the deceased; or (b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding." 3. Lest it be bruited abroad as scandalum magnatum, that the Court is so far forgetful of its duty of impartiality as to undertake the representation of one party in a contest, it is necessary to point out that the words of R.16.03(1)(a) mean no more than that, in the absence of a person to represent the estate of the deceased, the Court may proceed without such representative being appointed. 4. R.16.03(2) then provides:- "(2) An order under sub-rule (1) and a judgment or order subsequently given or made in the proceeding, binds the estate of the deceased person as it would had a personal representative of the deceased been a party." 5. I will therefore treat the Summons, or, rather, such of it as is still before me, as seeking an order that the estate of the deceased be named as a party, and, if that is granted, that the Court then give leave to proceed without the necessity of a personal representative of the deceased being appointed. 6. In seeking these orders, however, the plaintiff faces a number of difficulties which can only be appreciated by setting out the rather complicated history of the proceedings to date. 7. On 21 April 1980 the plaintiff was a passenger in a car driven by Peter Tyrone Crocker which collided with a truck driven by Fernando Collicco on the Arnhem Highway. As a result of the collision Peter Tyrone Crocker (whom I shall refer to as "the deceased") was killed, and the plaintiff suffered injuries. At that time the period of limitation for bringing an action founded on tort was 6 years, pursuant to the South Australian Limitation of Suits and Actions Act 1866, which then applied in the Northern Territory. This Act ceased to apply in the Northern Territory when the Northern Territory Limitation Act came into force on 21 September 1981, setting a limitation period of 3 years for such matters. However, by the transitional provisions of that Act (s.9), the time for bringing proceedings in respect of a cause of action which arose prior to the commencement of the Northern Territory Act remained as under the earlier Act. 8. The plaintiff issued a Writ and Statement of Claim claiming damages for personal injury arising out of the collision of 21 April 1980. The Writ and Statement of Claim was issued on the very last day it could have been issued i.e., on 21 April 1986. It may have been issued in some haste, and that may explain some of the problems which subsequently occurred. 9. The plaintiff named four defendants. 10. The first defendant Measey Investments Pty Ltd is sued as the owner of the vehicle driven by the deceased. It is not pleaded that the deceased was driving as the servant or agent of the first defendant. The first defendant entered an Appearance and a Summons dated 24 June 1987 seeking to have the Statement of Claim struck out as against it. 11. For some reason that Summons was dismissed by consent by the Master on 9 July 1979. The first defendant issued a second Summons on 21 March 1989 seeking judgment against the plaintiff on the basis that the first defendant was the company which had hired out the vehicle to the deceased in the course of its business as a car hire company. It claimed therefore that the deceased had never been the servant or agent of the defendant. The plaintiff's solicitor filed an affidavit in reply alleging (presumably on instructions though that does not appear) that at the time of the accident the vehicle was being driven with the knowledge and consent of the first defendant; and submitting therefore that the question of agency was a matter to be determined at the trial. Presumably the Master acceded to this argument and the Summons was dismissed by the Master on 28 April 1989. So the first defendant remains a party. 12. The second defendant named was the Territory Insurance Office. On the same day as the Writ was issued (21 April 1986), and before it was issued on that day, the plaintiff's solicitors obtained ex parte from the Master an Order in these terms:- "That the Territory Insurance Office be appointed to represent the estate of Peter Tyrone Crocker deceased for all of the purposes of an action by Joseph Patrick Creedon against the Estate of the said Peter Tyrone Crocker in respect of injuries

