New South Wales Supreme Court CITATION : Short v Hartley Plumbing (Qld) P/L & Ors [2003] NSWSC 46 HEARING DATE(S) : 6 February 2003 JUDGMENT DATE : 14 February 2003 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) Leave is granted to the plaintiff to amend the proceedings to name as third defendant "Corduke Limited" in lieu of "Richards Avenue Pty Limited"; (2) Each party is to pay his/its own costs of the motion. CATCHWORDS : Substitute defendant: mistake in name of party Limitation Act 1969 (NSW) - s 60C LEGISLATION CITED : Construction Safety Act 1912 Supreme Court Rules - Part 20 McGee v Yeomans [1977] 1 NSWLR 273 CASES CITED : Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 Mitchell v Harris Engineering Company Ltd [1967] 2 QB 703 William Stanley Short (Plaintiff) Hartley Plumbing (Qld) Pty Limited (First Defendant) PARTIES : Messina Formwork Pty Limited (Second Defendant) Cordukes Limited (Third Defendant) FILE NUMBER(S) : SC 20295/2001 Mr R Stanton (Plaintiff) COUNSEL : Mr N E Chen (Third Defendant) Ms E Whyte Marsdens Law Group (Plaintiff) SOLICITORS : Ms B Trevaskis Minter Ellison (Third Defendant) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 14 FEBRUARY 2003 20295/2001 - WILLIAM STANLEY SHORT v HARTLEY PLUMBING (QLD) PTY LIMITED & ORS JUDGMENT (Substitute defendant: mistake in name of party) 1 MASTER: By notice of motion filed 8 May 2002, the plaintiff seeks firstly, leave to amend the proceedings to substitute Cordukes Limited as a defendant in lieu of the original third defendant pursuant to Part 20 of the Supreme Court Rules; secondly, that such amendment be regarded as having been made on 4 April 2001 pursuant to Part 20 r 5A; or thirdly, in the alternative, that the limitation period for the plaintiff to commence proceedings against Cordukes Limited, be extended to 5 December 2001, pursuant to s 60C of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on the affidavit of Elyse White sworn 30 May 2002. The proposed defendant, Cordukes Limited, does not rely upon any affidavit evidence. 2 The plaintiff is now aged 54 years of age. He was employed as a plumber and was working on a construction site when the accident occurred. In the statement of claim filed 4 April 2001, the first defendant is Hartley Plumbing (Qld) Pty Limited and the employer of the plaintiff. The second defendant is Messina Formwork Pty Limited, who was the formwork contractor. The third defendant was named as Richards Avenue Pty Limited. The plaintiff has discontinued proceedings against Richards Avenue Pty Limited. 3 It is conceded that the plaintiff's solicitor has always sought to name, as the third defendant, the head contractor and occupier of the property. The plaintiff's solicitor has deposed that this was always her intention and this accords with the allegations against the third defendant contained in the statement of claim. 4 The statement of claim alleges that at around 2.00pm on 4 August 1998, the plaintiff was standing on the formwork platform on the premises at 168-180 Chalmers Street, Surry Hills ("the premises"), when a handrail attached to the platform became detached, causing the plaintiff to fall. The particulars of negligence and breach of statutory duty against the third named defendants, Richards Avenue Pty Limited, were particularised as failure to take any adequate measures or reduce injuries to the plaintiff; failure to supply safe and suitable scaffolding; failure to ensure the equipment used by the plaintiff was safe and free from defects; failure to warn the plaintiff of risk of injury in performing the work requested on the premises; failure to take adequate precautions for the safety of the plaintiff; failure to inform the plaintiff of the need to take additional care; exposing the plaintiff to unnecessary risk of injury; failure to observe that the plaintiff was in a position of peril in the circumstances; and failure to ensure the safety of the plaintiff. 5 Further, or in the alternative, the statement of claim pleaded that the plaintiff's injury, loss and damage were occasioned due to breaches by the second and third defendant of their obligations to the plaintiff under the regulations made pursuant to the Construction Safety Act 1912. In breach of Regulation 73(1), the first defendant failed to provide safe and suitable scaffolding; in breach of Regulation 73(3), the first defendant failed to fence or otherwise secure the safety of the plaintiff when working in a place where the plaintiff would be liable to fall a distance of more than 1.8 metres; in breach of Regulation 74, the first defendant failed to provide the plaintiff with a safety line or safety harness. 6 On 7 March 2001, the plaintiff's solicitor reviewed all material and identified potential defendants in these proceedings, in particular, the fourth defendant, Cordukes Limited. She then referred the file to her then clerk, Ms Rebecca Milroy, and asked her to undertake Australian Security searches of the identified parties. Ms Milroy conducted a search of the company name "Cordukes". Ms Milroy highlighted Cordukes Pty Limited and highlighted the notation on the bottom "organisation has now a new name". The new name was Richards Avenue Pty Limited. Thus an error occurred when the clerk inadvertently highlighted the entity "Cordukes Pty Limited" rather than "Cordukes Limited", both of which appear on search. 7 On 8 March 2002, the plaintiff's solicitor sent correspondence to the first defendant asking for details of potential defendants. On 4 April 2001, a statement of claim was filed and, in error, the third defendant Richards Avenue Pty Limited was incorrectly named instead of Cordukes Limited. 8 On about 3 May 2001, the plaintiff's solicitor received a facsimile from Clinch Neville Long solicitors denying that Richards Avenue Pty Limited had any connection with the cause of action as pleaded in the statement of claim. The plaintiff's solicitor then realised that something was wrong. Upon receipt of this facsimile, the plaintiff's solicitor caused a search to be done of Cordukes Limited. The director of Richards Avenue Pty Limited and Cordukes Limited is the same, John Edwin Cordukes. 9 On 15 May 2001, a notice of discontinuance against the third defendant Richard Avenue Pty Limited was forwarded to the court. 