MIDDLETONS (formerly Coltmans Price Brent) (A Firm)

Procedure - Courts and judges generally - Courts - Rules of Court - Effect and construction - Validity of proceeding that does not comply with the Rules.

Re Pritchard [1963] 1 Ch 502; Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 71 ALJR 717; Co-operative Property Developments of Australia Ltd & Ors v Mount & Ors [1980] Tas SR 7; Louis v Bendall 137/1997; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364, referred to.

Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied.

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Amendments - Parties - Misnomer of defendant.

Supreme Court Rules 2000 (Tas), rr184, 308, 310.

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231; Western National Bank of the City of New York v Perez, Triana & Co (1891) 1 QB 304, referred to.

Judgment Number: [2007] TASSC 74

JADWAN PTY LTD v MIDDLETONS (formerly Coltmans Price Brent) (A firm)

1 Various orders are sought in relation to the party named, or to be named, as the first named defendant in these proceedings.

2 The following background to the proceedings is taken from the decision of Blow J in Jadwan Pty Ltd v Porter (No 2) [2004] TASSC 126; (2004) 13 Tas R 219 [4], [6 - 8]:

"From at least September 1996 the plaintiff was the owner and operator of a nursing home named Derwent Court Nursing Home. There was in force an approval under the National Health Act 1953 (Cth), s40AA, in respect of its operation as a nursing home. By reason of that approval, a subsidy was payable by the Commonwealth to the plaintiff in respect of the care of residents at the nursing home. Difficulties arose as to the need for the nursing home to comply with standards determined by the Minister for Health and Family Services pursuant to the National Health Act, s45D. A standards monitoring team made an adverse report to the Minister on or about 6 September 1996. A delegate of the Minister thereafter advised that he intended to make a declaration under s45E(1) that the nursing home did not satisfy the relevant standards, and that he might impose sanctions under s45E(2). The plaintiff referred the delegate's notice to a standards review panel pursuant to a provision in the National Health Regulations. On or about 2 December 1996, a review panel reported to the Minister that it had found various deficiencies in relation to the standard of care being provided at the nursing home. On 3 February 1997 a delegate of the Minister purportedly declared, pursuant to s45E(1), that the nursing home did not satisfy the relevant standards, purportedly determined under s45E(2) that benefits under the National Health Act were not payable in respect of any new patients admitted to the nursing home while that declaration remained in force, and required the plaintiff to show cause within three days why the nursing home's approval under Act should not be revoked. On 1 April 1997, a delegate of the Minister advised the plaintiff of her intention to ask the standards review panel again to review the care provided at the nursing home. On 26 May 1997, a second review panel made an adverse report to the Minister. On 20 July 1997, a delegate of the Minister notified the plaintiff of her intention to revoke the nursing home's approval under s44(2)(b). As from 24 July 1997, the residents of the nursing home were transferred to other approved nursing homes.

...

On 6 August 1997, a delegate of the Minister decided, in reliance upon the reports of the two review panels, to revoke the nursing home's approval ('the final revocation decision').

As from 1 October 1997, nursing homes were regulated under the Aged Care Act 1997 (Cth), which replaced the relevant provisions of the National Health Act. Transitional provisions were enacted in the Aged Care (Consequential Provisions) Act 1997 (Cth). That Act received the Royal assent on 7 July 1997. Under s7 of that Act, the plaintiff could have become an 'approved provider' under the Aged Care Act if (a) it was the proprietor of a nursing home approved under the National Health Act as at 30 September 1997, and (b) a Commonwealth benefit was payable to it in respect of an approved nursing home patient for nursing home care received by the patient on 30 September 1997. By 30 September 1997, all of the residents had left the nursing home, with the result that no such Commonwealth benefit was then payable to the plaintiff.

The plaintiff made an application to the Federal Court challenging the final revocation decision. It was successful. On 4 December 1998, the Full Court of the Federal Court ordered that the final revocation decision be set aside on the basis that the second review panel was not properly constituted, and that the Minister's delegate had taken into account an irrelevant consideration by relying on that panel's report. However the plaintiff's litigious victory did not result in it becoming an 'approved provider' for the purposes of the Aged Care Act because of the absence of any residents in the nursing home as at 30 September 1997."

