respect to that person on the day the proceeding commenced. (6) The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under subrule (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise." 14. The High Court of Australia in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 66 ALJR 76 examined O36.01 of the Victorian Supreme Court Rules which is identical in terms to the NT O36.01. The leading judgment is that of McHugh J with whom Brennan and Deane JJ agreed. Dawson and Toohey JJ came to the same conclusion. 15. McHugh J set out the legislative conditions necessary to allow the proposed amendment in that case as being (at 88): "First, there must be a mistake. Secondly, the mistake must be 'in the name of a party'. Thirdly, the court may only make the order where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his or her claim or defence in

a way that could not be fairly met by an adjournment, an award of costs or otherwise." (NT order 36.01(6)) 16. As to the first of the requirements - after examining the authorities relating to the English O20 r5 (identical to Vic O36.01 and NT O36.01), McHugh J favoured the wide interpretation given to it by the Court of Appeal in Evans Constructions Co Ltd v Charrington and Co Ltd (1983) QB 810 in preference to the test enunciated by Devlin LJ (as he then was) in Davies v Elsby Brothers Ltd (1961) 1 WLR 170. The latter test was a restrictive interpretation of the order such that amendment was only possible in cases of misnomer. 17. Further to this, McHugh J said (at 88): "Order 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit (Holmes v Permanent Trustee Co of New South Wales Ltd [1932] HCA 1; (1932) 47 CLR 113 at 119). It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description." (As was the case under consideration.) 18. Dawson J in the same case restricted the test somewhat saying: "It may sometimes be difficult to determine whether there is a mistake in name or a mistake in identity. When that is so and an amendment is sought under r36.01, the question can only be resolved by asking whether, in all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed." (at p.81) 19. On any view, the High Court has endorsed a beneficial interpretation of the power to amend and taken a generous view of the circumstances in which amendments are possible. 20. In the present case, the respondent is correctly named in the Writ; there is no misnomer. Nor is there any mistake as to her identity. The true nature of the action is apparent: it is brought by the plaintiff (in whatever capacity) for the benefit of herself and other named relatives of the named deceased. The deletion of "(as personal representative)" in the title to the Writ, in my view of the matter, changes a description of the plaintiff - albeit relating to the capacity in which she sues - and neither alters the name or identity of the plaintiff in the proceedings or the nature of the proceedings. Nor does it expose the appellants to any new or different liability. The proposed amendment was for the purpose of eliminating surplusage introduced in error and determining the real question in controversy between the present parties to the proceedings, and, as such, I think O36.01(1) enabled the learned Judge to make the order he did. In my view, contrary to the applicants' argument, this case does not involve consideration of O36.01(4). 21. The present plaintiff is able to bring the action she has brought in her personal capacity, but has in error sued as personal representative. That error, in my view, may be remedied under O36.01(1). 22. The appellants did not allege any prejudice consequent upon the amendment apart from loss of a potential defence under the Statute of Limitations. 23. Section 48 of the Limitation Act was amended by s20 of the Supreme Court (Rules of Procedure) Act 1987 (from 1 November 1987). By this amendment, s48A was inserted. The amendment eliminates all notion of prejudice argued to be suffered. It provides: "(1) a court would, but for the expiry of a relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court shall allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise. (2) This section does not apply to an amendment in a proceeding commenced before the commencement of this section." 24. The appellants' right to rely on the Statute of Limitations being thus limited, a wrong capacity to sue may be amended. 25. Although there has been judicial recognition of instances where a defect may render a Writ a "nullity", some care must be taken with this terminology. A document which conforms with the rules of court in form and has been issued and sealed by the court should not later be described as a nullity because of the connotation of an absolute 'void' that this induces; cf Atco Industries (Aust.) Pty Ltd v Ancla Maritima S.A. and Others (1984) 35 SASR 408 at 413, 414, 415 per Walters J, 416, 417 per Mohr J. That a defect may render the document inoperative - in that it is incapable of amendment and yet unable to operate without the necessary amendment - may be accepted; however the term "nullity" is one which, with the statutory and judicial trend favouring substance over form and wide powers of amendment, can be seen to be altogether inappropriate. 26. I would grant leave to appeal but dismiss the appeal with costs. JUDGE3 MILDREN J This is an application for leave to appeal from an order made by Gray AJ on 21 February 1991 granting leave to the respondent to amend the Statement of Claim in these proceedings. 2. The Writ in this action was commenced by the plaintiff who is described in the heading as "Dulcie Stuart (as personal representative of the estate of Jennifer May Shillingworth)." 3. The Statement of Claim, which is endorsed on the Writ, alleges in paragraph 1: "The plaintiff is the mother of Jennifer May Shillingworth ("the deceased") and brings this action as the personal representative of the estate of the deceased for the benefit of the members of the deceased's family pursuant to the Compensation (Fatal Injuries) Act 1980." 4. Paragraph 15 of the Statement of Claim alleges: "The plaintiff claims damages pursuant to the Compensation (Fatal Injuries) Act 1974 and the following are the other persons for whose benefit this action is brought:

