TORONTO Pty Ltd and NORTHERN TERRITORY OF AUSTRALIA

[2000] NTSC 101

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PARTIES	TORONTO Pry LTD and NORTHERN
TERRITORY OFAUSTRALIA
TITLE OF COURT	SUPREME COURTOFTHE NORTHERN TERRITORYOFAUSTRALIA
JURISDICTION	Interlocutory Application
FILE NUMBER	70/99(991,450)
DELIVERED	20 April 2000
HEARING DATES	2, 9 and 30 March; 4 and 5 April 2000
REASONS OF	The Master
CATCHWORDS

PRACTICE - Northern Territory - amendment - 0.36 Supreme

Court Rules - Writ amended withoutleave - whether valid

PRACTICE - Northern Territory - amendment - 0.36.01(4)

Supreme Court Rules - mistake in name of party

PRACTICE - Northern Territory - amendment - 0.36.01(5)

Supreme Court Rules - time when amendment takes effect - relief from time limitation

CASES FOLLOWED

Bridge Shipping PIL V Grand Shipping S. At 73 CLR 231
Dee Jay Engineering PIL V Moline Management PIL

133 FLR 347

Mannin PIL V Metal Roofing and Cladding PIL

(1977) SCNT 1564

Smart v Stuart 83 NTR I ,

CASE DISTINGUISHED

Number of pages 5

The Proprietors of Units Plan 95/38 v Jiniess PIL & Anor - unreported decision of Riley J dated I July 1999

REPRESENTATION

Counsel.

Plaintiff	Mr Francis
Defendant	Ms Wilson

Solicitors

Plaintiff	David Francis & Associates
Defendant	Clayton Utz

Judgment category classification

Judgment ID number mas006

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D. ITllE SUFRElvlECOURT

OFT}-IENORTi^RNTER^ToRY

OFAUSTRALIA

ATDARWn. I

70199(9911450)	Between:
TORONTOPTYLTD

Plaintiff

and

NORI^11BRNTERRITORYOFAUSTRALIA

Defendant

MASTERCOULEllAT. I:REASONS FORDECISION

roelivered 20 April2000. )

I I l The plaintiff connnenced this proceeding on 21 May 1999 against the Northern Territory of Australia. The endorsement on the writreads, in part, as follows:

"The Plaintiffclaims damages againstthe Defendant for breach of contract No. FD0622/95 between the Plaintiffas contractor and Power and Water Authority

as principal whereby Power and Water Authority to perfomi (siC) several

works associated with electrical cable installation and repairs punsuantto suchcontract and any extensions thereofbetween the period 24 November 1995 and	18 December 1997. "
[ 2 ] There appears to be a contradiction in naming the Northern Territory as defendant and alleging that the Power and Water Authority OAWA) was the principal under the contract, butthis was not mentioned in argonient.

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t 3 I On 16 December 1999, the plaintiff filed a document entitled "Amended Writ" which ontits the Northern Territory and names PAWA as the defendant

and bears an endorsement which reads, in part, as follows:

"The Plaintiffclaims damages againstthe Defendant for breach of Contract No. FD0622/95 between the Plaintiff as contractor and the Defendant as rinci al whereby the Plaintiffwas appointed as the contractor forthe Northern Re ion adjiiiritstered by the Defendant forthe purpose of perfonrinig civilworks in the said region associated with electrical cable installation and re airs dorm the period 24 November 1995 and 18 December 1997 and any extrensionthereof"

[ 4 ] This anlended writ also bears an endorsement PUTSuantto section 44 of the

Limitation Act, whichwas not endorsed on the writisued on 21 Ma 1999.

[ 5 ] It appears from the evidence that tills amended writ was filed following correspondence between the solicitors for the parties, in the course of which it was asserted by the solicitors for PAWA that the proper defendant was PAWA, an independent statutory authority capable of being sued inits own name. The plaintiffappears to have accepted that PAWA should have been named as the

defendant, at least for the purpose of this application.

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t 6 I On 28 February 2000, the defendantfiled a cdnditional appearance and an

the bearing of this application, the plaintiff applied to amend the writ, and	application seeking, inter alla, an order that the amended writ be set aside. On
subsequently a summons was filed seeking orders for the addition or
substitution of PAWA.
[ 7 ] in support of the procedure adopted in relation to the amended writ, the plaintiffrelied on a statement in Civil Procedure - Victoria by N. J. Williams at page 4135, to the effectthat a writ may be amended priorto service. This

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refers to the Armual Practice 1959 at page 622, butthis appears to relate to the
practice adopted in the United Kingdom. 0.9.06, which provides for the

addition, removal or substitution of parties requires the leave of the Court, as does 0.36, with the exception of the amendment of pleadings prior to the close of pleadings. The purported amenchient of the writ was nugatory, and the

amended writshould be set aside.

t 8 I The plaintiff relied on 0.36.01(4) as the basis for its application for the

substitution of PAWA as defendant.