3 In the course of the events that culminated in the plaintiff's loss of its status as an approved provider under the Aged Care Act 1997 (Cth), the solicitors who acted for the plaintiff included Coltmans Price Brent, a firm of solicitors in Melbourne. That firm was amongst those that the plaintiff blames for the loss of its status as an approved provider. John Michael Hogan was the partner at Coltmans Price Brent who acted for the plaintiff. That partnership was determined on 2 July 1999 when eight or more of its partners, including Mr Hogan, joined another legal firm in Melbourne, Middletons. In September 2002, the plaintiff engaged Riordans, yet another firm of solicitors based in Melbourne, with a view to suing those that the plaintiff blamed for its loss of its approved provider status. The subject proceeding is one of the actions handled by Riordans on behalf of the plaintiff. It was commenced on 18 July 2003. On that day a Hobart solicitor, Stephen Chopping, received an email from Craig Healey of Riordans attaching a form of writ to be issued out of the Supreme Court of Tasmania against Middletons (formerly Coltmans Price Brent) (a firm), David Porter, a barrister in Tasmania, and Piggott Wood & Baker, a firm of solicitors in Tasmania. Mr Healy was the solicitor employed by Riordans who had the carriage, care and conduct of the matter. The attachment to Mr Healy's email was as follows:

"Form 2

Rule 104

IN THE SUPREME COURT OF TASMANIA

Hobart Registry

No

BETWEEN:

JADWAN PTY LTD

Plaintiff

-and-

MIDDLETONS (formerly COLTMANS PRICE BRENT) (a firm)

Firstnamed defendant

and

DAVID PORTER

Secondnamed defendant

and

PIGGOTT WOOD & BAKER

Thirdnamed defendant

WRIT

To: Middletons

And to: David Porter

And to: Piggott Wood & Baker

ENDORSEMENT OF CLAIM

The plaintiff's claim against the defendants is for damages for the loss of the benefit of the approval of Derwent Court (of which the plaintiff was the proprietor) as a nursing home under the National Health Act 1953 (Cth), including the loss of the opportunity for the plaintiff to become an approved provider under the Aged Care Act 1997 (Cth), and for the associated loss of the nursing home business conducted by it at Derwent Court.

That loss was caused by the negligence of the first defendant in failing to take, and/or in failing to advise the plaintiff to take, any or any sufficient action in or after July 1997 to prevent the Minister for Health from removing patients from Derwent Court, from revoking the approval of Derwent Court and/or from implementing the revocation.

Further or alternatively, that loss was caused by the negligence of the second defendant in failing to advise the plaintiff to take action, and/or in failing to advise the plaintiff as to what action to take, in or after July 1997 to prevent the Minister for Health from removing patients from Derwent Court from revoking the approval of Derwent Court and/or from implementing the revocation.

Further or alternatively, that loss was caused by the negligence of the third defendant -

(a) in failing to take, and/or in failing to advise the plaintiff to take, action to challenge the validity of the notice given by the Minister for Health on 20 July 1997 of intention to revoke the approval of Derwent Court; and

(b) in failing to seek, and/or in failing to advise the plaintiff to seek, from the Federal Court in proceeding no TG 1 of 1998 or in proceeding no TG 14 of 1998 an order pursuant to s16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that the decision of the Minister for Health revoking the approval of Derwent Court be quashed or set aside with effect from the date on which that decision of the Minister was purportedly made."

4 Mr Chopping instructed an employee, Katherin Hallam, to engross and file the writ. When Ms Hallam attended the Registry with the duly completed writ, she was told that as one of the defendants, Middletons (formerly Coltmans Price Brent) (a firm), was based in Melbourne, it was necessary to file one writ naming the two defendants in Tasmania, David Porter and Piggott Wood & Baker, and a concurrent writ that included Middletons (formerly Coltmans Price Brent) (a firm), as a defendant. She was told that only one filing fee needed to be paid and that the two writs would be part of one action. She thereupon engrossed writs in accordance with that advice. Middletons (formerly Coltmans Price Brent) (a firm) was omitted from the title to the original writ but included in the title to the concurrent writ. Ms Hallam had each writ signed by Mr Chopping and she filed them. The endorsement of claim on each writ was identical, with the result that the content of the endorsement on the original writ, which only named David Porter and Piggott Wood & Baker as defendants and stated that it was to those defendants, in fact referred to three defendants. The appearance notice in that writ required that an appearance be entered within seven days following service. The appearance notice in the concurrent writ, which named all three defendants but stated that it was to Middletons (formerly Coltmans Price Brent) (a firm), required that an appearance be entered within 21 days following service.

