ae Po.Practice and Procedure - application to amend name of second applicant - application brought outside limitation period - scope of power to amend under Federai Court Rules - second applicant incorrectly named in application - whether a mis-description - test to be applied - relevance of respondents' knowledde of mis-description Trade Practices Act 1974 s$.82(2) Federal Court Rules 0.13 r.2, 0.6 r.8 METROPOLITAN OILS (PROPRIETARY) LIMITED and LEADER OILS PIY. LTD. and FORTE LUBRICANTS PTY. LTD. v. CLIVE ROBIN BERINGER and FORTRON INDUSTRIAL LUBRICANTS PTY. LID., FORTRON AUTOMOTIVE TREATMENTS PIY. LTD., FORTRON AUTOMOTIVE WARRANTIES PTY. LTD. No. WA G2 of 1982 TOOHEY J. DARWIN 8 APRIL 1986 Syd Reg IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G2 of 1982 wee BETWEEN: METROPOLITAN OILS (PROPRIETARY) LIMITED First Applicant and LEADER OILS PTY. LTD. Second Applicant and FORTE LUBRICANTS PTY. LTD. Third Applicant and CLIVE ROBIN BERINGER First Respondent and FORTRON INDUSTRIAL LUBRICANTS PTY. LTD., FORTRON AUTOMOTIVE TREATMENTS PTY. LTD., FORTRON AUTOMOTIVE WARRANTIES PTY. LTD. Second Respondents MINUTE OF ORDER ler Seenenaeaaadan tilieendnen dadenmenee | 7 7 oo eT! aoe poe oe er nr eee oe a ee | ee eee ae JUDGE MAKING ORDER: TOOHEY J. DATE OF ORDER: 8 April 1986 WHERE MADE: Darwin as To. we Bd THE COURT ORDERS THAT: l. The name of the second applicant be amended to Leader Oils (W.A.) Pty. Ltd. 2. The applicants pay the respondents' costs of the motion to amend the name of the second applicant and pay any costs thrown away by the respondents by reason of the amendment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Ae tenn = wee ee ee et OTe . . . ee ove a wt omar eee os, wpe re too ey an qe ee ere ~ IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION CORAM: applicant from Leader Ltd. TOOHEY J. 8 April 1986 This is a motion to amend the name of the second No. WA G2 of 1982 BETWEEN: METROPOLITAN OILS (PROPRIETARY) LIMITED First Applicant and LEADER OILS PTY. LTD. Second Applicant and FORTE LUBRICANTS PTY. LID. Third Applicant and CLIVE ROBIN BERINGER First Respondent nN and FORTRON INDUSTRIAL LUBRICANTS PTY. LID. , FORTRON AUTOMOTIVE TREATMENTS PTY. LID. , FORTRON AUTOMOTIVE WARRANTIES PTY. LTD. Second Respondents REASONS FOR JUDGMENT Oils Pty. Ltd. to Leader Oils (W.A.) Pty. Fe tre ee ew ee 1 fe ay Fats a Ps se ne egy Me These proceedings began on17 February 1982 and there has been a history of interlocutory motions. The applicants allege misleading and deceptive conduct on the part of the respondents. Essentially they claim that the respondents have engaged in conduct calculated to mislead and deceive the public into believing that the respondents are affiliated with the applicants and that products marketed by the respondents are products of the applicants. The first applicant is a proprietary company incorporated according to the laws of South Africa and it has its registered office and principal place of business in Johannesburg. The third applicant is a proprietary company incorporated in New South Wales. It carries on business in that State and in Victoria and it is the Australian franchisee of the first applicant in respect of a range of products manufactured and distributed by the first applicant for use in the fortification and improvement of lubricating oils, radio coolants and conditioners, and petroleum - Tw t products. ; ote Paragraph 3 of the statement of claim pleads that the second applicant "is a company duly incorporated according to the laws of Western Australia and having its principal place of business at Suite 224, Piccadilly House, Cnr. Lord & Aberdeen Streets, Perth and is the distributor in Western Australia of the First Applicant's products ...". rocoto wot a » he soca e NT ey) In their original defence to the statement of claim, the respondents did not admit that the second applicant was the distributor in Western Australia of the first applicant's products but otherwise they admitted para.3. In their amended defence filed pursuant to an order of the Court made 6 February 1985, the respondents did not admit that the second applicant was a company duly incorporated according to the laws of Western Australia; they retained their non-admission concerning the second applicant's distributorship. The respondents opposed the applicants' motion and they did so because of what they saw as the implications arising from sub-s.82(2) of the Trade Practices Act 1974. That sub-section permits an action under sub-s.