Rostron v Harbour View Constructions [2002] NSWCC 44

Reported Decision : (2002) 24 NSWCCR 80

Compensation Court of New South Wales

CITATION : Rostron v Harbour View Constructions [2002] NSWCC 44 PARTIES : Peter Rostron Harbour View Constructions MATTER NUMBER(S) : 59221 of 2000 JUDGMENT OF: Truss J at 1 CATCHWORDS: Proceedings to Obtain Compensation :- Amendment LEGISLATION CITED: Compensation Court Rules 1990 CASES CITED: DATES OF HEARING: 17/04/02, 05/08/02 DATE OF JUDGMENT: 08/07/2002

FOR APPLICANT: Mr R Hanlon instucted by Brydens Law Office LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr A Parker instructed by Dexter Healey with leave for Allianz Australia Worker Compensation (NSW) Limited

JUDGMENT: 1. In the application for determination the applicant claims weekly payments from 1 June 1999 together with lump sum compensation under s 66 and 67 for permanent impairment of the back and neck and loss of the efficient use of his right arm and right leg as a consequence of four frank incidents and the nature and conditions of his employment as a bricklayer between 10 May 1996 and October 1999. The application as presently filed nominates Harbour View Constructions as respondent and Allianz Australia Workers Compensation (NSW) Ltd (Allianz) as the insurer. 2. On 11 July 2001 Messrs Dexter Healey & Co solicitors for Allianz, filed an answer which describes the respondent as P Rostron t/as Harbour View Constructions. Para 1(a) of the answer disputes that the respondent is liable to pay compensation to the applicant on the grounds that the applicant cannot recover compensation on the basis that the applicant (which I assume should read respondent) is not a legal identity and cannot recover compensation from himself. Despite what was raised in the answer, the applicant's solicitors subsequently filed three further amended applications all of which continued to nominate Harbour View Constructions as respondent. 3. The applicant now seeks the leave of the court to amend the application to nominate HVC Pty Limited as the respondent. At all relevant times Allianz was the insurer of this company. 4. There is no issue about the following matters which emerge from the applicant's affidavit sworn 31 July 2002:- (a) On 23 July 1995 he registered the business name Harbour View Constructions and the Business Names extract indicates that he was nominated as the person carrying on the business. (b) On 10 May 1996 he registered HVC Pty Limited of which he is the director, secretary and shareholder. (c) HVC Pty Limited thereafter used the business name Harbour View Constructions, probably in breach of the Business Names Act. 5. The applicant's application is made pursuant to Part 15(Amendment) of the Compensation Court Rules which provide:- General (1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document in the proceedings be amended, or that any party have leave to amend any document filed by him in the proceedings, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (3) Where there has been a mistake in the name of the party, subrule (1) applies to the person intended to be made a party as if he were a party. 6. It was submitted on behalf of the applicant that there was a mistake in the name of a party in that the applicant had always intended to sue HVC Pty Limited and that the proceedings were commenced against Harbour View Constructions in error. In support of this submission the applicant relied upon a number of matters including the following:- (a) In the claim form completed on 21 July 1999 and submitted to Allianz (then MMI) HVC Pty Limited is nominated as the employer. (b) The applicant's solicitors, Brydens, took the initial instructions from the applicant's wife on 2 December 1999 and in Ms Fai's affidavit she asserts that at the conference the name of the employment was recorded as Harbour View Constructions Pty Limited. (c) For some reason which was not explained no attempt was made to search the ASIC names index for this company until 22 February 2001 although on 27 February 2000 a business names search was conducted. 7. Despite the instructions recorded that the applicant was employed by a company and despite what was indicated by the business names search, on 5 June 2001 the applicant's solicitors commenced the proceedings against the business name. 8. The first submission made by Mr Parker of counsel for Allianz was that it would be futile for the court to allow the amendment because there is no evidence that the applicant was employed by HVC Pty Ltd. Whilst I accept that no such assertion is made by the applicant in his affidavit, in my view it is implicit from the evidence before me that the applicant asserts that he was and there is evidence which suggests that this may be so. The issue of whether a contract of service existed between the applicant and HVC Pty Ltd at the relevant time is ultimately a question for determination by the trial judge in the event that I grant the application. 9. Counsel for the applicant relied upon the Court of Appeal authority McInnes and Ors v Wingecarribee Shire Council and Anor (1987) 10 NSWLR 660 an appeal from the Land and Environment Court. Pt 10 of the rules of that court contain a provision which is almost identical to Pt 15. Priestly JA, with whom the President and Clarke JA agreed, said at 668:- The courts have adopted, when construing rules of the general kind in question in the present case, an approach which gives the empowering words in such rules as full a meaning as they can reasonably bear in their context. … the preferred approach at the present time is to give courts very ample jurisdiction to grant amendments including those which as a matter of simple fact allow causes of action to be litigated which could not be litigated if the amendment were not allowed, leaving it to the discretion of the court to decide when justice requires that such an amendment should or should not be granted. … 10. In this case if the court were to refuse the applicant's application, because of the operation of the Workers Compensation Legislation Amendment Act, 2001 and associated regulations, he would be unable to litigate his claim in the Compensation Court and would need to file an application in the Workers Compensation Commission. 