5 The course followed was wrong. The same defendants should have been named in both the original writ and the concurrent writ. The effect of the Supreme Court Rules 2000, r104, and the Supreme Court Form Rules 2000, r3(1) and Form 2, is that a writ is required to include notice to each defendant that if that defendant wishes to defend the plaintiff's claim or take part in the action, that defendant must, within a specified number of days following service, lodge a notice of appearance. The Supreme Court Rules, r98, fixes the period for entering an appearance to a writ served within the jurisdiction at seven days after service. Rule 99(a) fixes that period at 21 days if the writ is served outside Tasmania but within Australia. Rule 102 provides:

"102 (1) If the period limited for entering an appearance is to be altered or a different period is required in respect of a different defendant or respondent, the plaintiff or applicant may have sealed as many concurrent writs or concurrent originating applications as he or she requires.

(2) A concurrent writ or concurrent originating application is to -

(a) show the same day of filing as the original process; and

(b) be in the same form as the original process except for the time limited for entering an appearance; and

(c) be in force only for the period during which the original process is in force."

6 As two of the intended defendants were in Tasmania and the other defendant was in Victoria, it would have been appropriate for the plaintiff to have issued a writ, together with a concurrent writ, both of which named all three defendants and both of which were in the same form, save that the time limited for appearing to the concurrent writ would have been different to that specified in the writ. This did not occur.

7 In naming Middletons (formerly Coltmans Price Brent) (a firm), as the first defendant in the form of writ forwarded to Mr Chopping, the intention of the plaintiff's legal advisors was to sue the partners of Middletons, or at the very least those partners of Middletons who had formerly been partners of Coltmans Price Brent. The concurrent writ was only served on one of those partners, Mr Hogan. This was because the plaintiff's legal advisors were of the mistaken belief that this was sufficient to achieve service on all the relevant partners in question. It was not. Rule 308(1) authorises the institution of proceedings against partners in the firm name under which they carried on business and the effect of r310(1) and (2) is that service on one such partner amounts to service on each member of the firm. However, these rules only apply to persons "liable, as partners and carrying on business in Tasmania", r308(1). Coltmans Price Brent and Middletons did not at any relevant time carry on business in Tasmania.

8 Following the service of the concurrent writ on Mr Hogan on 13 July 2004, Middletons filed a conditional appearance on 3 August 2004 in which it disputed the validity of the concurrent writ and reserved the right to apply to set it aside. On 16 August 2004 Middletons applied for an order that insofar as the concurrent writ concerned Middletons it be set aside as a nullity because it did not comply with r102(2)(b), or because Middletons was not a person against whom the Supreme Court Rules permitted a proceeding to be brought.

9 In response to Middletons' application, the plaintiff applied for orders: firstly, that the original writ be amended by adding Middletons (formerly Coltmans Price Brent) (a firm) as the first defendant (with the result that the titles to the original writ and the concurrent writ would be the same); and secondly, that the title to the proceedings be amended by changing the name of the first defendant from Middletons (formerly Coltmans Price Brent) (a firm) to John Michael Hogan.

10 I deal first with the proposition that the concurrent writ is a nullity because it is not in the same form as the original writ and does not comply with r102(2)(b). This is because Middletons (formerly Coltmans Price Brent) (a firm) is not named as the first defendant in the title to the original writ. Does this mean that the concurrent writ is a nullity? Rules 13 and 14(1) provide:

"13 Failure to comply with any of these rules does not make any proceedings void, unless the Court or a judge so orders.

14 (1) The Court or a judge may order that any proceedings that do not comply with these rules -

(b) be amended or otherwise dealt with in any manner and on any terms the Court or judge considers fit."

11 In support of his contention that the Court should order that the concurrent writ is a nullity, counsel for Middletons relies on the decision in Re Pritchard [1963] 1 Ch 502. In that case, the plaintiff issued an originating summons out of a district registry of the High Court in England in contravention of a rule that required that the proceeding be issued out of the central office of that court. When the error was discovered, application was made to transfer the proceeding to the central office. The application was refused on the basis that the originating summons was a nullity. That refusal was taken to the Court of Appeal, but the appeal was dismissed. The Rules of the Supreme Court (England and Wales) under consideration in that case included O70, r1, which was in similar terms to our rr13 and 14(1). Upjohn LJ said at 523:

"I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae. Lord Denning in MacFoy [1962] AC 152, 160, PC pointed out that a useful test was whether the defect could be waived. I agree with that as a good common-sense test, but I also agree with Mr Rubin that it cannot be a completely legal test, for until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver."

