Plaintiff v Defendant

2 The plaintiff is a Hong Kong company which manufactures and supplies clothing with the brand names 'Berlei', 'Holeproof' and 'Jockey'. On 22 December 2011, the plaintiff commenced this proceeding against Pacific Brands Ltd, alleging that it had breached its obligations as purchaser under a supply contract for the 'Berlei' brand and a supply contract for the 'Holeproof' and 'Jockey' brands.

3 On 27 January 2012, the solicitors for the Pacific Brands Group informed the plaintiff's solicitors that the purchaser under the supply contracts was Pacific Brands Clothing Pty Ltd, rather than Pacific Brands Ltd. The plaintiff ultimately accepted this contention and applied for leave to amend the name of the defendant under r 36.01(4) of the Rules on the basis that the plaintiff had mistaken the name of the defendant.

4 For the reasons that follow, Zammit AsJ was correct to grant leave to the plaintiff and, accordingly, the appeal will be dismissed.

5 Pacific Brands Clothing Pty Ltd was incorporated prior to 30 November 2001. Pacific Brands Ltd was incorporated on 12 December 2003.

6 On 6 April 2000, the plaintiff entered into two supply contracts with Pacific Dunlop Ltd (now known as Ansell Ltd). By way of written assignment agreements dated 30 November 2001, Pacific Dunlop Ltd assigned the supply contracts to Pacific Brands Clothing Pty Ltd ('Assignment Agreements'). The plaintiff's Hong Kong-based managing director, Robert Ng, executed the Assignment Agreements on behalf of the plaintiff to signify its consent to the assignments.

7 Between 30 November 2001 and 2011, the plaintiff supplied 'Berlei', 'Holeproof' and 'Jockey' branded clothing to the Pacific Brands Group. The purchase orders contained the Pacific Brands logo but did not identify a particular Pacific Brands company as the purchaser. At various stages, meetings were held between the parties to discuss the supply contracts. The plaintiff was represented at some of the meetings by Mr Ng, and the purchaser was represented by various Pacific Brands personnel, including, at times, by the then CEO of Pacific Brands Ltd, Sue Morphett. The minutes of the meetings referred to 'Pacific Brands' or 'Brands' generically without identifying a particular company.

8 Although the purchase orders did not identify a particular Pacific Brands company, they included the purchaser's ABN. A simple search of the public ABN register would have revealed that the purchaser was Pacific Brands Clothing Pty Ltd.

9 In its statement of claim dated 22 December 2011, the plaintiff asserted that '[s]ince at least about 2002 [the plaintiff] and Pacific Brands [Ltd] have been parties to a contract for the manufacture by [the plaintiff] and supply of clothing to the Berlei Division of Pacific Brands [Ltd]'. A similar assertion was made in relation to a contract for the Holeproof and Jockey divisions of Pacific Brands Ltd. The supply contracts to which reference was made were the 6 April 2000 contracts between the plaintiff and Pacific Dunlop Ltd.

10 On 27 January 2012, the solicitors for the Pacific Brands Group wrote to the solicitors for the plaintiff, asserting that the supply contracts were between the plaintiff and Pacific Brands Clothing Pty Ltd. On 8 June 2012, the solicitors for the Pacific Brands Group forwarded to the solicitors for the plaintiff copies of the Assignment Agreements.

11 It was only after the receipt of the Assignment Agreements that the plaintiff accepted that the name of the defendant had been incorrectly stated in the writ and statement of claim. On 23 August 2012, the plaintiff applied for leave pursuant to r 36.01(4) of the Rules to amend the writ and statement of claim to replace Pacific Brands Ltd with Pacific Brands Clothing Pty Ltd as the defendant.

12 The plaintiff's application was supported by an affidavit sworn by Israel Bock, the solicitor for the plaintiff. In that affidavit, Mr Bock set out information that Mr Ng provided to him. Mr Bock relevantly stated:

15 Mr Ng has told me that [the plaintiff] has at all relevant times in this proceeding wanted to sue the entity that is relevantly a party to, and bound by the obligations in, the Berlei Contract and to the Holeproof/Jockey Contract. Mr Ng has told me that over the past six years and more he has dealt on behalf of [the plaintiff] with a range of people who have operated under the Pacific Brands banner:

(a) all correspondence in relation to the two Contracts has been with people who have signed off with various positions of authority within Pacific Brands;

(b) purchase orders have been prominently marked with the Pacific Brands trade mark, and have not been marked with the words Pacific Brands Clothing Pty Ltd;

(c) meetings have been held at Pacific Brands' premises in Hawthorn, Melbourne in relation to the performance of the two Contracts;

(d) all meeting minutes have been prominently labelled 'Pacific Brands' and all references in those minutes have been to Pacific Brands as the other party to the two Contracts.