sustained by Joseph Patrick Creedon in a motor vehicle accident which occurred on the 21 April 1986 on the Arnhem Highway in the Northern Territory of Australia 60.5 kilometres east of the South Alligator River." 13. On 6 June 1986 T.I.O. entered a conditional appearance and on 17 June 1986 T.I.O. applied by Summons that the Master's Order be set aside. On 16 March 1987 Kearney J. so ordered. In his reasons for decision His Honour observed that T.I.O. had not given its consent to the Order appointing it as legal representative of the deceased; and for this reason, inter alia, His Honour set aside the Master's Order. T.I.O. therefore ceased to be a representative of the deceased's estate, but it took no action to have itself removed as a party. 14. On 13 November 1989 the plaintiff issued the Summons of which paragraphs 1 and 2 are now before me. The other paragraphs were dealt with by the Master and they sought the following: 3. In the alternative (to paragraphs 1 and 2 which I have already set out), the Public Trustee of Tasmania be named as the second defendant in these proceedings representing the said Peter Tyrone Crocker, deceased. 4. The Writ of Summons herein be amended in accordance with the Order or Orders named above. 5. The said Writ of Summons be renewed and the plaintiff have leave (if necessary) to serve the Writ of Summons on the personal representative of Peter Tyrone Crocker deceased. 6. The costs of this application be costs in the cause. 15. The basis for the application that the Public Trustee of Tasmania be named as second defendant was that it had been ascertained that the Public Trustee of Tasmania was the executor of the will of the deceased and had obtained a grant of Probate in the Supreme Court of Tasmania on 23 September 1980. 16. On 16 November 1989 the Master made the following orders on the Summons of 13 November 1989:- 1. The Public Trustee of Tasmania be substituted as second defendant in the proceedings representing the estate of Peter Tyrone Crocker. 2. The Writ of Summons and other documents filed in the proceedings be amended so as to comply with Order 1. 3. The plaintiff have leave to amend the Writ of Summons to include endorsements necessary for interstate service in accordance with the Rules. 4. The Writ of Summons be renewed for 3 months from the date of this Order. 5. The costs of and incidental to this application be costs in the proceeding. 17. The Public Trustee of Tasmania was served and entered a conditional appearance on 6 December 1989; and by Summons filed 12 February 1990 sought that the Master's orders of 16 November 1989 be set aside and that service of the Writ be set aside. On behalf of the Public Trustee of Tasmania an affidavit was filed acknowledging that Probate of the deceased's will had been granted to it on 23 September 1980; but stating that the Public Trustee of Tasmania had never applied to the Supreme Court of the Northern Territory for Probate of the Will, nor had the Tasmanian grant of probate ever been resealed in the Northern Territory; and stating further that there were no assets of the deceased in the Northern Territory. 18. That Summons came before Kearney J. on 19 March 1990 and the following orders were made:- 1. That the order of the Master made 16 November 1989 be set aside. 2. That the plaintiff pay the costs of the Public Trustee of Tasmania of and incidental to this Application.

3. That the plaintiff's Summons of 13 November 1989 be adjourned to the next ordinary Judge's Chambers list for mention.
4. As I interpret that Order, its effect is to cause the proceedings to revert to the position immediately before the Master's Order was made. Thus, T.I.O. was restored to its position as second defendant, but not as representing the estate of the deceased.
5. The third defendant is Fernando Collicco the driver of the truck. Various particulars of negligence are alleged against him in the Statement of Claim although he is wrongly described as the fourth defendant in paragraph 2. He remains a party.
6. The fourth defendant is Steelcon Constructions Pty Ltd, sued as the owner of the truck driven by the third defendant. Again, it is not alleged that the third defendant was driving as the servant or agent of the fourth defendant. The fourth defendant entered an appearance on 30 June 1987 and by Summons of 8 November 1987 sought that the plaintiff's Statement of Claim be struck out as against it as disclosing no cause of action. That Summons was dismissed by Martin J. on 21 March 1988, following a line of cases which decide that ownership of a vehicle is prima facie evidence that the driver was driving with the authority and for the purpose of the owner e.g., Jennings v Hannan (No 2) (1969) 71 SR (N.S.W.) 226: Rambarran v Gurrucharran (1970) 1 All ER
7. So the fourth defendant remains in the lists.
8. The first defendant issued a Contribution Notice against the third and fourth defendants on 31 October 1989.
9. On 26 September 1989 the third and fourth defendants issued a Summons for leave to deliver and serve on the Public Trustee of Tasmania a Third Party notice. The Master made that order on 28 September 1989 and the Third Party notice was filed on 29 September 1989. By Summons filed 15 December 1989 the Public Trustee of Tasmania sought that the Master's Order and the Third Party Notice be set aside. That Summons has been adjourned and has not yet been dealt with, no doubt awaiting the result of this application.
