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[1999] NSWSC 1177
Supreme Court of NSW
2007-08-27
Kearns J, Mr J
Original judgment source is linked above.
CITATION : Turner v Ansett Australia Limited [2007] NSWDDT 26
PARTIES : Joanne Turner Ansett Australia Limited
Dust Diseases Tribunal :- Proceedings for damages Plaintiff claimed negligent exposure to fumes chemicals and dust while employed by Airline A during 9 year period Airline A admitted employment CATCHWORDS: Both parties later learnt plaintiff worked for Airline E for first 3 year period Application to amend statement of claim to join Airline E and application to amended defence to deny employment for first 3 year period Whether amendment to join Airline E operates from date of joinder or from commencement of proceedings Amendment to statement of claim operates as substitution of defendant's name rather than joinder of new defendant Amendments operated from commencement of proceedings
Workers Compensation Act 1987 Corporations Act 2001 Workers Compensation (Dust Diseases) Act 1942 LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Dust Diseases Tribunal Act 1989 Supreme Court Rules 1970
Sullivan v Van der Broek [1999] NSWSC 1177; Fernance v Nominal Defendant (1989) 17 NSWLR 710; Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231; CASES CITED: Australia & New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286; Lloyd Steel Co (Aust) Pty Ltd & Anor v Jade Shipping SA & Anor (1985) 1 NSWLR 212; Greater Lithgow City Council v Wolfenden [2007] NSWCA 180; Amaca Pty Limited v Cremer (2006) 4 DDCR 42
Mr J McIntyre SC, instructed by Turner Freeman, appeared for the plaintiff LEGAL REPRESENTATIVES: Mr D Miller, instructed by Moray & Agnew, appeared for the defendant Mr C S Leahy SC, instructed by Curwoods Lawyers, appeared with leave for Eastwest Airlines Limited
The applications 1. There are two interlocutory matters to be determined.
The background to the applications 4. On 23 November 2001, the plaintiff commenced proceedings against Ansett Australia Limited (Ansett). She alleged that over the period from about 1990 to about 1998, she was negligently exposed by Ansett to fumes, chemicals and dust as a result of which she contracted illness for which she sues in the Tribunal.
The essence of the plaintiff's case is that over that period she was employed by Ansett and Ansett breached its duty of care to her.
On 9 September 2003, Ansett filed a defence. It is significant to note that in that defence, Ansett admitted that it employed the plaintiff over the period in respect of which she sued.
In late November 2005, Mr Taylor-Jones, a solicitor with Moray & Agnew, the solicitors for Ansett, became aware, as a result of analysing a number of documents, that there was evidence that suggested that the likelihood was that, for the period from about 1990 to about 31 October 1993, the plaintiff was not employed by Ansett, but was employed by Eastwest Airlines Limited (Eastwest) and thereafter was employed by Ansett.
It was that discovery that has ultimately led to Ansett's application to amend its defence. It seeks to amend its defence to plead that it did not employ the plaintiff between about 1990 and about 31 October 1993. Should the Ansett application be successful, and should it be correct on this point, that would leave the plaintiff with a period from about 1990 to about 31 October 1993 in respect of which she would not be able to establish employment unless Eastwest were joined in the proceedings. As a result, she has made such an application.
The matter proceeded on the basis that there was no contest in the light of all the material now available that the plaintiff was in fact employed by Eastwest from about 1990 to about 31 October 1993 and was employed by Ansett thereafter.
On 19 November 2001, the plaintiff instructed her solicitors, Turner Freeman, that she was employed by Ansett from about 1990 to about 1998 and that, from about 1990 to 1993, she flew on "Eastwest" flights at the direction of Ansett.
As at 19 November 2001, Turner Freeman were aware of impending changes to the Workers Compensation Act 1987 (WCA). It was notorious at the time that changes were imminent and that they would have the effect of drastically reducing a worker's rights to damages for tortiously inflicted injuries. There was a heightened sense of awareness about this, especially amongst the legal profession, and lawyers specialising in personal injuries work were extremely busy at that time taking instructions, advising, preparing and filing statements of claim to ensure that statements of claim were filed before the changes were introduced. Lawyers with busy personal injuries practices were under an enormous workload and under a lot of pressure, to ensure that statements of claim were filed before the changes, to protect their clients' interests. Lawyers were, indeed, potentially at risk of professional negligence actions against themselves if they did not file statements of claim or obtain instructions not to file them before the changes were introduced.
