was given by the Master as I have stated. An alternative claim to join additional defendants under Pt 8 r8(1) was not pursued. The additional defendants now appeal from that decision of the Master. It is not suggested, that if there were power to grant the amendment pursuant to the relevant rule, there was any fault in the exercise of the discretion to grant leave. Clearly, if there were a discretion it was properly exercised. The question therefore is whether the amendment made pursuant to the order was an amendment allowed by the relevant rule.

4    The relevant rules are as follows:

PART 20 - Amendment
4. Statutes of limitation

(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.

(2) (Repealed)

(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

PART 8 - Causes of Action and Parties
8. Addition of parties

(1) Where a person who is not a party:

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings.

5    It is perfectly clear that the intention of the plaintiff was to sue the members of the committee. If it is relevant, the constitution of the Nambucca Valley Galah Day Association provides that the office bearers of the Association are to be a president, a treasurer, a secretary and five committee members, elected at an annual general meeting to be held each year between 1 July and 31 October. The public liability policy named as the insured "The Nambucca Valley Galah Day Committee". The appellants who are the four new persons named as defendants did not lead any evidence to contradict the anticipated claim, to be made by amendment, that they were members of the relevant committee and thus to show the amendment would be futile. I should add that the amendment made pursuant to the leave granted by Master Harrison and incorporated in the amended statement of claim filed on 24 September 1998, makes a change to paragraph 1 of the statement of claim which was not authorised by the orders made by the Master. Paragraph 1 of the original statement of claim alleged that the defendants were "members of the Nambucca Valley Galah Day Committee" and paragraph 1 of the amended statement of claim alleges that the defendants were members of "an organising committee for the Nambucca Valley Tenth Anniversary Galah Day", which is not necessarily the same. Whether anything would turn on this is not a matter with which I am dealing, nor is the other amendment to paragraph 1 which is no doubt consequential but was not sought. The question to be addressed is whether the amendment allowed is an amendment to correct a mistake in the name of a party, rather than an amendment adding as parties, persons who ought to have been joined.

6    It is not at all clear from the evidence before the Master and thus before me who were the committee members on the date in question. Nevertheless, there was evidence which might go to establish that the additional named defendants were members of that committee. As the Master realised the question really was whether the plaintiff had established facts which brought the application within the principles enunciated in Bridge Shipping Pty Ltd v Grand Shipping South Australia (1991) 173 CLR 231. In that case an application for amendment failed because the defendant had intended to cross-claim against the owner of a ship, whereas later it was discovered that the ship had been chartered to another party who would have been the appropriate cross-defendant. The intention had been to sue the owner and therefore it was held there was no mistake in the name of a party, but rather a mistake in the party sued. The learned Master in her judgment considered the relevant passages in Bridge Shipping and in particular she referred to the judgment of McHugh J and his apparent acceptance of the following passage in the judgment of Donaldson LJ in Evans Constructions Co Limited v Charrington & Co Limited [1983] QB 810 at page 821, dealing with a similar English rule:

In applying Ord. 20, r. 5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances.

7    Bridge was dealing with Order 36 of the Victorian Supreme Court Rules, the relevant rules, namely 36.01(4)(5) and (6), being similar to the New South Wales Pt20 r4(3), the English Order 20 r5(3) and the Queensland Order 32 r(1)(2) and (3). The wording in each set of rules is different and needs to be considered together with any rules as to addition of parties, but the principles set out in Bridge are clearly applicable to the New South Wales rules and it was not argued otherwise. All parties on the appeal and before the Master relied upon the following paragraph from the judgment of McHugh J at p259:

The concluding words of sub-r. (4) "whether or not the effect is to substitute another person as a party" enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, 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.

8    In her judgment the learned Master made mention of Fernance v The Nominal Defendant (1989) 17 NSWLR 710, which was apparently relied upon by the present appellants before her. She held, correctly in my view, that Bridge governed the application and Fernance was directed towards a different question. Nevertheless it is important to bear in mind the provisions of Pt 8 r8 when considering the framework in which Pt 20 r4 operates. An explanation, so far as the English rule is concerned, is found in Mitchell v Harris Engineering Company Limited [1967] 2 QB 703. The reasoning of the Master for her decision is found in the following passage commencing on page 12 of her judgment:

The issue for determination before me is to characterise the mistake which the plaintiff claims to have made and ascertain whether it meets the requirements of Pt20 r4(3). The plaintiff concedes that the defendants' statements and affidavits contain inconsistent information and are voluminous. The plaintiff submitted that they refer to the identities of persons who make up a core group of people who were the organisers and had the care, management, control of the Galah Day. It was this group of people that the plaintiff has always intended to name as defendants. The newly named defendants submitted that the plaintiff did not make a mistake but gave the wrong appellation. They made a mistake by not including all the defendants they should have and now seek to add defendants so cannot rely on Pt20 r4(3). They can only make application under Pt8 r8.