11. The applicant's solicitors also rely upon what fell from Clarke J in Lloyd Steel Co(Aust) Pty Limited and Anor v Jade Shipping SA and Anor which concerned Pt 20 r 4 of the Supreme Court rules which deals with amendments to originating process after the expiry of the periods of limitation. In particular the applicant relies upon the statement at 218 E that the rule is not limited to those cases where there is a mere misdescription of a particular entity but extends to cover cases where the party intended to be sued is wrongly identified, as is the case here. 12. Pt 15 gives the court a very broad discretion. One important factor relevant to the exercise of the discretion is any prejudice the respondent would suffer if the amendment were made. In my view in this case the answer to that inquiry is none:- (a) As I have already indicated the claim was lodged in the name of HVC Pty Limited. It was allocated a claim number which was used in subsequent correspondence. (b) There were communications (for example the letter of 6 March 2000) from the applicant's wife to the insurer on the letterhead of Harbour View Constructions which also refers to HVC Pty Limited. (c) The wages declaration completed by the applicant as a director of HVC Pty Limited on 28 September 2000 refers to the insured as Harbour View Constructions. (d) The policy in respect of the period 10 May 1998 to 10 May 1999 describes the insured as HVC Pty Ltd T/as Harbour View Constructions. (e) The applicant also relies upon correspondence from an organisation known as Fit for Work to the insurer which refers to the employer as Harbour View Constructions. 13. It was submitted on behalf of the applicant, and I accept, that it could not be contended that the insurer was misled in that it emerges from the documents associated with the policy and with the claim that HSV Pty Limited and Harbour View Constructions were used interchangeably to identify the applicant's employer. 14. Having regard to the totality of the evidence before me on this application I am satisfied that it was the clear intention of the applicant and of his solicitors to bring the proceedings against the company which he alleges employed him at the relevant time and that this intention was not carried into effect, in my view due to lack of care on the part of his solicitors or alternatively a lack of understanding of the basics of litigation and what constitutes a legal entity. 15. Mr Hanlon for the applicant emphasised that the purpose of the application was to correct the record and not to substitute a different party. It was submitted on behalf of the respondent that what the applicant is seeking is not an amendment in the strict sense of the word but the substitution of a different party, in fact a different type of entity. However, in my view it is meaningless to seek to draw a distinction between an amendment and a substitution in that the latter is still an amendment and in my view the wording of Pt 15 in particular subr 1(3) combined with what fell from the Court of Appeal in McInnes gives the court the power to make the orders sought and in the event of the Court doing so the amendment takes effect from the commencement of the proceedings. 16. Having regard to all of these matters, and subject to one further matter raised by the respondent, I am satisfied that it is appropriate for me to exercise my discretion and to allow the applicant to amend the application by nominating HVC Pty Limited as the respondent. 17. Finally, the respondent relied upon decisions of Judge Neilson in particular Farris v C B Richard Ellis Pty Limited (2002) NSWCC 12 and submitted that the court does not have the power to make the amendment because the application as filed was a nullity there were therefore no pending proceedings as at 1 April 2002 as required by Workers Compensation (General) Regulation 1995, Reg 93. In Farris Judge Neilson adopted the wording approved by Clarke JA in Norcal Pty Ltd v D'Amato (1988) 15 NSWLR 376 at 393E where His Honour said:- A legal proceeding is "pending" as soon as commenced … and until it is concluded, ie so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. 18. In my view although the initial proceedings were misconceived, nevertheless as at 1 April 2002 there was a pending application for determination, that is there were proceedings pending in respect of which the Court could make an order on the matters in issue although in this case the likely result would have been that the application was struck out. 19. For these reasons I am satisfied that the Court does have the jurisdiction to make the orders sought and I order the applicant to file and serve an amended application within 14 days. I further grant leave to the applicant to amend para 5 of the application to allege in the alternative that he was a deemed worker pursuant to sch 1.2 of the Workplace Injury Management and Workers Compensation Act 1998. 20. Finally, on the question of costs, these proceedings have now been on foot for over two years and a considerable amount of costs have been expended by both sides. Had the applicant's solicitors taken more careful instructions in the beginning and given proper consideration as to the appropriate respondent not only could the substantive application have been heard when listed for hearing on 17 April 2002 but also much of these costs would not have been expended unnecessarily. I consider the appropriate order is that the applicant have no costs of the proceedings up to and including today and I decline to make an order that the applicant pay the respondent's costs of the proceedings to date. Mr R Hanlon instructed by Brydens Law Office appeared for the applicant Mr A Parker instructed by Dexter Healey appeared with leave for Allianz Australia Workers Compensation (NSW) Limited