(1) to be commenced "at any time within 3 years after the date on which the cause of action accrued". It seemed to be common ground between counsel for the parties that any action under s.82 now brought against the respondents would be statute barred. Order 13 r.2(1) of the Federal Court Rules empowers the Court, at any stage of any proceeding, to order that any document in the proceeding be amended. Sub-rule (2) provides that all necessary amendments be made "for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings". Sub-rule (3) reads: pe "(3) Where there has been a mistake in the name of a party, sub-rule (1) applies to the person intended to be made a party as if he were a party". Order 6 deals expressly with parties and causes of action. Rule 8 reads: "B. {i) 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 ail matters in dispute in the proceeding 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 proceeding. (ii) A person shall not be added as an applicant without his consent". Counsel for the respondents raised several objections to the granting of the relief sought in the applicants' motion. At the forefront of those objections was a submission that the rule in Weldon v. Neal (1887) 19 9.B.D. 394 was a rule of practice applicable to the Federal Court, hence that the applicants ought not be allowed by a change of name to add a party whose clain, if any, was statute barred. Counsel on both sides referred to a number of authorities, Australian and English. It seems to me important, in this area of debate, to be careful not to beg the very question that has to be decided. The Court should not be prom io mongers tecces = — G mon pete nse in pene a 5. invited to look at the implications of granting or refusing relief and then be asked to reason back to the character of the application that is being made. It is the character of the application that determines its implications. If there has been a mere misnomer or mis-description of an applicant, the rule in Weldon v. Neal has no application in any event. That rule operates only where what is proposed is in truth a change of parties. Having regard to affidavits filed in this matter and to the oral evidence of Glyn Wyndham Evans, a director of Leader Oils (W.A.) Pty. Ltd., the factual situation is clear enough. No company by the name of Leader Oils Pty. Ltd. is or has ever been incorporated in Western Australia. Leader Oils (HAL) Pty. Ltd. was incorporated in this State on 15 July 1981. As from 27 July 1981 the registered office of Leader Oils (W.A.) Pty. Ltd. was Suite 224, Piccadilly Suites, Corner Lord and Aberdeen Streets, Perth. That is the address referred to 1n para.3 of the statement of claim save that Piccadilly Suites is referred to as Piccadilly House. On 5S March 1983, that is after the amended statement of claim was filed, the registered office of the company was changed to Suite 23, Piccadilly Square, Corner Lord and Aberdeen Streets, Perth. Again that is the same address save that the suite number has altered. . Furthermore it is Leader Oils (W.A.) Pty. Ltd. that is the distributor in Western Australia of the first applicant's Meepows were ee ern ee ere Fw my . . tas ' "~. oO products. In an affidavit sworn 24 March 1986 and filed in these proceedings, Mr. Evans deposed that on 9 February 1983, Leader Oils (W.A.) Pty. Ltd. and the third applicant entered into a written distributorship agreement for the first time. The agreement, which is exhibited to Mr. Evans' affidavit, is between Forte Lubricants Pty. Ltd. and "the distributor described in the Schedule of the second part". The distributor described in the schedule is Leader Oils (W.A.)} Pty. Ltd. and that company executed the agreement. Earlier the second applicant had been the West Australian distributor for the third applicant under an oral agreement. Thus there can be no doubt that Leader Oils (W.A.) Pty. Ltd. is the company answering the various descriptions in para.3 of the statement of claim. It is true that in proceedings in the Federal Court in Victoria involving some of the parties to the present litigation, answers to interrogatories sworn by a director of the third applicant referred to the appointment of Leader Oils Pty. Ltd. as exclusive distributor in Western Australia by reason of an appointment dated 9 February 1983. This, I think, was an error and perhaps not a surprising one, given that Leader Oils Pty. Ltd. was incorporated in Victoria and is a distributor of the first applicant's products in that State. Weldon v. Neal concerned amendments toa statement of claim setting up additional causes of action which, at the time of the amendment, were barred by the Statute of Limitations, though an anes cres ro we a mm er ween coe rr a a Cr de