10. The present situation therefore seems to be this: the first, third and fourth defendants remain in the action. The second defendant remains in the action on its own account; but, since, in the Statement of Claim, it is sued as representing the deceased (paragraph 4), which it does not, it would seem that no cause of action could be made out against it. For what it is worth it may be argued that T.I.O. did represent the deceased's estate from 21 April 1986 to 16 March 1987 on the basis that an irregular order remains in force until set aside. (Chuck v Cremer (1846) 2 Ph 113: 41 ER 884: Posner v Collection for Interstate Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461, particularly at 477 per Starke J.). But no step was taken by the plaintiff during that period (c.f. Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339), nor did T.I.O., after knowledge of the irregularity, take any step, which might in T.I.O. be construed as waiver (see MacFoy v United Africa Co (1961) 2 All ER 1169 at 1173); and since the order of the Master was then set aside, I think the better view would be that once set aside it must be treated as void ab initio; on the basis that, being initially voidable at the election of T.I.O., it was avoided on that election being exercised. (c.f. Lord Denning in MacFoy v United Africa Co (supra) at p 1173; "It is good until avoided").
11. The result is that there has been no representation of the deceased's estate since the commencement of these proceedings. T.I.O. remains a party but with no connection with the deceased's estate and, one would think, a fairly strong case to be removed as a party. But no application of that nature is before me.
12. The plaintiff now seeks to proceed with the unresolved parts of its summons of 13 November 1989 i.e., effectively, paragraph 1, which seeks that the Writ of Summons be amended by naming as second defendant Peter Tyrone Crocker deceased (which I take to mean the estate of Peter Tyrone Crocker deceased).
13. Mr Robinson, whose firm took over the plaintiff's case in July 1989 does not now rely upon R.16.03. That rule relates to the situation where the deceased has no personal representative, and clearly enough the deceased did have a representative albeit a foreign one. That personal representative, however, declines to act in these proceedings presumably on the basis that it has no "presence" in the Northern Territory either by grant of Probate or by resealing of Probate. The Public Trustee of the Northern Territory declines to act on the basis that it has never been the personal representative of the deceased. T.I.O. declines to act on the basis that it has never consented to be the personal representative of the deceased. No doubt the Statute of Limitations also looms large in these decisions, and one cannot in the circumstances castigate any of these bodies as having acted unreasonably.
14. Mr Robinson now relies upon R.9.08 which provides: (1) Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased. (10) In this rule 'grant of representation' means a grant of probate or administration in the Territory or the resealing of a foreign grant in the Territory.
15. The estate has been distributed, there were no assets of the deceased in the Northern Territory so one can understand why the Public Trustee of Tasmania does not seek the resealing of the grant in the Northern Territory.
16. For the purposes of R.9.08, and relying particularly on R.9.08(10), Mr Robinson argues that no grant of representation has been made in this case, so the provisions of R.9.08(1) apply. To that extent he is correct, but he is met by the argument of Mr Reeves for the Public Trustee of Tasmania that any application to join a new party is substantially out of time and cannot be allowed. Mr Reeves' locus standi may be a little unclear, since the Public Trustee of Tasmania is not now a party to the action. But it remains a respondent to the present summons and it is still involved in the third party proceedings brought by the third and fourth defendants. In my view it has a sufficient locus standi.
17. Mr Robinson makes a number of submissions, and I propose to deal with them in the order he has put them.
18. He first submits that I should read R.36.01 together with R.9.08. Sub-rule (1) of R.36.01 reads:- "(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 proceedings be amended or that a party have leave to amend a document in the proceeding." Sub-rule (5) of R.36.01 reads:- "(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." Sub-rule (6) of R.36.01 reads:- "(6) The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under sub-rule (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."
19. Mr Robinson submits that the Court may now proceed to amend by adding or substituting parties out of time on a general discretionary basis without being concerned about limitation periods, which defences may then be taken by any defendant after being served. With respect to him, I do not think that is the way R.36.01(5) can be interpreted. That rule says just the contrary, i.e., that, if such an amendment is allowed, the relevant date, for the purposes of any limitation period goes back to the date the original proceedings commenced; so that, unless that date itself was outside the limitation period, the defence cannot be taken. See Footnote 90 to Williams "Supreme Court Civil Procedure" at p 168. However different considerations may apply to R.36.01(6).
20. But it seems clear that R.36.01(6) cannot apply to these proceedings. By R.1.07 it is expressly provided that R.36.01(6) does not apply to a pending proceeding. A "pending proceeding" is defined by R.1.01 as "a civil proceeding in the Court to which, immediately before the commencement date, the former rules applied". The commencement date of the new rules is 1 November 1987. This action was commenced on 21 April 1986 which was also the last day of the limitation period.
