that an error had been made in his name in proceedings 176 of 1985. 2. On 13 September 1990, the plaintiff was advised by the defendant that it would not consent to changing the name of the plaintiff in the 1985 proceedings to Berno Bros Pty Ltd. 3. The plaintiff by its director, Ermenegildo Berno, believed that it was an implied term of the contract of carriage that the defendant would "ensure" the goods whilst in transit. The defendant's solicitors informed the plaintiff's former solicitors by letter dated 11 May 1985 that the defendant told the plaintiff that the goods would not be insured. The plaintiff was not told of the contents of the letter of 11 May 1985 until 4 November 1991. 4. In August 1990 the plaintiff was informed by his legal advisers that the contract sued upon was in fact between the plaintiff and the defendant and not between Ermenegildo Berno and the defendant. 8. The plaintiff also raised questions of waiver and estoppel in pars17,18 and 19 of the Points of Claim. However these paragraphs were not relied upon and were deleted at the hearing. 9. At the hearing, the plaintiff added a further ground, namely, that shortly after 1 February 1991, Ermenegildo Berno was told by his solicitor, Mr De Silva, that this Court had refused the application to substitute the plaintiff for "Jack Berno" in the 1985 action. No objection was taken to this course by the defendant. 10. The defendant, by its Points of Defence, did not admit that Mr Berno was informed for the first time of the matters referred to above at the times alleged, and denied that those matters were "facts material to the plaintiff's case." 11. The plaintiff did not pursue the "facts" alleged in paragraphs 3 and 4 above as justifying an extension of time and the "facts" referred to in paragraphs 1 and 2 were recast, without objection, into the following form:

1. On 10 August 1990 Ermenegildo Berno ascertained for the first time that the 1985 action was commenced in the wrong name.
2. On 10 August 1990 Ermenegildo Berno ascertained for the first time that an amendment was required to the plaintiff's name in the 1985 action.
3. At the hearing, the plaintiff called Mr Berno, Mr D Masters (a solicitor) and a Mr De Silva (also a solicitor) to give evidence. The defendant called no evidence, but tendered parts of affidavits sworn by Messrs Berno and De Silva.
4. I make the following findings of fact. Mr Berno is of Italian birth. His education is limited to five years' schooling in Italy. He migrated to Australia in 1954 when he was seventeen years of age. He moved to Darwin in
5. He has lived here ever since. He does not use his first name. He is known as "Jack" or "Joe." He is a director of the plaintiff, the other directors being his brothers. His English is still poor, and he speaks with a heavy accent which makes it difficult for him to be properly understood. He manages the company, and he personally entered into the contract with the defendant on behalf of the plaintiff. The plaintiff has been in business for many years.
6. He first instructed Mr Masters, then with the firm Poveys, in January 1985, in relation to recovering this loss. Mr Masters first met Mr Berno in late 1984 and knew him as Jack Berno. Mr Berno knew that the damaged goods belonged to the plaintiff. He handed to Mr Masters a copy of a memorandum of the agreement made between the parties, and signed by Mr Berno, which had been prepared by a secretary employed by the defendant. The memorandum (which is annexure "A" to Mr Berno's affidavit sworn 17/10/90 and filed in the 1985 action) refers to an agreement between "Berno Bros" and "Greens Steel Constructions" and is typed on the letterhead of the defendant.
7. No explanation was given as to why the 1985 action was commenced in the name of Joe Berno. Mr Masters never told Mr Berno that the action was so commenced.
8. In about mid 1987, Mr Berno saw another solicitor, Miss D Elliot, at Poveys, who was then in charge of the 1985 action. All he could recall about that meeting was asking Miss Elliot if the action was ready for trial.
9. By letter dated 11 October 1989, Miss Elliot wrote to the defendant's solicitors advising of her intention to amend the Writ by "correcting the name of the plaintiff from Joe Berno to Berno Bros Pty Limited." I accept Mr Berno's evidence that he was not aware of the existence of that letter, and was not told by Miss Elliot that she intended to make that application.
10. At some stage, the 1985 action was taken over by Miss H Corderoy, another solicitor then employed by Poveys.
11. In 1989, Mr De Silva, who was then an articled clerk employed by Poveys, on the instructions of Miss Elliot, drafted interrogatories for the examination of the defendant in the 1985 action. The interrogatories, and the answers thereto, both describe the plaintiff as Berno Bros Pty Limited. Mr De Silva was unable to recall if he was then aware that those interrogatories were prepared in that manner. In about March 1990, he took over the file from Miss Corderoy who said something to him about the need for a change in the name of the plaintiff. On several occasions between 2 May 1990 and 12 September 1990, Mr De Silva spoke to the defendant's solicitor who told him that the defendant would consent to the name change.
12. In August 1990, Mr De Silva decided to inform Mr Berno about the proposed name change. He said that his reason for this was that he was not sure if Mr Berno was aware of the problem. He spoke to Mr Berno on 10 August 1990, and the same day, made a note of their conversation from which he refreshed his memory before giving evidence. He said that he asked Mr Berno if he had contracted on behalf of himself or on behalf of the company and that he told Mr Berno that he would probably be applying to change the name of the plaintiff in the action to that of the company. He was unable to recall if he explained why this was necessary to Mr Berno.
13. Mr Berno said that in August 1990 he saw Mr De Silva in his solicitor's office. Mr De Silva explained to him that it was necessary to change the name of the plaintiff to the company's name, and he said to Mr De Silva, "If you have to change the name, do so."
14. Mr De Silva said, in cross-examination, that he did not believe the plaintiff's solicitors had received any instructions from the plaintiff to change the name to that of the company prior to then.
15. I find that, at all times Mr Berno believed that the contract was entered into between the plaintiff company and the defendant, and that therefore it is probable that he expected that proceedings would have been issued in the name of the company. I further find that he was not told otherwise until 10 August 1990, when he discovered, for the first time, that those proceedings had not been issued in the name of the company, and that it would be necessary to change the name of the plaintiff in those proceedings to that of the plaintiff company. I further find that Mr Berno was not informed that the application to this Court to change the name was refused until shortly after 1 February