not barred at the date of the writ. The Court of Appeal affirmed the decision of the divisional court striking out the amendments on the ground that they took from the defendant a defence under the Statute of Limitations otherwise available to him. Although Weldon v. Neal was concerned with pleadings, the principle underlying the decision has been held to apply as well to the addition of parties to proceedings. See for instance Mabro v. Eagle Star and British Dominions Insurance Co. Ltd. £19321 1 K.B. 485; Archie v. Archie [£1980] 0d. R. 546; Stout v. R.A. Wenham Builders Pty. Ltd. (19803 1 N.S.W.L.R. 426. Discussing 0.13 of the Federal Court Rules, Camilleri: Practice and Procedure of the High Court and Federal Court of Australia vol.2 p.1203 comments: "The liberal use of the liberty to amend pleadings is one of the hallmarks of the modern judiciai systen. Generally speaking, amendments will almost always be allowed even if a statute barred cause of action is being introduced into the proceedings and especially if the only real prejudice suffered by the respondent can be compensated in costs. It has been held that this order constitutes a code on the law as to amendments and previous practice has been superseded. McGee v. Yeomans £19771 1 N.S.W.L.R 273". While endorsing the spirit of these comments, I do not think that McGee v. Yeomans is authority for the proposition for which it is cited. The case concerned an appeal by a plaintiff in an action for damages for negligence from a decision of a judge refusing leave to amend the statement of claim, on the ground that ape serge ees ona come ae tc emer the amendment, if allowed, would introduce a new cause of action ar a new party to the proceedings at a time when new proceedings based on that cause of action, or against that party, would be statute barred. It is true that in the course of his reasons for judgment, Glass J. said at p.280: "T am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v. Neal and all the fine spun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice." But the rules with which the Court of Appeal was concerned were contained in Part XX of rules made under the Supreme Court Act 1970. Those rules contained provisions similar to 0.13 r.2(1) and (2) of the Federal Court Rules but they went on to make specific provision for the situation in which a relevant period of limitation has expired and leave is then sought to amend the statement of claim. If there is a code, it is a code of which the specific provision forms part. Cf. Stone James v. Pioneer Concrete (W.A.) Pty. Ltd. (unreported decision of Full Court of Supreme Court of Western Australia delivered 11 December 1984). It may be that, even in the absence of rules dealing expressly with the question of limitations, the rule in Weldon v. Neal has been displaced by the broad language of 0.13; but that is a matter a ee cad ze? r ~ Ame ee ee DT nye se er mate eps vent 9. I need not determine in disposing of this motion. I am satisfied that what has occurred is truly a misnomer or mis-description and that the entity at all times intended to be the second applicant and the only entity to which para.3 of the statement of claim can properly refer is Leader Oils (W.A.) Pty. Ltd. Some reference must be made to Her Majesty's Attorney-General for England v. Sorati (£19691 V.R. 88. The plaintiffs, being Her Majesty's Attorney-General for England and eight other persons, who sued as the "Registered Trustees of the Trust Deed dated 29 July 1957 constituting the Anglo-Egyptian Resettiement Board" issued a writ against the defendant. Later the plaintiffs sought leave to add or substitute a plaintiff viz. an incorporated body "the Anglo-Egyptian Resettlement Board (Registered Trustees)". Menhennitt J. made an order that the Anglo-Egyptian Resettlement Board (Registered Trustees) be added as a plaintiff or alternatively be substituted as the secondnamed plaintiff in place of the second to ninthnamed plaintiffs. In the course of his judgment, Menhennitt J. said at pp.94-95; "Accordingly, for the plaintiff to justify the substitution he must establish, it appears to me, two things, first, that the name of the actual plaintiff was a misnomer or mis-description of the plaintiff proposed to be substituted and, secondly, that from the time of the service of the proceedings the defendant knew or ought reasonably to have known that this was so." fa Pre een poem Gr mma ey ni a me 10. Although his Honour used the expression "misnomer or mis-description", he was speaking of a situation in which a plaintiff was to be added or substituted. He was not dealing with the