Temme v Automotion Australia P/L [2000] NSWSC 467

New South Wales Supreme Court

CITATION : Temme v Automotion Australia P/L [2000] NSWSC 467 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20579 of 1994 HEARING DATE(S) : 15 May 2000 JUDGMENT DATE : 31 May 2000

Gregory William Temme (Plaintiff) v PARTIES : Automotion Australia Pty Limited (Second Defendant) Thomas Snooks and Robert Carpenter trading as Automotion Australia (Proposed Defendants) JUDGMENT OF : Master Malpass

Mr D M Wilson (Plaintiff) COUNSEL : N/A (Second Defendant) Mr T J Hancock (Proposed Defendants) Stacks - The Law Firm (Plaintiff) SOLICITORS : N/A (Second Defendant) Ebsworth & Ebsworth (Proposed Defendants) CATCHWORDS : Leave to amend - mistake in name of parties - not misleading - discretionary considerations. LEGISLATION CITED : Supreme Court Rules 1970, Pt 7 r 7, Pt 20 r 1 and r 4 (3). CASES CITED : Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231. Tomsimmat v G & R Investments (1993) 25 IPR 545. DECISION : See paragraph 20.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 31 MAY 2000

20579 of 1994 GREGORY WILLIAM TEMME v AUTOMOTION AUSTRALIA PTY LIMITED JUDGMENT 1 Proceedings were commenced by Statement of Claim filed on 19 August 1994. The plaintiff suffered injury on 22 August 1998 whilst participating in the Wynn's Safari. He seeks to propound a claim for damages founded on negligence. 2 The original process named three defendants. Australian Bicentenary 1988 Wynn's Safari is not a legal entity. On 15 May 2000 it was struck out as a party to the proceedings. The plaintiff does not now wish to proceed against the third defendant. By consent, the proceedings against it were discontinued. 3 The second defendant presently remains a party to the proceedings. Instead of proceeding against it, the plaintiff now wishes to add Thomas Snooks and Robert Carpenter as the defendants in the proceedings. 4 This relief is sought pursuant to Part 20 rules 1 and 4 (3) of the Supreme Court Rules 1970. The application is opposed by the proposed defendants. 5 The plaintiff has relied on three affidavits sworn by Mr Stack (the solicitor for the plaintiff). The proposed defendants rely on three affidavits sworn by Mr Downing (a solicitor in the employ of the solicitors for the proposed defendants). The parties have tendered a number of documents. 6 Before proceeding further, I should mention one matter that cropped up during the course of submissions. On behalf of the proposed defendants, it was said that the relief sought could not now be granted because the process was stale (see Part 7 rule 7). The rule relates to validity for the purpose of service. This submission led to a short adjournment and a re-opening. Ultimately, for a number of reasons which then emerged, it ceased to be an issue in the application. 7 These proceedings were commenced a few days before the expiry of the relevant limitation period. The Statement of Claim alleges that the second defendant was one of the organisers and operators of the safari. 8 It seems to be common ground that the proposed defendants are the proper defendants to be sued. They were the organisers of the safari using the business name "Automotion Australia". 9 The second defendant was made a party to the proceedings by reason of error on the part of Mr Stack. The searches that he caused to be made turned up the name of the second defendant which had the proposed defendants as directors and shareholders. This company was wound up in 1993. It was de-registered in 1995. In 1998 orders were made for the re-instatement of the company for the purposes of these proceedings. 10 By letter dated 13 July 1999, the insurer (SGIC General Insurance Limited) notified the solicitor for the plaintiff that a policy of insurance had been taken out by the Confederation of Motor Sport for the event and that the event organiser was "Automotion Australia". A search made in October 1999 revealed that from 1 January 1987 the proposed defendants had carried on business under the name "Automotion Australia". 11 The parties have made written submissions (which were supplemented by oral argument). They have referred the court to a number of authorities (including Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 and Tomsimmat v G & R Investments (1993) 25 IPR 545). The relevant law has been well settled for many years and it is unnecessary to make any detailed reference to the authorities. 12 Rule 4 (3) confers a discretionary power on the court to make an order to correct the mistake where there has been a mistake in the name of a party and the court is satisfied that the mistake was not misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. 13 It is well established that the provision covers a mistake in the name of a party where it is intended to sue someone of a particular description. It seems to me that this is the position in the present case. It was intended to sue the organiser of the safari. Instead of suing the named individuals, a mistake in the name of the organiser was made and the company was erroneously sued. 14 In the light of the material placed before the court, I am satisfied that the mistake was not misleading, nor such as to cause reasonable doubt as to the identity of the persons intended to be made parties. 15 Although the plaintiff has satisfied the threshold requirements of the provision, there remain the discretionary considerations. In opposing the making of an order, the proposed defendants rely on a number of discretionary matters. These are identified in written submissions. Whilst I have considered all of these matters, I do not propose to reproduce all of that material. It suffices here to mention certain of the matters. 16 There is the long delay since the accident occurred in 1988. The relevant limitation period expired long ago. It is said that the proposed defendants will be prejudiced or have been prejudiced by that delay. Reliance is placed on the material appearing in the affidavit sworn by Mr Downing. 17 The plaintiff has tendered documentation which is directed to meet the allegations of prejudice. I have had regard to both this material and what has been said in the affidavits sworn by Mr Downing. 18 Although the delay gives rise to presumptive prejudice and perhaps there may be some actual prejudice, it seems to me that in the circumstances of this case a fair trial can still take place. 19 The plaintiff bears the onus of satisfying the court that an order should be made. The Court has regard to the interests of justice. In my view, that onus has been discharged. 20 I give leave to the plaintiff to file a Further Amended Statement of Claim naming Thomas Snooks and Robert Carpenter trading as Automotion Australia as the defendants in the proceedings. I direct that any such Further Amended Statement of Claim be filed within 14 days. The costs of the application are to be costs in the cause. The Exhibits may be returned. **********