10 The plaintiff's solicitor amended the statement of claim to delete the name of the third defendant and renamed the third defendant as Cordukes Limited and joined another defendant: the Presbyterian Church NSW Property Trust. She requested that the first and second defendants consent to this amendment. A number of attempts to file the amended statement of claim were rejected and a letter was sent to the court by way of explanation on 17 October 2001. On 31 October 2001, the plaintiff was granted leave to file an amended statement of claim joining additional defendants. On 5 December 2001, the second amended statement of claim was filed. This notice of motion was filed on 8 May 2002. 11 Part 20 rule 1 of the SCR reads: "(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document 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 a party, subrule (1) applies to the person intended to be made a party as if he were a party. (3A) An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of commencement of the proceedings, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made. (4) This rule does not apply to the amendment of a minute of a judgment or order or of a certificate." 12 The power exercisable under Part 20 r 1 is discretionary. In McGee v Yeomans [1977] 1 NSWLR 273 Glass JA (with whom Moffitt P agreed) stated at 280: "I am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v. Neal (1887) 19 QBD 394 and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow: cf. Sophron v. Nominal Defendant (1957 96 CLR 469 at 475). The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity." 13 This passage was subsequently quoted with approval by the New South Wales Court of Appeal in Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 at 173. 14 The plaintiff referred me to a similar case, namely Mitchell v Harris Engineering Company Ltd [1967] 2 QB 703. In Mitchell, the solicitor's clerk incorrectly named the defendant as H E Co (Leeds) Ltd instead of the correct employer H E Co Ltd in a statement of claim. Both companies had the same secretary and directors. The mistake had been made by a junior clerk who was given a form of writ naming the employers' company as defendants. He added to that name the word "(Leeds)" because on a search of the English Companies Register he found no "H. E. Co. Ltd." but found H. E. Co. (Leeds) Ltd with a registered office at the address at which he believed the employers carried on business. The English rule RSC Ord 20 r 5(3) is similar in terms to Part 20 r 4(3) of the SCR which is reproduced below. 15 Lord Denning held, at 718-719, that although the amendment involved the substitution of one legal entity for another, it was within the language of subrule (3), "an amendment to correct the name of a party" in a case where there had been a genuine mistake which did not mislead the true defendants. 16 The relevant portions of Part 20 rule 4 of the SCR provide: "Statutes of limitation (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired. (2) (Repealed) (3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party. (4) … (5) … (5A) An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim. (6) This rule has effect in relation to a summons as it has effect in relation to a statement of claim. (7) This rule does not limit the powers of the Court under rule 1." 17 The issue for determination before me is to characterise the mistake, which the plaintiff claims to have made and ascertain whether it meets the requirements of Pt 20 r 4(3). The defendant submitted, firstly that the naming of Richards Avenue Pty Limited was misleading. Alternatively, the defendant submitted that the court should not exercise the discretion in favour of the plaintiff due to the delay in correcting the mistake. Further, the defendant submitted that if leave were granted pursuant to Part 20 r 4, that would remove the procedural bar but the plaintiff would be obliged to apply for an extension of the limitation period and this should not be granted due to the delay in rectifying the error. 18 The statement of claim pleaded a case against the third defendant: the head contractor. The statutory breaches could only have been those of a head contractor. It was a genuine mistake on the part of the plaintiff's solicitor. There was some delay in filing the statement of claim, but in the exercise of my discretion, I would allow the amendment of the name of the third defendant pursuant to Part 20 r 4(3), particularly as Cordukes is already a party to the proceedings because the existing second defendant has already cross-claimed against it. 19 By operation of Part 20 r 5, the amendment dates back to the date of filing the statement of claim. I see no reason to "otherwise order". As the amendment is back-dated, it is my view, that it is not necessary for the plaintiff to seek an extension under the Act. If I am wrong, the defendant submitted that if, in applying ss 60C and E of the Act, I take into account the delay in filing the amended statement of claim, I should refuse to grant such an extension. There is no evidence that the defendant has suffered actual prejudice or lost any document – see s 60E(1)(b). There was a WorkCover authority investigation carried out in relation to the accident and those documents are available to the parties. 20 It was not contended that the plaintiff did not have a real case to advance. If I had to decide the limitation point, it is my view that the defendants have not suffered significant prejudice. I have taken the matters referred to in s 60E(a) to (h) into account. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under ss 60C and E against Cordukes Limited. 21 Costs are discretionary. Normally costs follow the event. If the plaintiff's solicitor had acted more expeditiously when the error in the name of the defendant became apparent, the amended statement of claim could have been filed in time, and this application would have been unnecessary, but the defendant was unsuccessful in its opposition to the orders sought. Taking these matters into account, it is my view that the appropriate order for costs is that each party pay it's own costs. 22 The orders I make are: (1) Leave is granted to the plaintiff to amend the proceedings to name as third defendant "Cordukes Limited" in lieu of "Richards Avenue Pty Limited". (2) Each party is to pay his/its own costs of the motion. ********** Last Modified: 02/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.