New South Wales Supreme Court CITATION : Dunlop v EDL Operations Limited & Ors [2007] NSWSC 1070 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 24/09/2007 JUDGMENT DATE : 28 September 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The Notice of Motion filed on 24 May 2007 is dismissed. The plaintiff is to pay the costs of the Notice of Motion. CATCHWORDS : Amendment application - alleged mistake as to name of defendants - the nature of the power and discretionary considerations LEGISLATION CITED : Civil Procedure Act 2005 (NSW) CASES CITED : Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Stewart Dunlop (Pl) PARTIES : EDL Operations Limited (1st Def) Energy Developments Limited (2nd Def) Whytes Gulley Environmental Pty Limited (3rd Def) FILE NUMBER(S) : SC 20371/06 COUNSEL : Mr A. Capelin (Pl) Ms. T. A. Berberian (2nd & 3rd Def's) SOLICITORS : Russell McLelland Brown Lawyers (Pl) Ebsworth & Ebsworth Lawyers (2nd & 3rd Def's) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 28 SEPTEMBER 2007 20371/06 Stewart Dunlop v E.D.L. Operations Limited & Ors JUDGMENT 1 HIS HONOUR: On 10 October 2001, the plaintiff signed an employment agreement with EDL Group Operations Pty Limited and was seconded to Bright Star Environmental. He worked at a waste recycling plant at Whytes Gully. On 13 June 2002, he suffered injury when leaning over a rail and pulling on a submersible pump. 2 On 29 April 2005, he commenced proceedings in the District Court. The pleading named three defendants (EDL Operations Limited, Energy Developments Ltd and Whytes Gully Environmental Pty Limited). The pleading contained the following:- "2. At all material times the defendants and each of them had the care, control, management, maintenance and were in occupation of premises situated at Kembla Grange and operated as an alternative energy plant. 3. At all material times the plaintiff was employed by Bright Star Environmental Pty Limited t/as Bright Star Environmental." The alleged claim was founded in negligence. The particulars thereof have the character of failing to provide a safe system of work. 3 It is said that the plaintiff was unaware of the proper parties to be named as defendants. There was a group of companies known as the EDL Group. It is now accepted that there has never been a legal entity bearing the name of the first defendant. The second defendant seems to be regarded as the holding company of the group. It is common ground that the third defendant was an occupier and the lessee of the worksite from Wollongong Council. 4 By letter dated 6 October 2005, Hicksons Lawyers made contact with the solicitors for the plaintiff. It did so on instructions from GIO Workers Compensation (NSW) Limited in respect of indemnification of the first defendant. The content of the letter laboured under confusion that the first defendant was the employer of the plaintiff, who had been seconded out to the third defendant. 5 In November 2005, the plaintiff issued certain subpoenas to produce documents. Certain documents were produced by EDL Operations and GIO Insurance. 6 The matter came to be listed for hearing in the District Court at Wollongong on 14 August 2006. The hearing did not proceed. In February 2006, his solicitors became aware that the plaintiff had moved to Tasmania. In September 2006, he moved to Scotland to live. 7 In the middle of 2006, there was communication with other solicitors, purportedly acting for the first and second defendants. 8 In August 2006, the solicitors for the plaintiff became aware of a copy Certificate of Registration of Business Name for the business name "Brightstar Environmental" and that the proprietors of this partnership were BSCLP Australia Pty Limited and Brightstar Environmental Holdings Pty Limited (the proposed substituted defendants). Brightstar Environmental has been described as a partnership overseeing the project on which the plaintiff was working. During that month, the proceedings came to be transferred from the District Court to the Supreme Court. 9 In April this year, a Notice of Motion was filed by the second and third defendants (the defendants) seeking, inter alia, the dismissal of the proceedings for want of prosecution. On 24 May 2007, the plaintiff also filed a Notice of Motion. The Notices of Motion came to be fixed for hearing on 24 September 2007. By consent, the latter Notice of Motion was first heard. 10 The plaintiff no longer wishes to proceed against the first and second defendants. He now seeks to amend the Statement of Claim. The proposed Amended Statement of Claim is in evidence (inter alia, it is sought to substitute the proposed substituted defendants for the first and second defendants). 11 Section 64 of the Civil Procedure Act 2005 (NSW) gives a general discretionary power to grant leave to amend. The plaintiff also seeks relief pursuant to s65(2)(b) of that Act. It confers another discretionary power. The relevant provisions are as follows:- "65 Amendment of originating process after expiry of limitation period (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) … (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party," 12 The Court has been referred to a number of decided cases (including Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231). 13 The onus rests with the plaintiff. Firstly, he must satisfy the threshold requirements to enable the exercise of the statutory power. There are two aspects to the power. The statutory power enables the correction of a mistake in the name of a party. The mistake has to be one that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. 