Carroll v Thompson (No 3) [2014] NSWDC 98

District Court New South Wales

Medium Neutral Citation: Carroll v Thompson (No 3) [2014] NSWDC 98 Decision date: 11 February 2014 Before: Cogswell SC DCJ Decision: Leave granted to amend statement of claim. Catchwords: CIVIL LAW - Interlocutory application - application to amend statement of claim - defendants' names spelled incorrectly - mistake not misleading nor such as to cause reasonable doubt as to defendants' identity - limitation period. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 64, 65. Category: Interlocutory applications Parties: Mark Carroll (plaintiff) Stephen Thompson (first defendant) Jeffrey Thompson (second defendant) Representation: Counsel: V Jurisich (plaintiff) File Number(s): DC 2012/00386886

Judgment 1Mark Carroll was renting accommodation in Bateau Bay. He was renting a house at 494 The Entrance Road in Bateau Bay. On 16 December 2009 he says that he had an accident and fell down the front steps when they collapsed. He says that he was injured. Just under three years later, on 13 December 2012, he issued a statement of claim out of this Court. He alleges that the defendants named in that statement of claim are the owners and the landlords. The defendants are named as Steven Thompson and Geoffrey Thompson. 2No defence has been filed by either defendant to Mr Carroll's statement of claim. The proceedings are now at the stage where Mr Carroll is wanting to have judgment entered against both defendants and his damages assessed. 3Mr V Jurisich of counsel appears for Mr Carroll before me today. There is no appearance on behalf of the defendants. Mr Jurisich has applied to amend the statement of claim. He is asking that the defendants be named slightly differently. In his amended statement of claim which he has provided as the form in which I should make the amendment, the defendants are named as Stephen George Thompson and Jeffrey Laurence Thompson. Mr Jurisich's case is that they are the same two persons as the defendants named in the original statement of claim. 4Mr Jurisich makes his application under s 64 of the Civil Procedure Act 2005 (NSW) and has drawn my attention to s 65 of the same Act. Section 64 empowers me to "grant leave to a party to amend any documents in the proceedings." Mr Jurisich needed to refer me to s 65 as well because the limitation period for Mr Carroll bringing his case against the Thompsons has expired. Section 65(2), which Mr Jurisich relies upon, relevantly says as follows - "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: (...) (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". 5Mr Jurisich has tendered and called evidence on the question of whether there is any doubt about the identity of the appropriate defendants in these proceedings. As I said, Mr Carroll claims that the accident occurred at 494 The Entrance Road Bateau Bay and claims that that premises was owned by the two defendants. 6The first significant document which Mr Jurisich provided me, which I marked for identification 4, is a property search. I will now mark that document exhibit A1. I am satisfied that that document shows that the owners at the time of Mr Carroll's claimed accident were Jeffrey Laurence Thompson and Stephen George Thompson. In fact that is the only evidence which I think Mr Jurisich needs to rely upon in this application. 7I am satisfied that there was a mistake in the original statement of claim filed on 13 December 2012 in the names of both defendants and I am satisfied that the appropriate defendants are those named in the proposed amended statement of claim. The mistake in my opinion is neither misleading nor such as to cause reasonable doubt as to the identity of the persons Mr Carroll intended to make parties to his action. 8For those reasons I grant the plaintiff leave under s 64(1)(b) of the Civil Procedure Act to amend the statement of claim by substituting as defendants Stephen George Thompson and Jeffrey Laurence Thompson. On the amended statement of claim I have placed the seal of the Court and noted and initialled that leave is granted. HIS HONOUR: Okay, so there is the statement of claim. Now you have got a notice of motion for default judgment, two of them. One of them you have already got your order haven't you? JURISICH: Yes, yes your Honour. The one 3 October. HIS HONOUR: Stephen yes. JURISICH: Stephen. HIS HONOUR: Good but you need Jeffrey, okay. JURISICH: Your Honour can I-- HIS HONOUR: I was just going to - what's that? JURISICH: Can I refer your Honour to the Uniform Civil Procedure Rules 2005 (NSW) about personal service-- HIS HONOUR: What part? JURISICH: At 10.2, reg 10.20. HIS HONOUR: Point 20? JURISICH: Yes, yes sorry, 10.20 and sub rule 2(b)(ii). HIS HONOUR: That deals with the Local Court. JURISICH: No but above you see it says up there "District Court - and the originating process in the Local Court." So all of them (a) deals with. HIS HONOUR: What's personal service? What's the definition? I don't think - I'm glad you drew my attention to that but I think you've served Jeffrey Thompson-- JURISICH: Yeah. HIS HONOUR: Have you because-- JURISICH: When you read the two components - that's what the process server has followed I think. HIS HONOUR: I don't think he's - it seems to me 10.20 subject to anything you say except as otherwise provided 10.20.2, any originating process in proceedings in the District Court must be personally served and then it talks about the Local Court, examinations, subpoena. This is the originating process and personal