21. At that time the position was governed by Weldon v Neal (1887) 19 QBD 394 and a long line of cases following, which decide that, except in very peculiar circumstances, an amendment will not be allowed which sets up a cause of action which, at the time of the amendment, is barred by a statute of limitation. See, e.g., Forster v Vin Keneally [1987] NTSC 50; (1987) 48 NTR 51.
22. Mr Robinson is therefore in the difficult position of endeavouring to persuade the court that Rule 36.01, which abrogates the rule in Weldon v Neal in relation to a proceeding commenced after the date the new Rules came into operation (see Williams p 156

• footnote 34), either has some sort of retrospective effect, or that it is really unnecessary, since the law as it was before the new Rules came into effect allowed the rule in Weldon v Neal to be abrogated. I cannot think this is so, nor do I consider that the cases he cites really assist his argument. For instance, Mr Robinson relies on McGee v Yeomans (1977) 1 NSW LR 273. In that case the New South Wales Court of Appeal construed the provisions of r.4(1) and (3)-(5) of Pt. 20 of the New South Wales Supreme Court Rules 1970 as being of a more liberal character than the earlier rules and thereby displacing the settled rule of practice laid down in Weldon v Neal. Glass J.A. said at p 280:- "By providing in r.4(3)-(5) that an amendment may be authorized which allows the substitution of a new party, the suing by the plaintiff in a new capacity and the substitution of a new cause of action, the rule (in Weldon v Neal) was, in those circumstances totally destroyed. I am unable to accept that it continued, nonetheless, to operate in circumstances outside their terms with undiminished vigour. When it is further provided that the abrogation of the settled rule of practice in certain defined situations shall not in any way abridge the width of the general power to amend, there is in my view an implication that other amendments might in the exercise of discretion be properly allowed in situations not expressly dealt with by the rule, notwithstanding that they introduce causes of action then barred by the expiry of a period of limitation."

37. Obviously therefore the Court of Appeal was applying the more liberal approach it felt entitled to apply under what were then new amendments to the New South Wales rules. No amendments of a like effect were then in force in the Northern Territory.
38. More importantly, the abrogation of the rule in Weldon v Neal, which was achieved by s.48A of the Northern Territory Limitation Act (introduced by s.20 of the Supreme Court (Rules of Procedure) Act 1987, "does not apply to an amendment in a proceeding commenced before the commencement of this section". (S.48A(2)).
39. Mr Robinson then cites Lloyd v Nominal Defendant (1971) QWN 23. In that case the plaintiff was a pedestrian who alleged he had been struck by a motor cycle and injured. At the time the driver of the motor cycle could not, after due inquiry and search, be found. The plaintiff therefore joined the Nominal Defendant and did so before the expiration of the limitation period. After the expiration of that period the identity of the driver of the motor cycle was discovered. The plaintiff obtained leave to join him as a defendant out of time. Application was then made to set aside the order granting leave. Stable J. refused to set aside the order. He referred to a section of the Queensland Motor Vehicles Insurance Act which provided that the court could at any stage of the proceedings order that the name of the owner of the motor vehicle concerned be added or substituted as a defendant. To that extent His Honour's decision depended on particular provisions of Queensland law and I cannot find, nor has Mr Robinson referred me to, any similar provisions in the Northern Territory law which would be applicable in this case where the identity of both drivers involved in the collision was known at all material times.
40. Stable J. also took the view in Lloyd's case that, since the Nominal Defendant had been joined earlier, the plaintiff had "enlivened his one cause of action by commencing his proceedings against the Nominal Defendant - the understudy defendant - within the statutory period".