From the plaintiff's solicitor's letter of 19 November 1992 addressed to Mr and Mrs Van Den Broek and Curwood and Partners letter to the plaintiff's solicitors dated 16 December 1992 it is my view that the plaintiff did intend to name the individuals who answered a particular description. That particular description can be defined as the members of the Tenth Anniversary Nambucca Valley Galah Day Committee who had the care, control and management of activities. The plaintiff made enquiries as to whether he had correctly identified the members of the Committee. Even though the plaintiff commenced paragraph 1 of the statement of claim naming individuals as the first, second, third, fourth and fifth defendants it then refers to them as being members of the Nambucca Valley Galah Day Committee who had the care, control and management of the Tenth Annual Galah Day. The plaintiff had (on the advice of the defendant) concluded that he had named all the members of the Nambucca Valley Galah Day Committee. This turned out to be a mistake.

Pt20 r4(3) should be interpreted beneficially. The mistake that was made was that all individual members who met that description were not included as defendants in these proceedings. By substituting the individuals who meet the description of members of the Nambucca Valley Galah Day Committee who had care, control and management of the Tenth Anniversary Galah Day activities, the plaintiff does not intend to sue a different organisation. Reference in paragraph 1 of the statement of claim to the first, second, third, fourth and fifth defendants as being members of the Committee who had the care, control and management of the Tenth Anniversary Galah Day was not misleading nor did it cause reasonable doubt as to the identity of the persons intended to be made a party. I respectfully adopt McInerney J's interpretation of Pt20 r4(3). The role of construction is that the singular includes the plural (see s8(b) of the Interpretation Act 1986). The rule contemplates the substitution of more than one party if they answer a particular description.

9    There is no doubt that the plaintiff intended to sue persons who were members of the Nambucca Valley Galah Day Committee, namely persons who fell within that particular description. On the other hand, the action would not fail if all persons who were members of the committee were not joined as defendants. An organisation is not the defendant. It is easy enough to make a mistake in the name of an employer or a landlord but it is difficult to see how a mistake in number can amount to a mistake in name. 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. McInerney J pointed out in Greentree v G.D. Searle & Company (unreported 31 July 1992) that there is no reason why more than one party cannot be substituted for the one party originally named. He went on to say, however, when dealing with the question of substitution of parties, rather than adding parties:-

adding of parties normally includes the leaving of the original party in the action. In this case this is clearly a substitution of three parties for one party.

10    In Greentree the original defendant did not remain a party but three new defendants were named in substitution for the original defendant. The words quoted in the preceding paragraph accord with the decision of the Queensland Court of Appeal in Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 QdR 153, which held that the equivalent Queensland rule did not authorise addition of parties rather than substitution. A passage from the judgment of Toohey J in Bridge at page 250 might give the impression that in Evans Constructions an order was made adding an additional defendant under the equivalent English rule. That did not happen. Such an order was made by the County Court Judge but this was corrected on appeal. 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”. The defendants were separately named and separately numbered. I do not understand that a defendant A can be substituted for the same person A. In fact leaving the original defendants in makes it impossible to say there has been a mistake in name. The amendment does not fall within the categories of mistake to which McHugh J held the rule extended.

11    This seems a hard case but limitation cases often are and Limitation Acts have a proper purpose. I have come to the conclusion that what was sought by the amendment was the addition of parties not the substitution of parties. In those circumstances I have concluded that the Master's decision was in error and the appeals should be allowed.

Orders

1. Appeals allowed.

2. Set aside orders of Master Harrison of 14 September 1998.

3. In lieu thereof order the notice of motion filed 20 July 1998 be dismissed with costs.

4. Respondents to pay appellants costs of the appeal.

5. Respondents to have Certificate under Suitors Fund Act if qualified.

Last Modified: 12/03/1999