16 Mr Ng also told me that, based on the matters set out above, at all relevant times over the last six years and more he has understood and believed that [the plaintiff] had been dealing directly with Pacific Brands Limited as being in substance the contracting party under the Berlei Contract and under the Holeproof/Jockey Contract and that, to the extent that the written contracts had historically named a different party, in substance the contracts and all relevant obligations under those contracts had since been adopted by Pacific Brands Limited.

13 On the basis of this evidence, Zammit AsJ found that the plaintiff had made an error in the name of the defendant and that it was appropriate to grant leave under r 36.01(4) of the Rules. As an appeal from her Honour's decision involves a hearing de novo, the issue for me is whether the power to amend under r 36.01(4) of the Rules is engaged.

14 It was common ground before Zammit AsJ and me that the plaintiff was entitled to amend the writ and statement of claim under r 9.06 of the Rules. However, the plaintiff wishes to amend under r 36.01(4) rather than r 9.06, as an amendment under the latter rule would operate from the time of the amendment and would mean that some of the alleged breaches of the supply contracts would be statute barred. By contrast, an amendment under r 36.01(4) would operate retrospectively from the date that the proceeding was commenced and would not involve any alleged breaches becoming statute barred.

Rules 36.01 and 9.06 of the Rules

36.01 General

(1) For the purpose of -

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) 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 that party's 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.

...

16 Rule 9.06 of the Rules provides:

9.06 Addition, removal, substitution of party

At any stage of a proceeding the Court may order that -

(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

(b) any of the following persons be added as a party, namely -

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.

17 The High Court's decision in Bridge Shipping Pty Ltd v Grand Shipping SA[2] is the leading authority on the interpretation of r 36.01(4) of the Rules and on what constitutes a mistake in the name of a party.

18 The following principles established by the High Court in Bridge Shipping are relevant to the determination of the present application:

(a) Rule 36.01(4) of the Rules imposes three limitations on a person's right to amend. First, there must be a mistake. Secondly, the mistake must be 'in the name of a party'. Thirdly, the Court may only make the order 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 or her claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.[3]

(b) Rule 36.01(4) of the Rules 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. That sub-rule 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.[4]

(c) The words 'whether or not the effect is to substitute another person as a party' in r 36.01(4) of the Rules 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.[5]

(d) 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.[6]

(e) 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, 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. However, for the purpose of r 36.01(4) of the Rules, that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued.[7]

(f) To establish a mistake in the name of a party, it if not sufficient for a plaintiff to simply assert that it intended to sue the person who was legally liable to it because, if that were the test, leave to amend under r 36.01(4) of the Rules could never be refused.[8]

19 The relevant time for assessing whether the plaintiff has made a 'mistake in the name of a party' for the purposes of r 36.01(4) of the Rules is the time that the proceeding was commenced.

20 Applying the above principles to the present application, the plaintiff must establish that it made a mistake and that the mistake was in the name of the party that it intended to sue under the supply contracts.

21 Pacific Brands Clothing Pty Ltd did not contend that, by reason of the making of an order under r 36.01(4) of the Rules, it would be prejudiced in the conduct of its defence, in a way that could not be fairly met by an adjournment, an award of costs or otherwise.[9]

22 In my opinion, the plaintiff's application for an amendment to the name of the defendant falls within r 36.01(4) of the Rules because the reason for naming Pacific Brands Ltd rather than Pacific Brands Clothing Pty Ltd as the defendant was that the plaintiff mistook the name of the purchaser.

23 As stated at [19]above, the time for determining whether the plaintiff has made a mistake in the name of the defendant is the date that the writ was filed. Of importance are the facts known to, and the actions of, the plaintiff as at that time, viewed objectively.

