Did Power Exist to Add Ms Antoun or the Claimant as a Party?
51 One related group of the Claimant's submissions is that the Judicial Registrar's orders made on 18 August 2006 are vitiated because Ms Antoun was dead at the time they were made, no grant of probate had issued, and the making of the orders had the effect of depriving the Claimant of the opportunity to argue actual prejudice in an application for extension of time under the Limitation Act. In my view, it is not necessary to decide the first two of those matters. That is because the hearing of the two Notices of Motion on 2 February 2007 gave the Claimant the opportunity to put forward all evidence and argument relating to why the Claimant ought not be made a second defendant in the proceedings pursuant to section 65 Civil Procedure Act. The substantial effect of the order that the Judicial Registrar made on 2 February 2007 on the first Notice of Motion was that, regardless of the validity or legal propriety of the orders that had been made on 18 August 2006, the Claimant should be added as a second defendant in the proceedings.
52 The third matter has no substance. As I have explained earlier, if the three-year post discoverability limitation period had expired, there was no opportunity lost to argue actual prejudice in an application for extension of time, because there could not be any extension of time.
53 In the present case, the Judicial Registrar relied on section 65 as the basis of the orders that are appealed against. Two separate questions arise concerning the correctness of her having done so. The first is whether the amendment is one "to correct a mistake in the name of a party to the proceedings", within the meaning of section 65(2)(b). The second is whether the type of order actually made - whereby instead of Mr Jamiel Antoun being the only defendant, the Claimant and Mr Jamiel Antoun are both defendants - is a type of amendment that section 65(2)(b) permits.
54 Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 concerned a shipment of goods that were damaged in transit. The owner of the damaged goods sued the shipowner in connection with that damage, not knowing that the ship had been let on a bareboat charter. The effect of the charter was that it was not the owner but the charterer that employed the ship's crew and had issued the bill of lading. After expiry of a limitation period, the shipper sought to amend the initiating process under the Victorian equivalent of section 65(2)(b) to substitute the name of the charterer for the name of the owner. The rule in question in Bridge Shipping, rule 36.01 of the Supreme Court Rules (Vic), provided:
"(1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
(2) In this Order document' includes originating process, an indorsement of claim on originating process and a pleading. ... (4) A mistake in the name of a party may be corrected under paragraph (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 expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (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 paragraph (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."
55 McHugh J (with whom Brennan and Deane JJ agreed) said, (at 259-261):
"The concluding words of sub-r. (4) "whether or not the effect is to
substitute another person as a party" enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake "in the name of a party" because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake "in the name of a party" because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X." The sub-rule applies equally to the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X." In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.
Rule 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 NSW Ltd (1932) 47 CLR 113, at p 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."
56 Even though McHugh J in this passage talks of "substituting" one person for another person as a party to the action, that was because the particular case with which the Court was then concerned involved what was clearly a substitution of one entity for another.
57 In the result, the application in Bridge Shipping failed. It failed because Bridge Shipping had at all times intended to sue the owner of the vessel. Its mistake did not concern the name of the entity that was the owner of the vessel. Rather, its mistake was in thinking that the owner of the vessel, rather than the charterer, was the carrier of the goods.
58 The principles stated in Bridge Shipping have been applied in this Court to the construction of Part 20 rule 4 Supreme Court Rules and to the corresponding provisions in the former District Court Rules 1973: eg, Archbishop of Perth v "AA" to "JC" inclusive (1995) 18 ACSR 333 at 349 per Cole JA (with whom Meagher JA agreed); Maamary v Pepsico Australia Pty Ltd [2001] NSWCA 375 at [51] ff per Giles JA (with whom Mason P and Studdert J agreed). In my view they should also be applied to the construction of section 65(2)(b).