14 The second stage of the exercise is a discretionary one and in the present case the viability of the claims, delay and prejudice are relevant considerations. In the exercise of the discretion, the Court has regard to the relevant circumstances and the dictates of justice. 15 Evidentiary deficiencies present an insurmountable obstacle concerning the first aspect of the exercise. There is no evidence from the plaintiff himself. The evidence, such as it is, comes from the solicitor for the plaintiff (Mr McGrath). The contents of his affidavit do little to assist in explaining how the proceedings came to be brought against the three named parties. The Court has been invited to draw the inference that they were sued by reason of an intention or instruction to sue the occupiers of the worksite. The basis of the drawing of such an inference is said to be the infelicitous paragraph 2 of the Statement of Claim. 16 It appears that activities concerning a solid waste energy recycling facility (the facility) took place on the leased worksite, pursuant to a waste processing agreement. The operation commenced in or around September 2000. The proposed substituted parties are members of the EDL Group. The third defendant was the occupier of the worksite and EDL Group Operations Pty Ltd was the employer of staff on it. 17 In or about September 2004, a decision was made to permanently decommission the facility and to remove all equipment and fixtures. In November 2004, the decision was implemented and all equipment and fixtures were removed from the worksite. It was reinstated to its former condition. 18 Largely, the evidence put forward by the plaintiff to support the role played by the two proposed substituted defendants is to be gleaned from the copy Certificate of Registration of Business Name. Generally speaking, the evidence is unhelpful as to the role played by the proposed substituted parties in relation to the worksite. The suggestion seems to be that it was not an active one. 19 The case for the plaintiff is that error was made in the names of the occupiers and it is now merely sought to correct that error by substituting the names of the now known occupiers. 20 As earlier mentioned, the difficulty confronting that submission is the lack of evidence to support it. Indeed, all that the plaintiff seems to be able to offer is that in August 2006, he became aware of the two entities and that they were the members of the partnership involved in the facility. 21 In addition to what has been earlier said, there is a lack of evidence to demonstrate that the proposed substituted parties may have been occupiers of the worksite. Indeed, the evidence suggests that they were not. 22 Rather than suggest that the application is to correct a mistake as to a misnomer, the evidence conveys the impression that the plaintiff wishes to join two new parties. These being parties of which he became aware in August 2006 and hopes, in some unspecified way, to have them held liable for his injury. 23 In the light of what has been said, it is unnecessary to address the second limb of the threshold requirements (whether the mistake was neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party). The question of the satisfaction of this limb was not addressed by Counsel. It may have also caused problems for the plaintiff. 24 In my view, the plaintiff has failed to make out the threshold requirements. Further, I consider that there are discretionary considerations that inhibit the making of the order sought. 25 There is a lack of material to suggest that the plaintiff may have a viable cause of action against either of the two proposed substituted parties. There has been considerable delay. The relevant limitation period has expired. The facility has been dismantled. The Court has been told that the plaintiff has not served evidence on the questions of liability and quantum. There has been such a lack of vigour in the prosecution of the proceedings that the plaintiff is now facing a Notice of Motion for its dismissal. 26 The plaintiff also wishes to amend paragraph 3 of the Statement of Claim (to substitute EDL Group Operations Pty Ltd as his alleged employer). This matter is not controversial and leave is given to make such amendment. 27 Before concluding this judgment, I should mention one other matter. Approaching the close of his submissions in reply, Counsel for the plaintiff made a belated adjournment application. It appeared to be then motivated by a realisation that the plaintiff's evidence on the threshold requirements was likely to fall short. The application was vigorously opposed. 28 What the application would have involved required a successful application for leave to re-open the plaintiff's case and an adjournment in which it might be hoped that some additional evidence could be gleaned. The nature of what that evidence might have been was not made known to the Court. The plaintiff was not willing to make any offer to pay costs thrown away by reason of the adjournment. In all of the circumstances, the belated application was rejected. 29 The Notice of Motion filed on 24 May 2007 is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The exhibits may be returned. ********** 28/09/2007 - incorrect file No. in imported judgment - Paragraph(s) file No. in imported judgment 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.