I cannot see how these remarks apply to the present case. T.I.O. was not sued as the Nominal Defendant. Nor could it have been, since the circumstances, as pleaded, are not within anything contemplated by S.48A of the Motor Accidents (Compensation) Act. T.I.O. was sued as representing the estate of the deceased, but has ceased to be such a representative since 16 March 1987 and, for the reasons I have already given, could not be said to have been validly the representative before that time, once the original order of the Master was set aside. Hence on the present Summons there is nothing that can be "enlivened" by the joining of the deceased's estate as a party. The judgment of Stable J., as I read it, is based on the fact that the original defendant there (the Nominal Defendant) was "a kind of understudy for the actor who cannot be found", i.e., once the actor is found he can step into the shoes of his understudy. But this is clean kam from the present case, where, although T.I.O. remains a party, it is there in its own capacity, and not as an understudy for the role for which the plaintiff may now wish to substitute another actor. You can substitute Hamlet for the Prince of Denmark; but not if the Prince has never got into the Act. 42. In Re O'Neill Deceased (1949) 66 WN (N.S.W.) 194, which is also relied upon by Mr Robinson, an applicant sought, under the Testators Family Maintenance legislation, provision out of an estate. The testator had, by his Will appointed one person as executrix of a particular property owned by him, and had appointed two other executors for the remainder of his estate. The applicant took proceedings against the latter two executors but failed to join or serve the executrix. Later, and after the limitation period had expired, the applicant sought to join the executrix. Sugerman J. considered that this was no more than an irregularity in form and could be cured by amendment; since the application necessarily had to be for provision out of the whole estate. His Honour held that there was not such an analogy with the introduction of a new party or a new cause of action into a common law action as would bring the present application within the principle which precludes amendment so as to introduce a new party or a new cause of action after the Statute of Limitations has run. 43. Obviously such a case is far removed from the present case. 44. Similarly, the case of J. Robertson and Co Limited v Ferguson Transformers (1970) 44 ALJR 441 cannot, in my view, assist the plaintiff. That was a case of misnomer, the plaintiff suing one company by mistake, the companies having very similar names and the Writ and Statement of Claim having been served on a person who was the resident agent in South Australia for both companies. The two companies had a common registered office, a common Chairman of Directors and a common resident Director in South Australia and a common office in New South Wales, the place of incorporation of them both. Walsh J. in that case granted the amendment sought and remarked (at p 443):- "After consideration (of the authorities) and of the facts in this case I have come to the conclusion that in so far as a distinction between substituting a party on the one hand and correcting a misnomer on the other may be relevant in deciding whether an amendment should be allowed or refused, it is proper to treat this as a case of misnomer." 45. In the present case, however, it would be difficult indeed to argue that this was a case of misnomer. On the contrary, what seems to be sought here is the substitution of one party by a completely different one, or the adding of a completely different party to the defendants presently named. 46. Consequently, in my view, the plaintiff cannot call to aid R.36.01(4) and (5) which deal with "mistake" in the naming of a party. In my view the possible ambiguity in the word "mistake" is clarified in the Rules. Obviously if a plaintiff sues the wrong party he can be said to be mistaken. But his mistake may be as to liability or identity, and it is only to the latter that the rules refer. For the phrase used is "mistake in the name". R.36.01(4). If A sues B in the belief that B is in breach of some duty to him, and in fact that duty is not owed by B but by C then A has made a mistake; but not one that can be corrected under R.36.01(4). For A has always intended to sue B and has made no mistake in the name. It is not a misnomer; and there is no case for substitution. Substitution involves some person standing in the place of another; and there is no justification for saying that C shall stand in the place of B where B has no connection at all with the proceedings. A must either start again or, in some circumstances, particularly where there are numerous parties, A may seek to join C as a defendant. This course is neither substitution nor correction of a misnomer. It is a new action. Naturally the problem usually arises in a case where the new defendant has a defence based on the Statute of Limitations. R.36.01(4) and (5) are in my view designed to ameliorate the position when the mistake is to identity only and the defendant could have been under no real misapprehension as to who the real defendant should be. If that is the case then these rules preclude the new defendant from taking what would then be the unfair defence of the Statute of Limitations. The rules achieve this by providing that in those circumstances "the proceeding shall be taken to have commenced with respect to that person on the date the proceeding commenced". The test propounded by Menhennitt J. in Her Majesty's Attorney-General for England v Sorati ; at 94-5 (and which was adopted by the Full Court of Victoria in Hubbard Association v The Attorney-General for Victoria ; applies to plaintiffs and defendants alike. Menhennitt J. said: "The proposed plaintiff should not be substituted unless, as from the time of service of the original proceedings, the defendant in fact did or ought reasonably to have proceeded on