situation in which a party sought to do no more than be described by its correct name. In that situation, I am not persuaded that it is essential that the respondents knew or ought to have known what the true situation was. If knowledge, actual or constructive, be an ingredient, there is evidence that the respondents were aware of the mis-description. In an affidavit sworn 23 July 1982 in support of an application by the respondents for security for costs, Jacqueline Michelle Baldwin deposed to having made searches at the Office of Corporate Affairs and having learned that Leader Oils (W.A.) Pty. Ltd. was registered as a company incorporated in Western Australia but that Leader Oils Pty. Ltd. was not registered. In this regard counsel for the respondents drew attention to the fact that in the present proceedings an order for security for costs was made, by consent, against all applicants, a rather curious result if one of the applicants was in fact incorporated in Western Australia. I agree that the giving of consent, at least so far as the second applicant was concerned, was curious. But it probably has no more significance than that an order for security for costs was likely against the first and third applicants and no sufficient distinction was drawn between them and the second applicant. Certainly no estoppel can arise from the giving of consent. ll. Menhennitt J. referred to Davies v. Elsby Bros. Ltd. C1960] 3 All E.R. 672 which was an application made after the relevant limitation period had expired to change the name of the defendants from "Elsby Bros. (a firm)" to "Elsby Bros., Ltd.". The Court of Appeal held that the amendment involved the addition of a new defendant, the limited company, and was not merely the correction of a misnomer. There had been two different entities, the firm and the company; the writ correctly described the firm and, the date of accident not being given, did not show that the company must have been intended. At p.676 Devlin L.J. said: "The test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself 'of course it must mean me, but they have got my name wrong', then there is a case of mere misnomer. If, on the other hand, he would say: 'I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries', then it seems to me that one is getting beyond the reaim of misnomer". The test is a useful one when the issue is whether there has been a mis-description or misnomer and that, I think, is how it was viewed by Devlin J. See J. Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. (1970) 44 A.L.J.R. 441 per Walsh J. at p.443. But I do not think it is determinative of the outcome, particularly where the application to amend is by an applicant. The question "Am I being sued by the right person?" may simply not have arisen in the mind of the respondent. Davies hn ee pom ey cae ere op oe ee oe 12. v. Elsby Bros. Ltd. was not a case of misnomer or mis-description. The plaintiff had in fact been employed by a firm called Elsby Bros. and the business of that firm was taken over by Elsby Bros. Ltd. There may have been a genuine issue as to the true identity of the plaintiff's employer at the time of his accident. In the present case there is an entity called Leader Oils Pty. Ltd. but it has no existence in Western Australia and is clearly not the entity to which para.3 of the statement of claim refers. In my view there was in the present case a misnomer or mis-description, certainly no less so than in Rainbow Spray Irrigation Pty. Ltd. v. Hoette €1963] N.8.W.R. 1440 where Walsh J. permitted an amendment of the name of the plaintiff from Rainbow Spray Irrigation Pty. Ltd. to Rainbow Spray Sales Pty. Ltd. as being not a case of substitution but the correction of an error. In the light of these reasons I am satisfied that there should be an order amending the name of the second applicant from Leader Oils Pty. Ltd. to Leader Oils (W.A.) Pty. Ltd. Counsel for the respondents submitted that the motion to amend the name of the second applicant should have been made by Leader Oils (W.A.) Pty. Ltd. But in my view it is appropriate that it be made by all applicants. I do not regard 0.13 r.2(3) as demanding the course suggested by counsel. erers tue 4 . alae ete ce Myr ee 13. Counsel for the applicants conceded that, if such an order were made, the applicants should bear the costs of the motion and any costs thrown away by the respondents by reason the amendment. There will be orders accordingly. I certify that this and the preceding twelve pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Toohey Associate Dated: s Fark ; (756, of Av gee yt ¢fy i* i r ' a