It was in this climate that the plaintiff's solicitors received their instructions and they had something like nine days to file the statement of claim before the deadline for the amendments that were to be introduced.
It is notorious also that the plaintiff's solicitors had a practice that included a very busy personal injuries component. Their priority at that time had to be to ensure that a statement of claim was filed quickly.
At that time, Ansett was under administration and the consent of the administrator was required for the plaintiff to commence proceedings against it. s.440B Corporations Act 2001
On 22 November 2001, Turner Freeman sought the consent of the administrator to commence proceedings against Ansett.
On 23 November 2001, the statement of claim was filed. Evidence as to the consent of the administrator was not before me, but no issue was raised as to that. On 28 December 2001, Turner Freeman sent a letter to the administrator seeking consent to the continuation of the proceedings. On 16 January 2002, the administrator granted consent to the continuation of the proceedings against Ansett.
Having filed the statement of claim, a decision was apparently made not to serve it until clarification of the plaintiff's medical condition was obtained. Advice was sought as to whether her condition would be permanent, progressive, short-lived or limited. These enquiries were ongoing from the filing of the statement of claim.
On 16 January 2002, Turner Freeman received a report from Professor Glanville, a thoracic physician. Further medical reports were sought in October 2002.
On 8 November 2002, Turner Freeman briefed Mr Letcher of Queen's Counsel.
On 19 November 2002, a conference was held with Mr Letcher QC, the plaintiff and Mr Tzouganatos, a solicitor then in the employ of Turner Freeman.
On 20 November 2002, the statement of claim was served on the administrator of Ansett.
On 28 April 2003, Mr Tzouganatos perused some employment records that had been handed to Mr Gardiman, a partner in Turner Freeman, by Mr Gordon, a solicitor employed by Moray & Agnew. These records were handed to Mr Gardiman at a listing of the matter before Judge Johns on 14 April 2003. Mr Tzouganatos did not know if those records were a complete list of the records of employment of the plaintiff.
On 14 October 2003, Ansett's list of documents was served on the plaintiff's solicitors.
Included in Ansett's list of documents and in the documents handed to Mr Gardiman was a letter under the letterhead of "Ansett Australia." which at the foot of the page described it as "a division of Ansett Transport Industries (Operations) Pty. Ltd".
The letter, dated 9 September 1993, was addressed to the plaintiff and included the following:
"As part of the continuing rationalisation of the TNT Newscorp owned airline interests Ansett Australia will be the only operating airline. I am pleased to offer employment with Ansett Australia with effect from November 1, 1993. …
Employment with Ansett is offered in accordance with Ansett Transport Industries/Eastwest Airlines Flight Attendant Integration Award 1988, which recognises your service with Eastwest Airlines within the Ansett seniority list. Your outstanding accruals for Recreation Leave, Sick Leave, Long Service Leave and Superannuation will be recognised by Ansett Australia. It is important that you carefully consider this offer of employment and if accepting sign your acceptance in the space provided below and return the original to the Ansett Australia, Personnel Manager, Mascot Airport prior to September 30, 1993. … Your employment with Eastwest Airlines will case with effect from October 31, 1993. … In anticipation of your acceptance I wish to welcome you to Ansett Australia and on receipt of your acceptance we will contact you advising details of uniform issue and other administrative arrangements concerning employment by Ansett…"
"I acknowledge receipt of this letter and accept employment, as outlined, with Ansett Australia with effect from November 1, 1993."
That acknowledgement was signed by the plaintiff and dated 13 September 1993.
On 9 September 2003, Ansett filed its defence and admitted it employed the plaintiff for the whole of the period relied on by the plaintiff in the statement of claim.
Thereafter, Mr Tzouganatos continued with his preparation of the matter, concentrating on the medical issues.
In late November 2005, Mr Taylor-Jones reviewed the matter and came to the view that the defence did not accurately represent the position.
On 2 December 2005, Moray & Agnew wrote to Turner Freeman forwarding a copy of the proposed amended defence. The proposed amendment was to limit the admission of employment to a period of 1 November 1993 to about 1998.