1. Dulcie Stuart - Mother
2. Johnnie Newchurch - Brother" and there then follows a list of seven other relatives, including the deceased's father, and six other siblings of the deceased.
3. Despite references to the Compensation (Fatal Injuries) Act 1980 and the Compensation (Fatal Injuries) Act 1974 in the pleadings, there is no doubt that the action was intended to be brought pursuant to s7 of the Compensation (Fatal Injuries) Act which creates a statutory cause of action for the benefit of a deceased's relatives against a tortfeasor whose negligence brought about the death of the deceased. Section 8(1) of the Act provides that not more than one action shall be brought, and s8(2) provides that, subject to s13, the action shall be brought by and in the name of "the personal representative of the deceased person for the benefit of those members of the deceased person's family who sustained damage by reason of his death." Section 13 of the Act provides that if an action is not brought by the deceased's personal representative within six months of the deceased's death, any one or more of the persons for whose benefit an action may be brought may bring such an action.
4. The affidavit evidence showed that the deceased was aged sixteen as at the date of her death on 1 February 1985. She therefore lacked testamentary capacity (Wills Act, s6), and there is no evidence that she nevertheless made a will or fell within any of the exceptions to s6. No application had been made to this Court for a grant of Letters of Administration. The deceased died at the Alice Springs Hospital. The action was commenced on 19 January 1988. An action had also been commenced against the same defendants by the Public Trustee as administrator ad litem of the deceased's estate by Writ filed in this Court on 27 January 1988 for damages pursuant to the Law Reform (Miscellaneous Provisions) Act. This latter action is not the subject of this appeal.
5. The appellant contended that the respondent's action is a nullity, and cannot be cured by any amendment, because at the time of the institution of the Writ, the plaintiff was not in fact the deceased's personal representative at all. The appellant relied on a series of authorities to this general effect, including Hilton v Sutton Steam Laundry (1946) 1 KB 65; (1945) 2 All ER 425 and Bowler v John Mowlem and Co Ltd (1954) 3 All ER 556. These cases show, in general terms, that where an action under the Fatal Accidents Act (UK) was brought by a relative in the capacity of the deceased's personal representative, where there was no will naming the plaintiff as executor, and no Letters of Administration had been granted to the plaintiff as at the date of the issue of the Writ, no amendment will be made to enable the plaintiff to sue in the capacity of a dependant if the time for the bringing of the action had by then expired. The reason for this is best expressed by Lord Green MR in Hilton (supra) at KB 73; All ER 429: "I should not be averse to discovering any proper distinction which would enable this unfortunate slip to be corrected. Apart from the fact that the solicitors for the defendants in fairness pointed out the difficulty, there appear to me to be no merits on their side. But the Statute of Limitations is not concerned with merits. Once the axe falls it falls, and a defendant who is fortunate enough to have acquired the benefit of the Statute of Limitations is entitled, of course, to insist on his strict rights. He is similarly entitled to insist on the strict application of the rule that the court will not deprive him of those rights by allowing amendments to pleadings. In this case it seems to me that, to allow this amendment would be to deprive the defendants of the benefit of the statute by setting the action on its feet again, and, in effect, validating ab initio the original representative Writ."

