Zemcevicius v Target Australia Pty Ltd

[2001] QDC 145

DISTRICT COURT OF QUEENSLAND

CITATION:

Zemcevicius v. Target Australia Pty Ltd & Anor [2001] QDC 145

PARTIES:

BENJAMIN ZEMCEVICIUS (Plaintiff)
v.
TARGET AUSTRALIA PTY LTD (First Defendant)
And
THE WIDE BAY INSTITUTE OF TAFE (Second Defendant)

FILE NO/S:

D957 of 2000

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

 10 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2001

JUDGE:

McGill DCJ

ORDER:

Order that “State of Queensland” be substituted as second defendant in place of “The Wide Bay Institute of TAFE”.  Leave to the plaintiff to file an amended claim and statement of claim to give effect to that substitution, and to make other appropriate amendments to the pleadings.  Direct that the amended claim be served on the State of Queensland within 28 days.  No order as to the costs of application

CATCHWORDS:

PRACTICE – Parties to actions – substitution of defendant – defendant sued by business name – whether misnomer – statutory substitution of liability of defendant and proceedings – Uniform Civil Procedure Rules r.69(2)(g)

Heinrich v. Attorney-General [1967] SASR 78 – cited

COUNSEL:

(Application under Chapter 13 Part 6)

SOLICITORS:

Barwicks Lawyers for the plaintiff
Minter Ellison for the first defendant

1. This application arises in a proceeding commenced by a claim filed in this court on 9 March 2000 by which the plaintiff claimed damages for personal injury due to negligence, breach of statutory duty or breach of contract on the part of the first or second defendants. The second defendant was identified as “The Wide Bay Institute of TAFE”. The statement of claim alleges that at the material time the second defendant was an educational establishment pursuant to s.5(1) of the Education (Work Experience) Act 1996 and that at all material times the plaintiff was enrolled in a new work opportunity retail trading project with the second defendant and engaged in work experience, or alternatively industry placement with the first defendant in accordance with that project.  It was alleged that he commenced this on 30 September 1996, and that during this period he was to be paid a training wage through the Vocational, Training and Employment Corporation.  It is further alleged that the plaintiff suffered an injury in the course of that work on or about 10 March 1997. 

1. Section 7 of the Education (Work Experience) Act 1996 permits a work experience arrangement to be made for a student with the approval of the principal of the student’s educational establishment.  A work experience arrangement is an arrangement made between a student’s educational establishment and a work experience provider under which the latter will provide work experience to a student as part of the student’s education: s.4.  An educational establishment included a state college under the Vocational, Educational, Training and Employment Act 1991: s.5(1)(f).

1. The Vocational, Educational, Training and Employment Act 1991 continued in existence a corporation sole, called the “Vocational, Education, Training and Employment Corporation”, but provided that it would under that Act be constituted by the Chief Executive of the department administering the Act rather than by the Minister: s.31.  The Corporation had the power to continue and maintain all state colleges in existence at the commencement of the Act or establish new ones: s.37.  The term “state college” relevantly means any state college or other means of technical and further education: s.4.  These provisions appear to be consistent with the proposition that under that Act the TAFE colleges were conducted by the corporation continued in existence under that Act. 

1. The Vocational, Educational Training and Employment Act 1991 was however repealed by the Training and Employment Act 2000, most of which commenced on 28 September 2000, that is, after the claim was filed.  By s.296 the Vocational, Educational, Training and Employment Corporation established under the repealed Act was dissolved, and by s.297 the liabilities of the Corporation rest in the State.  Section 298 provided relevantly:

“A proceeding … against the Corporation … that has not ended before the commencement of this section may be continued and finished … against the State.”

1. It is, in my opinion, clear that the Corporation under the 1991 Act was the entity in fact sued under the name of the second defendant in the claim. Under r.90 of the Uniform Civil Procedure Rules, a proceeding may be started against a person who carries on business under a name or style other than the person’s own name. The concept of “business” is one which can be quite wide, and in my opinion, in the context of a provision such as r.90 it ought to be given a wide interpretation, so that the action in my opinion was properly constituted against the Corporation under the “business name” by which it conducted the Wide Bay Institute of TAFE. However, if I am wrong about this, it would in my opinion, have been a case of misnomer where, but for the intervention of the legislature last year, the Corporation would have been substituted for the existing name of the second defendant under r.79(2)(a): cf Heinrich v. Attorney-General (1967) SASR 78. The statement of claim clearly identifies the corporation and the person conducting the TAFE college as the intended defendant. However, in view of the provisions of the new Act, the action is now appropriately brought against the State of Queensland.

1. The situation is a little unusual, though in my opinion there is jurisdiction to make the order sought under r.69(2)(g) of the Uniform Civil Procedure Rules, or, if not otherwise, under s.81 of the Supreme Court Act 1991.  If the action was properly constituted as an action against the Corporation prior to the repeal of the 1991 Act, the substitution is clearly appropriate in view of the provisions of the 2000 Act.  If there was a misnomer in the name of the second defendant, those provisions do not apply directly, but it is appropriate and just in the light of those provisions, and the provisions of the rules, for the State of Queensland to be substituted as second defendant. 

1. I should note that although the application was served on the Crown Solicitor, it was not resisted on behalf of the State of Queensland. 

1. In all the circumstances therefore, in my opinion it is appropriate to order that “State of Queensland” be substituted as second defendant in place of “The Wide Bay Institute of TAFE”, and I give leave to the plaintiff to file an amended claim and statement of claim to give effect to that substitution, and to make other appropriate amendments to the pleadings, and direct that the amended claim be served on the State of Queensland within 28 days.  There will be no order as to the costs of the application.