Emery v Hunter Valley Cranes [1999] NSWSC 306

New South Wales Supreme Court CITATION : Emery v Hunter Valley Cranes [1999] NSWSC 306 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 12571/88 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 8 April 1999

David Edwin Emery bhnf Mark Emery (Plaintiff) v Hunter Valley Cranes Pty Ltd (First Defendant)

PARTIES : Peter Tighe (Second Defendant)

Colin Ross Edwards (Third Defendant)

Roads & Traffic Authority (Fourth Defendant/Applicant) JUDGMENT OF : Master Malpass

App - Mr H Marshall, Mr D Wilson COUNSEL : Rsp - Mr J Stewart P - Mr Vasta (sol) 1,2D - Mr McGillicuddy App - I V Knight, Crown Solicitor SOLICITORS : Rsp - McCulloch & Buggy Solicitors P - Nicholas Vasta & Co 1,2D - J M Crestani CATCHWORDS : Mistake in the name of a party ACTS CITED : Supreme Court Rules, Pt 20 Bridge Shipping v Grand Shipping 173 CLR 231 CASES CITED : "Al Tawwab" (1991) 1 Lloyd's Reps 201 Lloyd Steel v Jade Shipping (1985) 1 NSWLR 212 DECISION : Granted

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

8 April 1999

12571/88 - David Edwin Emery bhnf Mark Emery v Hunter Valley Cranes Pty Ltd & Ors

JUDGMENT 1 These proceedings were commenced in 1988. The plaintiff claims damages for personal injury said to arise out of a motor vehicle accident that took place on 9 September 1987. The accident is alleged to have occurred on O'Riordan Street, Alexandria (the street). There are now four defendants. The fourth defendant is the Roads and Traffic Authority of NSW. 2 The fourth defendant became a party following amendments made in December 1992 (it was sued in its capacity as the responsible authority for the street at the time of the accident). In August 1994, South Sydney City Council (the cross-defendant) and the Council of the City of Sydney (the proposed cross-defendant) were added as the fifth and sixth defendants. On 11 October 1994, the sixth defendant filed a Statement of Defence. It contained, inter alia, an admission to the effect that, at the relevant time, it had the responsibility for the care and control of the street. On 11 April 1995, the fourth defendant filed a Cross-Claim seeking contribution and/or indemnity from the fifth defendant. On 6 February 1996, the fifth and sixth defendants ceased to be parties to the original proceedings. 3 It appears that the Cross-Claim was brought against the fifth defendant because the fourth defendant had taken control of the street in 1993 from the sixth defendant. At an adjourned status conference held on 12 May 1998, the fourth defendant was told that the sixth defendant had not been constituted at the time of the accident. Further inquiry confirmed that the cross-defendant was not constituted until 5 October 1988 and that the proposed cross-defendant had responsibility at the time of the accident. 4 A Notice of Motion was filed on 30 November 1998. It sought leave to file a Fifth Cross Claim joining the former sixth defendant as a cross-defendant to a claim seeking contribution and/or indemnity. Further, it sought an unspecified extension of time under the Limitation Act, 1969 for the filing of the proposed Cross Claim. 5 The application is supported by two affidavits. One has been sworn by Rosemary Cox. The other has been sworn by John Kenneth Hughes. Rosemary Cox is a solicitor in the employ of the solicitor for the fourth defendant. John Kenneth Hughes is a solicitor in the employ of the fourth defendant itself. The opposed application was heard on 26 March 1999. 6 At the commencement of the hearing, the fourth defendant filed an amended Notice of Motion in Court. The hearing then proceeded as an application for relief pursuant to Part 20 of the Supreme Court Rules . Relief was sought on the basis that there had been a mistake in the name of the cross-defendant to the Cross-Claim. The only opposition to the application came from the proposed cross-defendant. 7 At the conclusion of the hearing, I published my decision and delivered short reasons. I have been asked to give detailed reasons. 8 The Court has been referred to a number of decided cases (including Bridge Shipping Pty Limited v Grand Shipping SA & Anor (1991) 173 CLR 231; The "Al Tawwab" (1991) 1 Lloyd's Reports 201 and Lloyd Steel Co (Aust) Pty Limited & Anor v Jade Shipping SA & Anor (1985) 1 NSWLR 212). The applicable law in this State is well settled. Ultimately, there was no dispute as to the power of the Court to make the order sought. The only issue agitated was that of prejudice. 9 There was no dispute that the proposed cross-defendant had responsibility for the care and control of the street at the time of the accident. The present cross-defendant had not been constituted until 5 October 1988. It had been mistakenly sued as the Council having responsibility for the street. 10 The fourth defendant should have been aware at least as early as October 1994 that it had mistakenly named the wrong party as cross-defendant. This could have been ascertained, inter alia, from the pleadings filed in October 1994. The error arose from lack of proper inquiry. 11 The proposed cross-defendant has chosen not to place any evidence before the Court. There is no evidence of actual prejudice. Many allegations of a general nature have been advanced from the bar table. The submissions were short on specific allegations of prejudice. These proceedings are of long standing. The proposed cross-defendant had been a party to the proceedings during the period between August 1994 and February 1996. The same solicitors have acted for both the cross-defendant and the proposed cross-defendant. Many interlocutory processes (including discovery and interrogatories) have been pursued. Investigation has taken place. The plaintiff has indicated that it will make available to the proposed cross-defendant material produced as a result of his investigations. The proposed cross-defendant had the opportunity to make its own investigations when it was a party. 12 The plaintiff's injuries arose from a collision between the vehicle driven by him and a forklift truck. A truck towing a trailer upon which the forklift was loaded was travelling in the opposite direction to that of the plaintiff's vehicle. It seems that the surface of the street (such as humps) may have caused the coupling device between the truck and the trailer to break and this saw the release of the forklift truck. 13 It appears that the coupling device went missing in about 1988. The street was and remains a main road. It would seem that the humps would have been the subject of action well before the fourth defendant became a party in 1992. The material which the plaintiff is prepared to make available includes photographs. 14 I do not consider that delay on the part of the fourth defendant has caused any actual prejudice (inter alia, in relation to the coupling device and the road surface). 15 The bringing of this application has been preceded by many years of delay. Delay of itself may be productive of prejudice. There is presumptive prejudice. It may be difficult to identify the prejudice. In dealing with this question, to the extent that it has application to the circumstances of this case, I bear in mind what was said in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866. Whilst there may be prejudice to the proposed cross-defendant, I do not consider that it is a matter to be given great weight. 16 The Court has a discretionary power to grant the relief sought by the fourth defendant. The discretion is exercised having regard to the relevant circumstances of the particular case before the Court and so that justice is best served between the parties. The party seeking relief bears the onus of satisfying the Court of an entitlement to such relief. 17 In the circumstances of this case, I am satisfied that the onus has been discharged. 18 I make order 1 as sought in the Notice of Motion filed in Court on 26 March 1999. I direct that any Amended Cross Claim be filed within 14 days. 19 The fourth defendant seeks an order that the costs of the application be costs in the cause. The proposed cross-defendant argues that it should have the costs of the application. I do not accept the submission advanced on behalf of the fourth defendant. It bears the responsibility for the need for the making of this application. I order that the fourth defendant pay the costs of the application. **********