59 In Greentree v G D Searle and Company (Supreme Court of NSW, 31 July 1992, unreported) McInerney J considered a situation where various plaintiffs in a class action sought damages arising from their use of a defective product. The proceedings had been commenced against an entity described as "G D Searle and Company". Those proceedings were begun in the belief that G D Searle and Company had manufactured, designed and marketed the product. No such entity as "G D Searle and Company" existed. Rather, there was an entity called "G D Searle and Co". Further, G D Searle and Co had carried on the business relating to the product during only part of the time to which the claim related, up to May 1978. From May 1978 until January 1986 another entity, SCI Corp, carried on the business. In January 1986 G D Searle and Co was renamed the Nutrasweet Company, and another entity, that had been incorporated in 1985, adopted the name G D Searle and Co, and, it was alleged, carried on the business thereafter. Application was made under Part 20 rule 4 Supreme Court Rules to substitute the Nutrasweet Company, SCI Corp, and G D Searle and Co for G D Searle and Company. Part 20, rule 4 then provided:
"(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.
…
(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party."
60 McInerney J held that there had been a mistake in the name of a party, in the sense explained in Bridge Shipping. This was, in substance, because the plaintiffs had intended to sue the entity that had manufactured, designed and marketed the product, and mistakenly believed that G D Searle and Company had manufactured, designed and marketed the product at all relevant times.
61 McInerney J then considered whether the rule enabled the names of three defendants to be substituted for the name of one defendant. He said (at 14):
"… the entity intended to be sued is that entity with the properties described in the statement of claim. What has appeared … is that, on the information supplied by the defendants, there is more than one entity that has such properties."
62 In response to an argument that what was being done was adding parties rather than substituting parties, McInerney J said (at 15):
"I cannot accept, in principle, that it becomes clear that if more than one party shares certain properties, then in those circumstances, if there has been a mistake in the naming of the party, that it is not possible under this rule to substitute more than one party. The Rule of construction is that the singular form includes the plural (see s 8(b) of the Interpretation Act 1986 ). I cannot accept this is adding of parties. Adding of parties normally includes the leaving of the original party in the action. In this case this is clearly a substitution of three parties for one party …".
63 The reference to "s 8(b) of the Interpretation Act 1986" is clearly intended to be a reference to s 8(b) Interpretation Act 1987, which provides "in any act or instrument … a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form."
64 Another decision in which multiple parties replaced a single party is the decision of this Court in McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660. There, the court considered Part 10 Land and Environment Court Rules 1980, rules 1 and 2 of which substantially reproduced rules 1 and 2 of Part 20 Supreme Court Rules. Various members of an Environmental Preservation Society had objected to the Shire Council concerning a proposed development. After the council granted a development consent, various members of the Society, including Mr McInnes, wished to appeal to the Land and Environment Court against that decision. In the belief that an objection had been lodged by the Society, proceedings were begun in the name of Mr McInnes, expressed to be on behalf of the Society. In fact, neither Mr McInnes, nor the Society itself, had lodged any objection. Only objectors had the standing to appeal. The developer sought dismissal of the appeal on the ground that Mr McInnes lacked standing. Mr McInnes then sought to amend the proceedings by substituting a Mr and Mrs Clarke, members of the Society who had lodged an objection, as appellants. The Court held that there had been the type of mistake that attracted the analogue of section 65, and allowed the amendment. Priestley JA, with whom Kirby P and Clarke JA agreed, held (at 669):
"… the court in my opinion had power to substitute Mr and Mrs Clarke for Mr McInnes as the applicants in the appeal."
65 It does not appear from the report that any argument was put that there was no power to substitute two appellants for one appellant, but, even so, the decision of the Court clearly assumed that that power existed.
66 In Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 the Queensland Court of Appeal considered Order 32 r 1 of the Rules of the Supreme Court (Qld). It provided:
"(1) The Court or a Judge may, in any cause or matter, at any stage of the proceedings, allow or direct either party to alter or amend the writ of summons, or any indorsement thereon, or any pleadings or other proceedings, in such manner and on such terms as may be just.
(2) Where an application to the Court or a Judge 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 the issue of the writ has expired, the Court or a Judge may nevertheless grant such leave in the circumstances mentioned in that paragraph if the Court or a Judge 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 or a Judge 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."