Earlier in his decision, Upjohn LJ explained that the phrase "ex debito justitiae" meant that the party was entitled as of right to have the subject of challenge set aside. He concluded that as the originating summons had not been issued in accordance with the only rule of court that applied, there had been a fundamental failure to comply with the requirements for issuing an originating summons and this was not a mere irregularity but a nullity. Danckwerts LJ, who agreed with Upjohn LJ, said at 527:

"It is quite plain that an originating summons is a procedure which can only be used in accordance with the Rules of the Supreme Court. It is no doubt true that the district registrar is an officer of the Supreme Court, but he is an officer whose powers are limited. Except in very limited cases, an originating summons requires the seal of the Central Office of the High Court; and it is clear that the seal of the district registry is not such a seal. The originating summons in this case, therefore, is a nullity and has no operation. It has no more application to the matter to be decided than a dog licence."

12 Lord Denning MR dissented. He said at 515 - 516:

"There was a technical defect in the procedure but it can be rectified without the least injustice to the defendant. Mr Rubin frankly admitted that he had no merits. We can easily remedy the error by ordering this matter to be removed to the Central Office and I think we should do it.

What is the objection to this simple remedy? It is said that because this originating summons was issued in Pontypridd instead of in London, it was a nullity and nothing can be done with it. It cannot be removed to London. It cannot be amended. It is as though it had never been issued at all. Even if the mistake had never been discovered till after the judge had decided the case, his judgment would have been a nullity. I must say I think that this argument is a flat defiance of the Rules of Court. True it is that when the originating summons was sealed in the district registry, there was a non-compliance with Ord 54, r 4B, which says it is to be sealed in the Central Office. But Ord 70, r 1, says, as plainly as it can, that 'Non-compliance with any of these rules ... shall not render any proceedings void unless the court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit.' Surely under the saving power of this rule, this originating summons could be removed from the district registry to London. ... We all know that on the technicalities of procedure such as these, we rely on the officers of the court to keep us straight. If the officer at Pontypridd had himself noticed the error when the summons was presented to him, he would no doubt have warned the solicitor of it: and the solicitor would have sent it to London and got it issued in time. As it was, the officer himself did not notice it. He sealed the summons and issued it. He made a mistake himself. Hence all this trouble. When an officer of the court itself makes a mistake, the consequences should not be visited on the unfortunate litigant, but they should be remedied by the court itself."

13 For my part, I favour the approach of Lord Denning MR. In general terms, it is consistent with the trend of decisions in Australia, which is to eschew a finding that an act done in contravention of a statutory requirement is a nullity. As to this trend, I refer to Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 71 ALJR 717, a decision dealing with a challenge to the standing of an order winding up a number of companies in circumstances where the order had been made on an application issued in breach of the Corporations Law, s459P(2). That section provided that such an application "may only be made with the leave of the Court" and leave had not been obtained. The majority of the court held that the failure to obtain leave was a procedural matter that resulted in a defect or irregularity that could be cured. At 738 - 739, Kirby J said:

"It is trite to say, but worth repeating, that the power of a court, such as the Federal Court, to correct obvious slips by orders in appropriate cases nunc pro tunc is one granted by legislation and the rules and implied in the express powers of the Court to avoid injustice. There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate [(1986) 7 NSWLR 560 at 567] and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. ... An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. Against that risk, courts generally retain the facility to cure slips and to repair oversights in proceedings before them, in appropriate cases where justice requires it."

14 An example, in this jurisdiction, of the tendency identified by Kirby J is the change in the approach of judges of this Court to the validity of a writ issued on behalf of a plaintiff by a person who is not a legal practitioner. In Co-operative Property Developments of Australia Ltd & Ors v Mount & Ors [1980] Tas SR 7, Green CJ in substance held such a writ to be a nullity. More recently, in Louis v Bendall 137/1997, Cox CJ at 5 expressed the view that such a writ was voidable rather than void, and at 2 in the same decision his Honour noted that Crawford J had not declared such a writ to be a nullity when dealing with a writ issued against the State of Tasmania by Mr Louis, who was not a legal practitioner, on behalf of himself, his wife and his child. In Louis v State of Tasmania [2001] TASSC 154, the Full Court dealt with that same writ on the basis that it was not a nullity.