I 9 l There are anuniber of documentsthat are relevantto the contract between the parties including a specification document that contains, inter ana, a notice to tenderers, conditions of quotation and conditions of contract. The notice to tenderers refers to the Northern Territory Government's policies in relation to

contracts.The conditions of contract define "the Contract" to mean the

agreement between "the Principal" and "the Contractor" concerning the

execution of"the Works", and "the Principal" means "the Northern Territory of Australia". However, the offer to execute the Works is directed to the Chief Executive Officer of PAWA, and the tender was accepted by PAWA. A letter from the plaintiff to PAWA dated 16 December 1997 contains the statement that "On legal advice, we believe we still havt^ a contract with the Power and

that as the contract named the Northern Territory as principal, he assumed that	Water Authority for as long as we continue to receive and undertake work. "I 10 l The evidence of the plaintiff's managing director, ^!fr. . 0'Connell, was
the contract was with the Northern Territory, althoug}lit was for the
perfonnance of works administered by PAWA, and Ile instructed his solicitor to that effect. He was cross-examined on his affidavit, during the course of which he conceded that he had a contract with PAWA. There appeared to be
some confusion in his mind as to the roles of PAWA and the Northern
Territory andhe seemed to regard them as the same entity.

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t 111 The plaintiffs solicitor deposes that he was instructed b lv^It. . 0'C 11

that the contract named the Northern Territory as the rinc' I, d lit

confinned by a perusal of the tender documents. He therefore considered it

appropriate to name the Northern Territory as defendant in the 't.

t 12 I It was argued on the basis of this evidence, that the plaintiffhad in d

nitstake tilthename of the party sued, the intention being to suethe I,

and the mistake being asto the name of the pmci al.

t 13 I "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

languagewillperriiit. Itshouldbeiriterpretedtocovernotonl f

nitsnomer, clerical error and misdescription but also cases where th I ' t'ff,
intending to sue a person he or she identifies by a particular descr' t' ,

nitstaken asto the name of the person who answers that descrit' 00 B ^

Slit In P Ltd. v Grand Shi Jin S. /I. . 173 CLR 231, 260 261 per

MeHz, gh land see also SingrtvSt"@rt83 NTR I M""	Ltd. v Met"!
Room @,, dCl@ddt" P	Ltd. (1997) SCNTZ564 andDeeJ" E, , mearm

P Ltd. vMoli"eM", a" eme"tP Ltd. 133 FLR 34711.

[ 14 ] The difficulty lies in categorising the mistt^ke. Toohey I. in Brid e

:^^.^!!!!!2g at page 249 suggested that the question as to whether there h b

nitstake in the name of a party "...... must be answered by reference to anthe

circumstances including the state of knowledge and belief of the laintiff and

the plaintiffs intentions, judged by reference to the circumstances "

t 15 I filthe circumstances of this case, I am satisfied that the plaintiffiritended

to sue the person defined and identified as the principalb the conditi f

contract. It appears to be cornnion gi. oarid, or at least it has not been ar ed to the contrary, that the name of the principal was, in fact, PAWA. The Ia' t'ff

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was therefore Thistaken asto the name of the	principal, that is, as to the name of
a party.

[ 16 ] No prejudice arising out of the substitution of PAWA has been alle ed, and no such prejudice is apparent (see 0.36.01(6) ). The plaintiff should be given leave to amend the writ by substituting the Power and Water Authority forthe Northern Territory of Australia.

t 17 I 0.36.01(5) provides that where an order of this nature is made, it takes effect from the day the proceeding commenced. It was submitted on behalfof

PAWA that a direction should be made that the amendment nottak If t

from the date of the writ, presumably to preserve any rights PAWA may have under the Limitation Act. This subnitssion relied on a direction made by Riley

I. in rite Pro netors o U"its Pm" 9588 IP Jiniess P . Ltd, cmd/,."or, an

tuneported decision dated I July 1999. Neither this proceedin , nor the cases referred to appear to dealwittithe effects of 0.36.01(5) and the direction made

by Riley J appears to have been made without resistance. I am not persuaded

that I have the power to make the direction souglit, and in the eventthat I did havethe power, no reasons have been advanced as to why Ishould do so. The rule, msofar as it relates to the correction of a mistake in the name of a art b

the substitution of another person as a party, appears to intend that there be
relieffr. om the strict application of time Innitations.

[ 18 ] Orders

I. The amended writfiled on 16 December 1999 is set aside.

2. Leave is granted to the plaintiffto amend the writ by substituting the Power

and Water Authority as defendant in place of the Northern Territory of

Australia.