67 Another provision expressly permitted an order to be made under O.32 r.1(3) after a relevant period of limitation had expired. A Mr Hayward had begun an action alleging that his helicopter had been damaged as a result of being negligently repaired by the defendant. After the limitation period had expired, it was realised that a company associated with Mr Hayward was the owner of the helicopter, and an application was made to join that company as a plaintiff, on the basis that it had always been intended that the owner of the helicopter would sue. For reasons not clear from the report, Mr Hayward wished to remain a plaintiff. It is not clear from the report what rights he wanted to assert, or how he had any such rights even though he was not the owner of the aircraft, or how the rights he wanted to assert related to the causes of action that had been originally alleged. What is clear is that the application failed. Pincus JA and Ambrose J said (at 158):
"It is our opinion that, whatever else O.32 r.1(3) does, it does not authorise the joinder of a party additional to that whose name is sought to be corrected."
68 Even though there is a fairly close textual similarity between O.32 r.1 of the Queensland rules and sections 64(1), 65(1), and 65(2)(b) Civil Procedure Act, I do not regard Hayward as decisive of the present case. When the report is silent about the various matters I have mentioned, I find it hard to understand the precise basis for the decision.
69 In my view, if it was clear that a plaintiff intended to sue the owner of a particular piece of property, and sued A in the belief that A was the owner of the property, but in fact the owners were A and B, there is no reason why an amendment to add B could not count as an amendment "so as to correct a mistake in the name of a party to the proceedings". If the plaintiffs in Greentree had initially sued G D Searle and Co (instead of G D Searle and Company) in the belief that it had manufactured, designed and marketed the product through the whole of the time with which the litigation was concerned, I see no reason why it would not have been possible, under a provision like section 65(2)(b), to make an order that had the effect that Nutrasweet Co, SCI Corp, and G D Searle and Co were thenceforth named as defendants. As I have earlier stated, the words "whether or not the effect of the amendment is to substitute a new party" do not limit the width of the power under section 65(2)(b).
70 The principle that Pincus JA and Ambrose J stated in Hayward (quoted at para [67] above) is ambiguous. Its meaning changes depending on what one takes to be the party "whose name is sought to be corrected". One possible reading is that the "party whose name is sought to be corrected" is identified by a person's name. On that reading, if the principle were correct, in the first example I considered in para [69] A and B could not become the defendants in the action. In the second example I considered in para [69] it would not be possible to make an order that had the effect that Nutrasweet Co, SCI Corp and G D Searle and Co were thenceforth named as defendants. Those results would involve, in my view, not acting in accordance with the decision of McHugh J in Bridge Shipping, that a provision like section 65(2)(b) should be given "the widest interpretation which its language will permit". As well, that reading of the principle articulated by Pincus JA and Ambrose J places a gloss upon the wording of a provision like section 65(2)(b) that is not to be found in its language. I have explained, at paras [33]-[35] above, what in my view is involved in the application of section 65(2)(b). Enquiring whether an order will result in the joinder of a party additional to a person whose name has previously appeared in the originating process is simply not part of the task that is performed when section 65(2)(b) is applied. In my view, if the principle stated by Pincus JA and Ambrose J is read so that the "party whose name is sought to be corrected" is identified by a person's name, then that principle is mistaken.
71 However, if the "party whose name is sought to be corrected" is identified by the attributes that the party has, the principle is unexceptionable. In the first example I considered at para [69], the party whose name is sought to be corrected is the owner of the property, and adding B as a defendant is simply adding the name of someone so that the owner of the property is correctly identified. Adding B in that way is not joining a party additional to the party whose name is sought to be corrected. Similarly, in the second example I considered at para [69], the amendment to name Nutrasweet Co, SCI Corp and G D Searle and Co as the defendants effectively corrects the name of a party so that the entity that manufactured, designed and marketed the product is now a party, and no additional party is joined.
