NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WALKOFF [1997] NSWCA 221

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WALKOFF

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and STEIN JJA 7 August 1997, 7 August 1997

[1997] NSWCA 221

Practice and Procedure — Process — Parties — Misdescription — Power to correct mistake in name of party — Statement of Claim joining insurer not owner/driver as party-defendant — Believed necessary as result of amendment to relevant legislation — Belief erroneous — Limitation period expires — Later application for leave to amend Statement of Claim by substituting owner/driver for insurer — Whether "mistake in name of party" — Whether leave might properly be granted — SCR (1970) Pt20 r4(3)

Powell JA This is an appeal from a Judgment delivered, and Orders made, by Sully J on 4 July 1996, on which day his Honour upheld an appeal from a Judgment, and Orders, made by Greenwood M on 24 April 1996, and, in lieu thereof, ordered that the Respondent have leave to amend the proceedings by substituting one Colin Masson ("Mr Masson") as the party-Defendant in lieu of the original party-Defendant, the Government Insurance Office of New South Wales, as the Appellant was known at the time of the commencement of the proceedings.

The factual background out of which the application to Greenwood M, and the later appeal to Sully J, arose is fairly simple, although, I regret to say that the relevant facts cast a less than favourable light upon the competence, or conduct, of the members of the legal profession who have acted for the present Respondent over a period of many years.

The Respondent was, in January 1983, a passenger in a motor vehicle which was owned, and driven, by Mr Masson at a time when, as a result of what is alleged to have been the negligence of Mr Masson, that motor vehicle came into collision with another motor vehicle, so causing the Respondent injury - the extent of the injury is not something which need be a matter of any comment in this Judgment.