I therefore find that the factual basis upon which the plaintiff relies in support of this application (in the form in which it was ultimately cast) is proved. 24. Each of these facts relied upon occurred within twelve months of the issue of the Writ herein, but after the limitation period had expired. Thus the Court has jurisdiction to extend the limitation period if satisfied that any of these matters are "facts material to the plaintiff's case" within the meaning of s44(3)(b) of the Limitation Act. I was referred to a number of authorities as to what this expression means. Firstly, it is now well-established that there need be no interaction between a fact and the decision to sue, for it to be a 'material' fact: Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628; Fersch v Power and Water Authority [1990] NTSC 30; (1990) 101 FLR 78. Even a fact which does have a causal connection with the decision to sue, might not, it seems to me, be necessarily a material fact. Thus, in this case, although the decision to bring the present action can be seen to be directly causally connected to the decision of the court not to permit the plaintiff's application to substitute the plaintiff for "Joe Berno" in the 1985 action, and from Mr Berno's learning of that decision in February 1991, the question still remains as to whether that is a material fact. The concept of what is a 'material fact' was described by the High Court in Sola Optical, supra, at 636-7 as follows: "A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word 'material' inter alia, to mean 'Of such significance as to be likely to influence the determination of a cause.' Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to 'facts material to the plaintiff's case.'" 25. In Fersch, Asche CJ said (at 82): "In Lovett v Le Gall which was approved by the High Court in the Sola Optical case, Bray CJ at 482 observed that the phrase 'facts material to the plaintiff's case were not ascertained by him' took in 'the whole complex of evidence and argument which will be advanced at the trial on his behalf ...'" 26. And later at 83 his Honour said: "Maurice J in Braedon v Hynes (1986) NTJ 883 at 893 considered that Lovett v Le Gall, which he followed, was authority for saying that, by the concept of 'the appellant's case', the words in the subsection 'comprehended not merely the facts essential to formulating the cause of action in the

form of a statement of claim, but the whole complex of evidence, law and argument to be relied on in court by the party concerned.'" 27. The plaintiff submitted that the facts were material because, until those facts were ascertained, the plaintiff thought it had an action on foot, when in fact it did not. I accept that the fact that the contract was entered into between the plaintiff and the defendant, and that the goods belonged to the plaintiff are "material facts." However, I am unable to see how the fact that the plaintiff thought it had an action on foot in its own name, when it did not, is a 'material fact.' It would not be necessary for the plaintiff in this action to even refer at trial to any of the alleged material facts, whether in evidence or submissions. None of these matters are of any relevance whatsoever to its case. Mr Ford, counsel for the plaintiff, sought to draw an analogy between this case and the facts found to be material in Braedon v Hynes when Maurice J held that the identity of the defendant was a material fact. I have no doubt that Maurice J was perfectly right, and, as I have said before, I have no doubt that if the company did not know it had been the contracting party with the defendant until August 1990, that would have been a material fact as well. However, Mr Berno was well aware at all times that the plaintiff company was the contracting party. What he did not know was that his former solicitors had brought the proceedings in the name of Joe Berno instead of the company. That is not a fact material to the company's case in this action. 28. Accordingly, the plaintiff's application for an extension of time is refused with costs, and I will hear the parties as to what other orders, if any, are required as a consequence.