72 In Sullivan v Van der Broek [1999] NSWSC 1177 Windeyer J considered an application brought by a person who had been injured while participating in an event organised by a voluntary unincorporated association, the Nambucca Valley Galah Day Association. The plaintiff sued five people who she thought were members of the organising committee of the association who had the care control and management of the event. Some of the people named as defendants denied they were members of the committee. The plaintiff then applied under Part 20, rule 4 Supreme Court Rules to substitute for the five defendants originally named new defendants consisting of the original five defendants, and four more defendants. That application was brought at a time when the limitation period had expired.
73 Windeyer J accepted (at [8]) that the mistake the plaintiff had made "was that all individual members who met that description were not included as defendants in these proceedings." He adopted McInerney J's interpretation of Part 20, rule 4(3) in Greentree and said (at [8]):
"The rule contemplates the substitution of more than one party if they answer a particular description."
74 Windeyer J held, however, that the mistake that had been made by the plaintiff was not a mistake "in the name of a party", even within the broad reading of that expression laid down by McHugh J in Bridge Shipping. The Statement of Claim did not allege that the original five defendants were the only members of the committee or "the members of the committee", merely that they were "members of the committee". The plaintiff was still claiming that the original five defendants were members of the relevant committee. Thus, Windeyer J held that there had been no mistake of the type that the rule was concerned with.
75 Windeyer J noted (at [9]) the remark of McInerney J in Greentree that "adding of parties normally includes the leaving of the original party in the action. In this case this is clearly a substitution of three parties for one party", and observed that McInerney J's remark accorded with the decision of the Queensland Court of Appeal in Hayward. However, that observation of Windeyer J was obiter. His decision did not depend upon following or accepting Hayward, but (correctly, with respect) upon deciding whether the particular mistake that had been made counted as a "mistake in the name of a party".
76 In Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579 Young CJ in Eq considered an application under sections 64 and 65 Civil Procedure Act. The action in question had been brought by a company in liquidation, seeking recovery of a preference or uncommercial transaction pursuant to section 588FF Corporations Act 2001. Such an action can only be brought by the liquidator, not by the company in liquidation. By the time this error was realised, the three-year limitation period from the relation-back day, arising under section 588FF(3) Corporations Act, had expired. The action that named the company as plaintiff had been commenced in time. The solicitor who had drafted the originating process gave evidence that he had been of the view that the company was the appropriate plaintiff, and that he had quite deliberately decided to commence proceedings in the name of the company.
77 Young CJ in Eq dismissed the application. I respectfully agree with that outcome. There had been no mistake in the name of a party, merely a mistake concerning a matter of law about whether an action to recover a preference or uncommercial transaction should be brought by the company in liquidation or by the liquidator. However, in the course of reaching that decision, his Honour said (at [39]):
"The section does not authorise an additional party to be added, as opposed to substituting one alleged party for another: Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 and Sullivan v Van der Broek [1999] NSWSC 1177 (a decision of Windeyer J)."
78 I respectfully disagree with this reading of section 65(2)(b). I doubt that a rigid dichotomy can be drawn between adding an additional party, and substituting one alleged party for another. If it mattered, I see no violence to language in saying that litigation started out with A as the defendant, but then A and B were substituted as the defendant. More importantly, the scope of the power in section 65(2)(b) does not depend upon whether or not the amendment is one that "substitutes" a new party. As earlier explained, I would not follow the first possible reading of the principle in Hayward, and in my view Sullivan v Van der Broek did not have as its ratio that there was never any power under Part 20, rule 4 for an additional party to be added, as opposed to substituting one alleged party for another.
79 Some support for the view at which I have arrived can be derived from the decision of the Court of Appeal for England and Wales delivered on 9 July 2007 in Adelson v Associated Newspapers Limited [2007] EWCA Civ 701. While that case was most directly concerned with the present English Civil Procedure Rules 1998 (UK) - the drafting of which differs in some respects from section 65 Civil Procedure Act and the former Part 20 Rule 4 Supreme Court Rules - it gave detailed consideration to the former English Order 20 r 5, on which those New South Wales provisions had been based. Lord Phillips CJ, delivering the judgment of the Court, said (at [31] and [32]):
"31. The rule presupposes that there is a person intending to sue. The mistake envisaged in relation to the name of the claimant is one under which the name used for the claimant is not the name of the person wishing to sue. Such a mistake is likely to be made by an agent of the person intending to sue. Where the claimant is a company the mistake will always be that of an agent, but identifying the person intending to sue may create difficulties.