15 A further illustration of this trend is the decision of the High Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364. The issue before the court was whether a requirement in the Workers Compensation Act 1987 (NSW), s151C, that there be a six month delay before the commencement of court proceedings by a worker against an employer for damages, denied legal effect to proceedings commenced in contravention of that prohibition. The court held that it did not. Gleeson CJ, Gummow, Hayne, Hayden and Crennan JJ said at [10] to [15]:

"Some attention should be given at the outset to the result which the employer submits must attend the non-compliance by the worker with s 151C. It was said that such proceedings are 'invalid or a 'nullity'. In Minister for Immigration and Multicultural Affairs v Bhardwaj [(2002) 209 CLR 597 613 [46] per Gaudron and Gummow JJ, 643 [144-145] per Hayne J], three members of this Court pointed out in the context of administrative decisions that such expressions are statements of conclusion which are not necessarily helpful in resolving the rights of parties. Dangers are equally present in the context of proceedings in, and acts and orders of, courts.

In particular, the introduction into s 151C of concepts of 'nullity' and 'invaldity' is misleading because they tend to obscure the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. That distinction has been the subject of comment in this Court[4], although due regard is to be had to the constitutional context. In the case of the superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter.

...

There also is a very real difficulty in characterising proceedings as 'invalid'. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.

Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it."

16 At the end of the day, the test for determining whether an act done in breach of a provision of a statutory instrument is a nullity is to ask whether it was a purpose of that instrument that an act done in breach of the provision in question should be a nullity, Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390. Accordingly, the question for my determination is, is it a purpose of the Supreme Court Rules that a concurrent writ issued in breach of r102(2)(b) should be a nullity? In considering this question I am mindful that the plaintiff's institution of these proceedings was an exercise of its freedom to invoke the jurisdiction of this Court to determine the dispute in question. That step engaged the procedural law appurtenant to this Court as contained in the Rules. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point to which a choice is cast upon the defendant to make some response. Once the Rules were engaged, all parties to the litigation were subject to them. Against this background I am quite unable to discern a purpose from the Rules that a concurrent writ issued in breach of r102(2)(b) is a nullity. To so conclude would fly in the face of r13, which is to the explicit effect that a failure to comply with the Rules does not make any proceeding void unless the Court or a judge so orders. Consistent with that rule, the concurrent writ is not a nullity.

17 Accepting that the concurrent writ is not a nullity, should I make an order that it is void, or should I make the first order that is sought by the plaintiff? I am not persuaded that I should make an order that the concurrent writ is void. It is clear from the parties named in the concurrent writ and the content of the endorsement of claim in that writ and the original writ that it was intended that Middletons (formerly Coltmans Price Brent) (a firm) be the first defendant in the proceedings. The erroneous omission of that name from the title to the original writ did not mislead or prejudice Middletons. Within the time limited for the entry of an appearance to the concurrent writ, Middletons filed a conditional appearance disputing its validity. Insofar as fault is relevant to my exercise of the discretions under consideration, I am conscious that registry staff contributed to the error that was made. I am also mindful of a submission as to futility that was put in opposition to the amendment sought. I will set out my views on the futility of making the title amendments sought later in these reasons. I order that the original writ be amended by altering the title to that writ when issued to that of the title of the then concurrent writ. In result, the parties to the original writ will be Middletons (formerly Coltmans Price Brent) (a firm), first defendant, David Porter, second defendant, and Piggott Wood & Baker, third defendant.

18 I turn to the plaintiff's application to change the name of the first defendant from Middletons (formerly Coltmans Price Brent) (a firm) to John Michael Hogan.

19 The Court has an inherent jurisdiction to deal with misnomer or misdescription by amendment, the same principle being applicable to both plaintiffs and defendants, notwithstanding that r184(1)(c) only refers to adding or substituting a plaintiff or applicant where a genuine mistake has been made in naming that party, Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, Dawson J at 238. At that page Dawson J also said:

"The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed."

20 The amendment sought is opposed on the basis that this is not a case of misnomer or misdescription as the plaintiff made a deliberate decision to sue Middletons (formerly Coltmans Price Brent) (a firm). Whilst I have no hesitation in accepting that the decision to sue that firm was deliberate, that decision involved the misconception that by suing the firm, the plaintiff was suing, at the very least, Mr Hogan and former partners of Coltmans Price Brent, who were partners of Middletons. A partnership is not a distinct legal entity. The members of a partnership do not form a collective whole, distinct from the individuals who make up the partnership, Rose v Federal Commissioner of Taxation [1951] HCA 68; (1951) 84 CLR 118 at 124. So as to avoid the difficulty of naming all the members of a partnership that sues or is sued, court rules commonly provide that a partnership may sue or be sued in its firm name, and that when a partnership is so sued, the service of one partner shall be the service of all partners. However, as is the case under the Supreme Court Rules, rules to this effect are commonly confined to partnerships within the jurisdiction of the court. Western National Bank of the City of New York v Perez, Triana & Co (1891) 1 QB 304 is a case in point. In that case the plaintiff sued a partnership that operated outside the jurisdiction in its firm name. One partner of the firm was served whilst he happened to be within the jurisdiction. Whilst the court rules allowed for the service of a partnership within the jurisdiction in its firm name, there was no similar rule in relation to the service of a partnership that was not within the jurisdiction. Lindley LJ explained, at 314:

