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[1992] QCA 59
Court of Appeal (Qld)
1992-04-10
Pherson JJ
Original judgment source is linked above.
The applicant argues that his application before the District Court Judge was one merely to correct the name of a party and that, notwithstanding that there is no rule in the above terms in the District Courts Rules, 1968, r.4 of those rules would apply the above rules. Rule 4(a) of the District Courts Rules, 1968 provides:-
"Where the Rules of the Supreme Court provide for a remedy, procedure, or power which may be granted, applied, or exercised whether before, at, or after judgment in the course of proceedings of a type which may be heard and determined in a District Court and such remedy, procedure, or power is not provided for in these Rules, the Rules of the Supreme Court relating to such remedy, procedure, or power shall, with all the necessary adaptation, apply to such proceedings in a District Court."
It was argued faintly by the respondent that the presence of r. 23 and of a power to amend in r. 108 indicated that such a procedure was provided by the District Court Rules, but there is no substance in that argument. In our view O. 32 r. 1 applies in the District Court.
The application before the District Court Judge was not in form an application to correct the name of a party and it was submitted by the respondent, and not contested by the applicant, that this question was not argued before the District Court Judge. However, it was not contended that there was any more than a theoretical possibility that if this question had then been argued either the respondent or Jayform Pty Ltd could have adduced any relevant evidence which it did not adduce before the District Court Judge. We doubt that there was even that possibility. A Mr Diekman, one of the respondent's directors, had been the applicant's foreman. The companies were clearly related. The plaint which was served on the respondent alleged in some detail the circumstances of the applicant's accident. And in any event the compulsory insurer was the Workers' Compensation Board.
In Bridge Shipping Pty Ltd v. Grand Shipping SA [1991] HCA 45; (1991) 66 A.L.J.R. 76, the High Court considered the construction of a rule of the Victorian Supreme Court which, though in terms different from O.32 r.1(3), was considered by the court to have the same effect. The court concluded that, under that rule, 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: see at 88 col. 1B, 77 col. 1B. Clearly, the applicant's mistake in the present case falls into one or other of those categories and consequently the appeal should be allowed.
We agree with the view, expressed by the Full Court in Lynch v. Keddell (No. 2) (1990) 1 Qd.R. 10, that where an order is made allowing joinder in circumstances such as this, an order should also be made that proceedings should be deemed to have been commenced against the new defendant at a time when the limitation period was still running. Accordingly, we would make orders that:-
(a) Jayform Pty Ltd be substituted for Jayform Contracting Pty Ltd as defendant in this action;
(b) the substitution of Jayform Pty Ltd as defendant in these proceedings take effect on and from 7 May 1991.
The appellant should pay the respondent's costs here and below.
2. Extend the time for filing a notice of appeal to today.
3. Treat the notice of appeal already filed as filed today pursuant to that leave.
(a) Jayform Pty Ltd be substituted for Jayform Contracting Pty Ltd as defendant in this action;
(b) the substitution of Jayform Pty Ltd as defendant in these proceedings take effect on and from 7 May 1991.
6. The appellant pay the respondent's costs, to be taxed, of the appeal and of the proceedings below.
Solicitors: Mr Bruce S. Dulley as town agent for Messrs Walker Pender for the Appellant
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Joint reasons of Davies JA and McPherson JA and reasons of Shepherdson J, concurring as to the order made, delivered on 10 April 1992.
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2. EXTEND THE TIME FOR FILING A NOTICE OF APPEAL TO TODAY.
3. TREAT THE NOTICE OF APPEAL ALREADY FILED AS FILED TODAY PURSUANT TO THAT LEAVE.
(A) JAYFORM PTY LTD BE SUBSTITUTED FOR JAYFORM CONTRACTING PTY LTD AS DEFENDANT IN THIS ACTION;
(B) THE SUBSTITUTION OF JAYFORM PTY LTD AS DEFENDANT IN THESE PROCEEDINGS TAKE EFFECT ON AND FROM 7 MAY 1991.
6. THE APPELLANT PAY THE RESPONDENT'S COSTS, TO BE TAXED, OF THE APPEAL AND OF THE PROCEEDINGS BELOW."
Jiminez
Jayform Contracting Pty Ltd [1992] QCA 59
IN THE COURT OF APPEAL [1992] QCA 059