32. The rule also envisages that there will be a person intended to be sued. The mistake envisaged in relation to the defendant will be one under which the name used for the defendant is not the appropriate name to describe the person that the claimant intends to sue. Thus the rule envisages a defendant identified by the claimant but described by a name which is not correct."
80 His Lordship identified (at [38]) the test that had been stated in The Al Tawwab [1991] 1 Lloyd's Rep 201 for the application of the English rule. That test, as expressed by Lloyd LJ in The Al Tawwab at 207, permitted an amendment to correct the name of a party if:
"… 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."
81 Because one of the ships that was involved in The Al Tawwab was called the 'Sardinia Sulcis', that test has become known as "the test in the 'Sardinia Sulcis'."
82 His Lordship summarised the principles that applied to the English O 20 r 5 (at [43]):
"43i) The mistake must be as to the name of the party in question and not as to the identity of that party. Such a mistake can be demonstrated where the pleading gives a description of the party that identifies the party, but gives the party the wrong name. In such circumstances a 'mistake as to name' is given a generous interpretation.
ii) The mistake will be made by the person who issues the process bearing the wrong name. The person intending to sue will be the person who, or whose agent, has authorised the person issuing the process to start proceedings on his behalf.
iii) The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used.
iv) Most if not all the cases seem to have proceeded on the basis that the effect of the amendment was to substitute a new party for the party named."
83 His Lordship accepted (at [56]) that the Sardinia Sulcis test had a continuing role in interpretation of the current English rules. He noted (at [57]) that:
"… the Sardinia Sulcis test could be satisfied where the correct defendant was unaware of the claim until the limitation period had expired. …[I]n such a case, the Court will be likely to exercise its discretion against giving permission to make the amendment."
84 The factual situation under consideration in Adelson was one where an action had been begun in the name of a corporation that was the Second Claimant, alleging that it traded in a particular industry and manner, and that the conduct of the defendant had damaged its trade. In fact, the Second Claimant was a holding company, and the trading business was carried on by two of its subsidiaries. The application in question was to join those subsidiaries as Third and Fourth Claimants. Counsel for the Claimants described the order sought as one for "partial substitution". The Court of Appeal upheld the primary judge's decision that the joinder should be refused, for reasons to do with the particular mistake that had been made and the particular causes of action that were alleged. However, in the course of so deciding, Lord Phillips CJ said (at [65]-[66]):
"65 If the particulars of the activities of the three corporate Claimants that the Claimants seek to add by amendment had been pleaded as relating to the Second Claimant alone in the original pleading, it would have strengthened the Claimants' case that they were indeed seeking partial substitution. In any event, however, if one asks the question whether the claims that the Third and Fourth Claimants seek to advance are the same as the claims that the Second Claimant would have been able to advance had it carried on the activities of the Third and Fourth Claimants itself, rather than through subsidiaries, we are inclined to think that the answer is 'yes'. If a company runs a number of businesses in different parts of the world and the company is defamed, the damage is likely to depend upon the extent to which the reputation of the individual businesses is harmed. It does not seem to us that it should affect the overall damage, or the overall damages, if each individual business is carried on by a subsidiary and claims are brought by all the companies in the group.
66 For these reasons we are not convinced that it is impossible to treat this as a case of substitution, merely because the proposed amendments result in three corporate claims rather than one, albeit that to permit addition of parties in such circumstances pursuant to CPR 19.5(3) would certainly break new ground."
85 All of the remarks I have quoted from Adelson seem to me to be applicable to section 65(2)(b) Civil Procedure Act. In saying that, I make clear that I do not see any difference of substance between the Sardinia Sulcis test and the principles laid down by McHugh J in Bridge Shipping.