the basis that the actual plaintiff was in reality the plaintiff proposed to be substituted. Accordingly, for the plaintiff to justify the substitution he must establish, it appears to me, two things, first, that the name of the actual plaintiff was a misnomer or misdescription of the plaintiff proposed to be substituted and, secondly, that from the time of the service of the proceedings the defendant knew or ought reasonably to have known that this was so. ... The same basic principles are I think applicable where the application is to substitute a defendant, but the task of a plaintiff is often easier in such a case, particularly if the defendant proposed to be substituted is the person who has actually been served with the proceedings, because then that person served is likely to ask the question, 'Was it me that was meant?' ". 47. See also Davies v Elsby Brothers Ltd (1960) 3 All ER 672. 48. The distinction between mistake as to identity and mistake as to liability is clearly put by Donaldson L.J. in Evans Construction v Charrington (1983) 1 All ER 310 at 317. His Lordship was referring to the English RSC O.20 r.5 and in particular to r.5(2) and (3) "(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the

Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued ...". 49. It may be noted that the latter terms of paragraph (3) are very similar to the tests proposed by Menhennitt J. 50. Referring to these rules, Donaldson L.J. said at p 317:- "In applying RSC O.20 r.5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends on the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances." 51. The present case is not one of mere misnomer or mistake as to identify. The plaintiff's solicitors clearly intended to sue T.I.O. and intended to sue it as representative of the estate of the deceased. Whether or not T.I.O. could properly be sued in that capacity if proper procedural steps had been taken becomes irrelevant because those steps were never taken. The mistake therefore must be deemed to be a mistake as to the liability of T.I.O. either in its own right or in a representative capacity as a defendant. T.I.O. could hardly have assumed that the plaintiff really meant to sue it in some other capacity in any way relevant to the proceedings. The Public Trustee of Tasmania was a totally different entity unthought of by the plaintiff's solicitors at the time they commenced proceedings. R.36.01(4) and (5) can have no application in these circumstances. 52. R.9.06 may at first glance seem more appropriate, for it allows persons to be added as parties who ought to have been joined and whose presence is necessary to ensure all questions are effectually and completely determined and adjudicated on. (R.9.06(b)(i)). In such a case, by reason of R.9.11(3)(a), the proceeding against the new defendant commences on the amendment of the filed originating process. Mr Robinson's point here is correct that such a provision does (as it does not in R.36.01(5)) provide that a new defendant may take the defence of the Statute of Limitations. Nevertheless, Williams on Supreme Court Practice in Victoria, referring to Rules in the same terms as the Northern Territory rules states at pp 164-5:- "As a general rule the court will not allow a person to be added or substituted as a party after the expiry of any limitation period applying to the claim by or against that person. An addition or substitution of a party in that situation would defeat the defence of the defendant under the limitations statute. Where a defendant is added or substituted, the proceeding is taken to have commenced against that defendant when the originating process filed is amended to show the addition or substitution: r.9.11(3)(a). There is no corresponding provision in the case of a change of plaintiff but by analogy the court would treat the proceeding (so far as it relates to the new plaintiff) as having commenced on the day the originating process is amended in accordance with r.9.11(1). As noted already, under r.36.01, the court may allow a plaintiff to amend the proceeding to introduce a new cause of action notwithstanding that time under

the relevant limitation statute has expired provided that the defendant is not prejudiced in the conduct of his defence in a way that cannot be fairly met by an adjournment, an award of costs or otherwise. However, there is no equivalent rule where the change sought by the plaintiff after the expiry of time is not to raise a new cause of action but to add or substitute a person as party. Under r 9.06 the grant or refusal of leave to alter the parties to a proceeding is in the discretion of the court. Nonetheless, it was a settled rule of practice in the court immediately prior to the commencement of the new Rules that leave would be refused once time had expired, and in the absence of anything in the Rules to the contrary, that practice should continue. Thus, for instance, if the defendant in a negligence claim has joined a third party, the plaintiff will not normally be given leave to add the third party as defendant after the expiry of the limitation period applying to a claim by the plaintiff against the third party, notwithstanding that the third party is already a party, and so might not be able to fairly claim prejudice in the conduct of his defence to the plaintiff's claim. The absence of prejudice is irrelevant. It is one thing to allow a plaintiff to plead against an existing defendant a statute-barred claim that arises out of the transaction the subject of the original claim against the defendant. It is quite another to allow a plaintiff to raise a statute-barred claim against a person who was not previously a defendant." 