There was some correspondence following the notification of the proposal to amend its defence.
Mr Tzouganatos has sworn an affidavit on 30 November 2006 in the plaintiff's application. He says in that affidavit, and I accept, that it was always his intention, on instructions from the plaintiff, to sue the plaintiff's employer and that he believed until the events that unfolded that the identity of that employer was Ansett in respect of the whole of the period.
Ansett's application to amend the defence 32. This was not opposed by Mr McIntyre SC, who appeared for the plaintiff, so long as the plaintiff was not prejudiced.
The plaintiff's application to proceed against Eastwest 38. This application was not opposed, however Mr Leahy SC, who appeared for Eastwest, argued that the date of the commencement of the proceedings against Eastwest should not be the date of the filing of the statement of claim, but the date on which the joinder of Eastwest is made.
The legislation 40. Section 64 of the CPA provides as follows.
(1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate.
(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969 . (6) In this section, originating process , in relation to any proceedings, includes any pleading subsequently filed in the proceedings.
The submissions 46. The submissions centred around two issues. One issue was whether the plaintiff's relief should be granted under s.64 or s.65 or both or whether it should be granted under Part 6 Rule 24. The other issue was whether the amendment should be held to be effective from the filing of the original statement of claim or from the date on which I make the order or some later date.
Analysis 51. I am against the submissions of Mr Leahy SC. Properly analysed, I think this application is an application to substitute a party rather than to add one. This comes from an analysis of the proposed amended statement of claim. Relevantly, it pleads:
"1B. From on or about 1990 to on or about 30 October 1993, the Plaintiff was employed by the Second Defendant as a flight attendant upon the BAE146 aircraft. During the course of this work upon the BAE146 aircraft, the Plaintiff was exposed to and inhaled dust and fumes emanating from the aircraft engines. The dust and fumes inhaled by the Plaintiff contained vaporised oil, mist and other toxic elements. 2. From on or 1 November 1993 to on or about 1998, the Plaintiff was employed by the First Defendant as a flight attendant upon various aircraft including the F27, the F28 and the BAE146. During the course of this work upon the BAE146 aircraft, the Plaintiff was exposed to and inhaled dust and fumes emanating from the aircraft engines. The dust and fumes inhaled by the Plaintiff contained vaporised oil, mist and other toxic elements. including Beryllium. "
The references in those clauses to "First Defendant" and to "Second Defendant" are references to Ansett and Eastwest respectively.
It will be seen in respect of the period "from about 1990 to on or about 30 October 1993", the plaintiff pleads her case against Eastwest and against Eastwest only. Likewise, in respect of the period from 1 November 1993, she pleads her case against Ansett only. Her current statement of claim pleads her case for the whole period against Ansett. What the proposed amendment does is to drop Ansett from the proceedings in respect of the period 1990 to 1993 and put Eastwest in its place. In my view, that is, in substance, a substitution.
Following paragraph 2 of the proposed amended statement of claim are a number of paragraphs pleading matters generally against both Ansett and Eastwest. Those paragraphs do not derogate from paragraphs 1B and 2 which isolate distinct periods of employment.
Mr Leahy SC referred me to Sullivan v Van der Broek [1999] NSWSC 1177 . He relied on the distinction in that case between the addition of a party to proceedings and the substitution of a party. For reasons I have already given, I think this is an application for substitution and, accordingly, that case is distinguishable. The difference between the addition of a party and the substitution of a party may be seen in the potential liability of the parties. If a party is added, all parties including those joined in the first place may be liable to the plaintiff. If a party is substituted, only the substituted party may be liable. In this case, on the amended statement of claim, only the substituted party could be liable to the plaintiff in respect of the period 1990 to 1993. A further distinction is that, in Sullivan , there was no mistake in the joinder of the original defendants. Here, there was a mistake in the joinder of Ansett for the period of 1990 to 1993.
Mr Leahy SC also relied on Fernance v Nominal Defendant (1989) 17 NSWLR 710 . He sought to extract from that case that one cannot use ss64 and 65 to get around Part 6 Rules 24 and 28. I do not see that argument arising out of that case. It seems to me that what concerned Gleeson CJ particularly in that case was the apparent discrepancy between Part 8 and Part 20 of the Supreme Court Rules 1970. The problem was that, on the plaintiff's argument in that case, the application of two different provisions of the Rules to the same set of facts produced different results. The problem was overcome by working out the relationship between the two different provisions and determining which, if any, of the provisions was the applicable one in the case.