24 The plaintiff's claim, as originally pleaded, is for breaches of the supply contracts, which are said to be between the plaintiff and Pacific Brands Ltd. The statement of claim quotes from particular provisions of the supply contracts and states that those contracts can be inspected at the offices of the plaintiff's solicitors. It is not in dispute that the supply contracts that are pleaded are the 6 April 2000 supply contracts between the plaintiff and Pacific Dunlop Ltd.

25 It can be inferred that the plaintiff provided to its solicitors the supply contracts with Pacific Dunlop Ltd to facilitate preparations of the statement of claim. It can also be inferred from the absence of a reference to the Assignment Agreements in the statement of claim and from the subsequent correspondence between the parties that the plaintiff did not provide the Assignment Agreements to its solicitors prior to the commencement of the proceeding. It can be further inferred that the plaintiff's solicitors did not become aware of the Assignment Agreements until those agreements were brought to their attention by the solicitors for the Pacific Brands Group on 8 June 2012.

26 It follows from the above that the plaintiff intended to sue the Pacific Brands company that took over the obligations of Pacific Dunlop Ltd under the supply contracts. Without the benefit of the Assignment Agreements, the plaintiff and its solicitors erroneously believed that the name of that Pacific Brands company was Pacific Brands Ltd. That company was named as defendant because the plaintiff made a mistake about the name of the Pacific Brands company that replaced Pacific Dunlop Ltd as the purchaser under the supply contracts. Pacific Brands Ltd was not named as defendant for any other reason or in any other capacity, such as its status as the holding company in the Pacific Brands Group.

27 It is apparent from the above that the plaintiff believed that the name of the entity that had ordered clothing under the supply contracts was Pacific Brands Ltd, that Pacific Brands Ltd was responsible for complying with the supply contracts and that it was liable for the alleged breaches of the supply contracts. The plaintiff intended to sue the company that was the contracting party but made an error in its name, probably due to the prominence of the generic 'Pacific Brands' brand name in the purchasing orders and minutes of meetings.

28 The above analysis is supported by the fact that the statement of claim refers to transactions under the supply contracts '[s]ince at least about 2002'. This reference to a period preceding the incorporation of Pacific Brands Ltd is inconsistent with an intention by the plaintiff to sue that company, as distinct from the Pacific Brands company that placed orders under the supply contracts from as early as 2002. That company is Pacific Brands Clothing Pty Ltd.

29 The principles set out at [18](d) and (e) above are apposite to the present case.

30 Paragraph 16 of Mr Bock's affidavit, which is set out at [12] above, is confusing. On one view, it suggests that the plaintiff intended to sue Pacific Brands Ltd, on the basis that it had 'adopted' the supply contracts. I do not believe that this is what Mr Bock intended, as this would be inconsistent with the manner in which the claim is pleaded.

31 In my opinion, Mr Bock used the expression 'adopted' loosely to explain Mr Ng's belief that the name of the company that had succeeded Pacific Dunlop Ltd as purchaser under the supply contracts was Pacific Brands Ltd. This is consistent with the fact, which I infer from all the circumstances, that, at the time the writ was filed, Mr Ng did not recall the Assignment Agreements.

32 Had the plaintiff's solicitors conducted basic company and business name searches prior to the commencement of this proceeding, they would have discovered the correct name of the defendant and no amendment would have been required. However, the reasonableness of the plaintiff's error in mistaking the name of the defendant is not relevant to the granting of leave under r 36.01(4) of the Rules.

33 It follows that Zammit AsJ was correct to allow the amendment to the name of the Defendant pursuant to r 36.01(4) of the Rules. Accordingly, I will make an order dismissing the appeal from her Honour's decision.

[1] Strictly speaking, r 36.01(4) of the Rules merely describes one of the circumstances in which leave can be granted under r 36.01(1).

[2] [1991] HCA 45; (1991) 173 CLR 231 ('Bridge Shipping').

[3] Bridge Shipping [1991] HCA 45; (1991) 173 CLR 231, 261.

[4] Bridge Shipping [1991] HCA 45; (1991) 173 CLR 231, 260-1.

[5] Bridge Shipping [1991] HCA 45; (1991) 173 CLR 231, 259-60.

[6] Bridge Shipping [1991] HCA 45; (1991) 173 CLR 231, 260.

[7] Bridge Shipping [1991] HCA 45; (1991) 173 CLR 231, 260.

[8] Bridge Shipping [1991] HCA 45; (1991) 173 CLR 231, 262.