53. The English Courts, dealing with similar provisions (RSC O.15 r.6 and r.8(4)) have now held that there is no doctrine of "relation back" to deprive a newly joined defendant of the defence of the Statute of Limitations. Ketteman v Hansel Properties Ltd (1988) 1 All ER 38 (H.L.). Their Lordships, however, seem to have adopted the test previously propounded by Brandon L.J. (as he then was) in Liff v Beasley (1980) 1 All ER 623 at 641-3 and which he refers to as the "no useful purpose" theory. His Lordship (by then Lord Brandon) was a member of the House of Lords which decided Ketteman v Hansel Properties (supra) and referred again to this theory in the following passage at p 54:

"(Liff v Peasely) proceeded on the basis, which is not open to question, that there was an established rule of practice prohibiting the joinder by amendment of an additional defendant after the expiration of a relevant period of limitation in his favour. The question discussed in the judgments, however, was whether that rule of practice was founded on the concept of relation back (the relation back theory), in that to allow such joinder would deprive the added defendant of an accrued defence, or on the concept that to allow such joinder would serve no useful purpose (the no useful purpose theory), in that the added defendant would, if joined, have an unanswerable defence of time-bar." 54. On this basis the court's discretion would not normally be exercised to permit a defendant to be added, if such addition would serve no useful purpose since the limitation defence would inevitably be taken and inevitably succeed. There would still be exceptional cases (outside misnomer) of joinder of a defendant after the limitation period had expired, and, indeed, Ketteman v HanselProperties itself, seems to have been an exceptional case because the defendant's conduct amounted to waiver of the defence. Otherwise, however the case would seem to strengthen the view taken by Williams in the passage cited. 55. In the circumstances of this case, I would be of the opinion that no useful purpose would be served to allow the proposed joinder of the new party. It would seem inevitable that the estate of the deceased would be bound to take the defence and bound to succeed. Those representing the estate have in no sense waived the rights of the estate, or so conducted themselves that the plaintiff has been beguiled into a false position, and it would certainly not be proper for the estate to offer itself as a bridge across to an insurance company; as I suspect is the real basis of this application. 56. Mr Robinson's second argument is really based on the broad terms of R.36.01(1) but I think that has already been answered on the basis that the general words of R.36.01(1) are governed by R.36.01(6) so far as any defence of limitation is concerned; and, for the reasons already given, R36.01(6) cannot apply in this case. 57. The third argument of Mr Robinson is posited on the basis that if Weldon v Neal still applies, nevertheless the case comes within the "very peculiar circumstances" which Lord Esher M.R. allowed as constituting an exception to the rule. 58. I am not sure, however, quite how Mr Robinson puts this. If he refers only to the history of these proceedings as I have set them out I cannot see any very peculiar circumstances; unless an inability on the part of the plaintiff's then solicitors to take the correct procedures to see that the defendant's estate was properly represented can be described as such; but I very much doubt if that was what Lord Esher had in mind. 59. Possibly, however, Mr Robinson is combining his third argument with his fourth, which is that the cause of action against what he calls "this precise defendant" did not arise until the new rules came into force. By that he means that the new rules (by R 9.08(1)) allow a plaintiff to bring an action against the estate of the deceased if no grant of representation has been made. Hence, he argues, that since this "party" was not available to be sued until the commencement of the new rules (1 November 1987), therefore the action did not arise until then and the plaintiff is not therefore out of time. While there is some commendable ingenuity in this argument I cannot admit its validity. R 9.08(1) does not create a new party but merely a different way of proceeding against the same party which has always been the estate of the deceased. Prior to 1 November 1987 that was done by nominating some person to act for the estate (see Williams - paragraph 4.17), and that is what the Master did by his Order of 21 April 1986. He acted under O.19 R 50 of the old rules. The Master's Order was subsequently set aside and that meant that no person then represented the estate of the deceased. It was not a party. The fact that the new rules provided some other way of proceeding against the estate did not relieve the plaintiff from the obligation of proceeding against the estate within time. 60. This summons cannot, therefore, succeed and must be dismissed. Since the Public Trustee of Tasmania has remained on the record as a respondent to this application, and has appeared and argued matters of import to itself, I consider that the applicant should pay its costs of this application.