formal defect or by an irregularity, unless the court is of opinion that substantial injustice has been caused and that injustice cannot be remedied by an order of the court. (2) The court may make an order declaring that any proceeding is valid notwithstanding any defect or irregularity." 16. Finally, O36.01 of the Supreme Court Rules, (which by virtue of s6 of the Supreme Court (Rules of Procedure) Act 1987 is declared by that Act to be "ratified, validated and approved" and "duly made under the Principal Act by the Judges of the Supreme Court") provides: "36.01 GENERAL (1) For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the proceeding. (2) In this Order "document" includes originating process, an endorsement of claim on originating process and a pleading. (3) An endorsement of claim or pleading may be amended under subrule (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding. (4) A mistake in the name of a party may be corrected under subrule (1) whether or not the effect is to substitute another person as a party. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. (6) The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under subrule (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. (7) For the purpose of subrule (6) "any other party to the proceeding" includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party. (8) Subrule (6), with the necessary changes, also applies to an application under rule 14.03(2). (9) Subrule (1) does not apply to the amendment of a judgment or order." 17. Section 48A of the Limitation Act is identical to s34 of the Limitations of Actions Act 1958 (Vic) and O36.01 of the Supreme Court Rules is identical to O36.01 of the Victorian Supreme Court Rules. Since the hearing of this appeal, the Victorian provisions have been interpreted by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (supra). In that case, McHugh J (with whom Brennan and Deane JJ agreed) said: "Order 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit (Holmes v Permanent Trustee Co of New South Wales Ltd [1932] HCA 1; (1932) 47 CLR 113 at 119). It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description." 18. Although that case is concerned, on its facts, with an application to amend the proceedings to substitute one party for another as a defendant, it is to be noted that the majority of the judges of the High Court expressly disapproved of a restricted interpretation which had previously been given to these rules by the Supreme Court of Victoria based upon Davies v Elsby Brothers Ltd (1961) 1 WLR 170; (1960) 3 All ER 672. The Court of Appeal in that case had held that a plaintiff could not be permitted to amend "if that would deprive the defendant of the benefit to which he had become entitled as of right under the Statute of Limitations." As McHugh J said at 87: "Having regard to the history of O 20, r5(3) of the English Rules, it is obvious, as the English Court of Appeal pointed out in Mitchell v Harris Engineering, that the subrule was intended to overcome the decision in cases such as Davies. There is no reason why its Australian counterparts should be given a more restricted meaning. Consequently, in so far as cases in Queensland and the judgement of the Full Court of the Supreme Court of Victoria in the present case suggest that such a rule applies only to misnomers and that Davies is still a relevant decision, they were wrongly decided and should be overruled. 19. In considering whether there was "a mistake in the name of a party" within the meaning of O36.01(4), McHugh J, at 88-9, applied the test laid down by Lloyd LJ in The "Al Tawwab" (1991) 1 Lloyd's Rep 201 at 207: "In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave

to amend would always be given. So there must be some narrower test. In Mitchell v Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v Charrington it was the current landlord. In Thistle Hotels v McAlpine (unreported, Court of Appeal, 6 April 1989) the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard (1988) 2 Lloyd's Rep 274 it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended

defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise." 20. The "Al Tawwab" concerned an application to substitute for the plaintiff, (a company which no longer existed), the parent company of the plaintiff with which it had merged and to which had been transferred all of its rights and obligations. The plaintiff had been the owner of a vessel damaged in a collision, and proceedings had been commenced to recover the cost of repairs. Lloyd LJ, after formulating the test referred to above, held that there was never any doubt as to the person intending to sue, namely the person in whom the rights of ownership were vested at the date of the issue of the Writ, which the defendants well knew. In the result it was held that the mistake by the solicitors acting for the plaintiffs in the matter, had been a mistake as to name but not as to identity. 21. It seems to me that the mistake in this case was of precisely the same kind as that dealt with in The "Al Tawwab." It is clear from the Statement of Claim that the action was brought for the benefit of the plaintiff in her own right, as well as for the benefit of the relatives of the deceased named in the Statement of Claim. Indeed, as only one action could be brought, there could never be any doubt as to who the parties intending to sue were; and the position was made even clearer, (if indeed any further clarity was needed) by the fact that in the proceedings brought against the appellants under the Law Reform (Miscellaneous Provisions) Act, an Administrator ad litem had been appointed, which must have brought home to the appellant that there was neither an executor nor an administrator of the deceased's estate. 22. Counsel for the appellant conceded in argument that, apart from the Statute of Limitations defence, no prejudice would be suffered if the amendment sought was allowed. 23. It seems to me that this is the very type of unmeritorious case that O36 of the Supreme Court Rules was designed to meet. Even if the narrower view of the scope of rule preferred by Dawson J were to be applied, it would not alter the result. Dawson J said (at 81): "It may sometimes be difficult to determine whether there is a mistake in name or a mistake in identity. When that is so and an amendment is sought under r36.01, the question can only be resolved by asking whether, in all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed. If so, then there is a misnomer or misdescription and the rule applies notwithstanding that, as a matter of formality, the amendment results in the substitution of another entity. If not, and the effect of the amendment would be, not to correct the name of the party, but to alter the identity of the party, then that rule does not apply." 24. Applying that test, it seems to me that it can be reasonably said that the amendment sought would have the result that the respondent's name would remain the same in all but description, and no alteration of the identity of the respondent was involved. 25. Accordingly, I would grant leave to appeal but dismiss the appeal with costs.