service says 10.21 "on a person is effected by leaving a copy of the document with the person or if they don't accept it by putting it down in the person's presence." JURISICH: Yes. HIS HONOUR: So in the nature of the document and interestingly an annotation to the rules says "Originating process is defined in the dictionary as meaning the statement of claim or summons by which proceedings have been commenced" and includes a statement of - "Personal service of originating process is an important step in ensuring that a party receives proper notice of proceedings is part of the fundamental requirements of natural justice or due process. Only in exceptional circumstances or under the authorities specific statute provisions can a defendant deprived of the entitlement to receive notice of the commencement of proceedings. Substituted service may be permitted under 10.14." No I don't think you've served Jeffrey. I don't think so. What do you-- JURISICH: Well - well I think what the process server has done is read 10.20(2)(a) and (b) and then said that the originating process in the Local Court and those other Courts must be served in one of the following ways. See because it says "Any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the District Court must personally served and any originating process in a Local Court must be served in one of the following ways" And then it describes that and then after that paragraph it says "and any order for examination, garnishee" and then after that subparagraph says "and any subpoenas." So it's dealing with every incident individually so the (b) is not conjoined with (a) at all. HIS HONOUR: I think you're right. I don't think he, that is Clinton Davies in his affidavit of service 14 January 2014 - he tells us what he's done but I don't that amounts to personal service under-- JURISICH: If it was a subpoena he would have been all right. HIS HONOUR: Yes. JURISICH: But it's a statement of claim. HIS HONOUR: All right. JURISICH: And I don't think that 20 - 10.2(1) gets him out of it at all. HIS HONOUR: It helps, no I think you're right. I think you're right. So if we go back to notice of motion for - because r 16.3(2) "Unless the court orders otherwise, an application for judgment to be given under this Part" about default judgment "must be accompanied by an affidavit of service of the statement of claim." And there's an affidavit of service all right but it hasn't effected service. JURISICH: No, it's an affidavit. It's an ineffective affidavit. HIS HONOUR: Yes. So I think-- JURISICH: It's an invalid one. HIS HONOUR: Well you've got two choices at least on that view. I can refuse the order sought in the notice of motion and dismiss the notice of motion or I can adjourn the motion and-- JURISICH: Just one moment. HIS HONOUR: Yes. See it depends on what you want to do. If you want judgment-- JURISICH: Just having another look at that substituted service - your Honour sorry about this - I was caught by this completely this morning. So I'm indebted to your Honour for your Honour's assistance with all this but substituted and informal service, I haven't looked at that. HIS HONOUR: My guess is that won't help because it's probably a condition precedent that cannot practicably be served. That's what you have to prove, r 10.14. JURISICH: Yes. HIS HONOUR: There's no evidence that it cannot be practicably be served. JURISICH: No that's (2). HIS HONOUR: So I don't think it's fair to Mr Jeffrey Thompson that I proceed when he hasn't been formally served or least it hasn't been proved. Chances are he has of course but the evidence does not amount to the high standard understandably required of personal service for a statement of claim, particularly if he's not here. You get judgment against him and then you turn up with the bailiff to get - so you've got to think over lunch as to whether you want to proceed against Stephen only and I dismiss the notice of motion or whether you want to adjourn the notice of motion for default judgment against Jeffrey Laurence Thompson and I would hold onto the matter and give-- JURISICH: Would it come back? That's the question I want to ask, would it come back? HIS HONOUR: Well I'll make a point of doing that. I'll make a point of doing that because I'm seized of it now and you get a process server to serve it pretty quickly because we want to get it done quickly. JURISICH: Of course your Honour. HIS HONOUR: Well by that I mean, we don't want to stand it over to April or May. JURISICH: No, no, no. HIS HONOUR: You want it over and done with. Your client will and-- JURISICH: Just I think over the luncheon adjournment we'll speak to the process server as well. HIS HONOUR: Yes I think that's an idea. JURISICH: And try and line something up there your Honour. HIS HONOUR: Draw his attention to the-- JURISICH: Yes. HIS HONOUR: But look he might say look doesn't the judge know about subrule such and such - I mean process, that's his job. So it may well be that we're all overlooking something but my understanding is the same as yours that it's defective service of an originating process issued by the District Court which has to be personal and so have a think about it and it sounds as though then we could bring it back in a week or two's time. JURISICH: Yes two weeks. HIS HONOUR: But it's up to you. JURISICH: Yes, all right, thank you your Honour. HIS HONOUR: I'll go and have some lunch and then I'll see you at 2:00 pm. JURISICH: I'll get some instructions. HIS HONOUR: Five past two. JURISICH: Five past two, thank you your Honour.