"When a firm's name is used, it is only a convenient method for denoting those persons who compose the firm at the time when that name is used, and a plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names."

He agreed with Bowen LJ that in the circumstances, the name of the defendant should be amended to name the individual partners. The defendant before the court was the only partner who had been served. As to him, Bowen LJ said at 317:

"The defendant is not the less intended to be sued, because he is intended to be sued with others, who with him are misnamed, and who together with him are intended to be comprehended (though as we have seen irregularly) in one firm name. The writ is no doubt irregular, in that it uses a single firm name to describe the defendant and others, who are beyond the jurisdiction. This irregularity as regards the firm must be set right."

21 Consistent with this approach, it would be appropriate to substitute the names of the partners of Middletons in question for the name of that firm as the first defendant. However, as Mr Hogan is the only partner who has been served, it would be futile to substitute other than his name for the first defendant.

22 I come to the same conclusion on the basis of a different approach to the question of misnomer referred to by McHugh J, at 254, in Bridge Shipping Pty Ltd (supra). McHugh J there cites a test for misnomer enunciated by Devlin LJ in Davies v Elsby Bros Ltd [1960] 3 All ER 672 where he said at 676:

"I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: 'Of course it must mean me, but they have got my name wrong,' then there is a case of mere misnomer."

Adapting this test, I am in no doubt that when Mr Hogan received the concurrent writ and observed that Middletons (formerly Coltmans Price Brent) (a firm) was named as the first defendant, he would, if queried as to whether he was a defendant have responded, "Of course it must include me".

23 A further basis for opposing the changes sought is that it is futile to name Mr Hogan as the first named defendant as there is no prospect of the plaintiff establishing a claim against him. By the endorsement on the writ, the plaintiff claims damages from the first named defendant for the loss of the benefit of the approval of Derwent Court (of which the plaintiff was the proprietor) as a nursing home under the National Health Act 1953 (Cth), including the loss of the opportunity for the plaintiff to become an approved provider under the Aged Care Act 1997 (Cth) arising from the negligence of the first defendant in failing to take, and/or in failing to advise the plaintiff to take, any or any sufficient action in or after July 1997 to prevent the Minister for Health from:

• removing patients from Derwent Court;

• revoking the approval of Derwent Court; and/or

• implementing the revocation.

24 As to the removal of patients from Derwent Court, it is submitted that I should be satisfied that all the patients had been removed within several days of 23 July 1997. Such a finding would be consistent with the decision of North J in Jadwan Pty Ltd v Secretary, Commonwealth Department of Health & Aged Care [2002] FCA 1052 at [12]. It is further submitted that Mr Hogan was not engaged to act for Jadwan Pty Ltd until after the date by which all the patients were removed and, that being so, it is contended that there is no way in which Mr Hogan could be found liable for any damage that flows from the removal of the patients. I am dubious that this is necessarily so, and more particularly I am dubious that Jadwan Pty Ltd could not sustain any of its claim against Mr Hogan, if he was not retained until after the removal of the patients. In any event, I am unable to even go so far as to conclude that his engagment to act for Jadwan Pty Ltd was subsequent to the removal of the patients. The evidence before me is insufficient for me to make a conclusive finding as to when Mr Hogan was first retained by Jadwan Pty Ltd. If anything, the evidence suggests that he was first retained on 13 July 1997, that is, before the patients were removed. In the absence of cogent evidence that demonstrates that there is no basis on which the plaintiff could substantiate one of its claims against Mr Hogan, I am not persuaded that it is futile to make the amendment sought, and I will make it.

25 The orders I make are:

(1) That the title to the original writ when issued be amended to accord with the title to the then concurrent writ.

(2) That the title to the proceedings be changed by substituting John Michael Hogan for Middletons (formerly Coltmans Price Brent) (a firm) as the first named defendant.