SMITH v THE NOMINAL DEFENDANT and ANOR [1994] NSWCA 287

SMITH v THE NOMINAL DEFENDANT and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and POWELL JJA 31 January 1994; 2 February 1994, 17 February 1994

[1994] NSWCA 287

PRACTICE and PROCEDURE — amendment — statement of claim — alleged misnomer of party — plaintiff within time sues Nominal Defendant as "insurer" of deceased rider of motor cycle alleged to be tortfeasor — solicitors discover out of time that correct insurer was NRMA Insurance Ltd — application out of time to amend statement of claim to substitute named insurer for Nominal Defendant — application rejected by Badgery-Parker J — on appeal (by leave)

Held: (Handley JA and Powell JA; Kirby P dissenting) (1) There was no mistake as to the name of the defendant and the plaintiff at all times intended to sue the Nominal Defendant upon the basis of a mistake of law on the part of his advisers that the Nominal Defendant was the correct party;

(2) Accordingly, (dismissing the appeal) the application to amend the statement of claim to substitute the named insurer for the Nominal Defendant was properly rejected. Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 (SC) and The "Al Tawwab" [1991] 1 Ll LR 201 (CA) applied;

(3) There was no other basis upon which the discretion to amend could properly be exercised. McGee v Yeomans [1977] 1 NSWLR 273 (CA); McInnes v Wingecarribee Shire Council, unreported, CA (NSW) 14 October 1987; [1987] NSWJB 186 and Fernance v Nominal Defendant (1989) 17 NSWLR 710 (CA) referred to.

Motor Vehicles (Third Party Insurance) Act 1942; s15. Supreme Court Act 1970, s81(1). Supreme Court Rules Pt8, Pt20 R1, and R4.

Kirby P This appeal concerns the power of a Judge of the Supreme Court to order an amendment of a statement of claim where it is asserted that there has been a mistake in the naming of a party. It also concerns the exercise of that power.