What is to be drawn from Fernance is that it is necessary to analyse the particular sections and rules to see which is applicable in any given case. Plainly, it would be odd if there were two or more provisions that applied, but with differing consequences. One would then need to examine the provisions to see if there was any discrepancy, such as that mentioned in Fernance . It would be necessary then to examine the different provisions to see if one provision should prevail over another.
Looking at the different provisions, I think s.65 may be eliminated in this case. I do not think it applies. It applies "to any proceedings commenced before the expiration of any relevant limitation period" s.65(1) . There are several reasons, in my view, why this provision does not apply:
(1) contrary to the submission of Mr McIntyre SC, I do not think there is any relevant limitation period. Section 151D of the WCA provides for a period of three years. However, s.12A of the DDT Act provides that nothing in a limitation provision operates to prevent the bringing of proceedings before the Tribunal. I think it ignores the substance of this provision to say that there is a limitation period, but it is not one on which the defendant can rely. My view is consistent with the stated purpose of the section, namely to enable proceedings in relation to a dust related condition to be brought at any time; (2) if there is a limitation, these proceedings were not brought before its expiration. If there were a limitation period, it would be the three years provided by s.151D, that is three years from when the injury was received. The plaintiff complains of symptoms "since the early 1990s" Annexure D to the affidavit of Mr Tzouganatos . The limitation period therefore expired on one sense three years after the early 1990s and these proceedings were commenced on 23 November 2001. They were therefore not commenced before the expiration of any limitation period. In another sense, the plaintiff's continued exposure to offending substances at work gave rise to fresh causes of action. The latest it could be stretched is "to about 1998". As the proceedings were commenced towards the end of 2001, that would leave only a small part of the proceedings, if any, that may be said to have been commenced before the expiration of the limitation period and certainly none of the period in respect of which it is proposed to make Eastwest liable involved proceedings commenced before the expiration of the limitation period;
(3) the alternative argument that the amendments to the workers' compensation legislation in 2001 introduced a limitation does not assist because if those amendments may be described as a limitation, they certainly cannot be described as a "limitation period" CPA s.65(1) and nor do they constitute a limitation period "for the commencement of proceedings" CPA s.65(1) .
That leaves the question as to whether s.64 or Part 6 applies to this application. It is plain that Part 6 cannot apply to all applications to join a party despite the terms in which it is expressed. That is perhaps best illustrated by comparing it with s.65. In a case where s.65(2)(b) clearly applies, there would be no scope for the operation of Part 6 Rule 24 or Rule 28. This is because it would raise the type of problem written about by Gleeson CJ in Fernance. The problem is that there would be two different sets of provisions applying to the same set of facts and yielding different consequences. The problem is resolved in the way suggested in Fernance and that is by observing that Part 6 is a provision of a general nature and that s.65 is a provision applying to a particular situation and, in the appropriate case, the general (Part 6) would yield to the particular (s.65).
Section 64, in my view, embraces an amendment that has the effect of joining or substituting another party to proceedings. So much seems to be implied in s.64(4) and the general terms of s.64(1) and s.64(2) would embrace this.
It is clear, in my view, that when the statement of claim was filed, there was a mistake in the name of the defendant at least for part of the period relied on. The plaintiff always intended to sue her employer and Mr Tzouganatos thought that he had done so. Section 64(4), in my view therefore, is satisfied.
Section 64(4) is a provision dealing with a particular situation, namely mistake in the name of a party. As it is a particular provision dealing with a situation that has arisen in this case, it overrides the general provisions of Part 6. In my view, therefore, s.64 applies and the plaintiff should be granted leave to amend the statement of claim accordingly.
Support for the view that s.64 applies to this case is to be found in Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 . The High Court was concerned with the interpretation and application of Rule 36.01(4) of the Rules of the Supreme Court of Victoria. Its wording is not identical to s.64(4) of the CPA, but, in my view, its intent and effect are the same. McHugh J delivered the leading judgment and, at 259-261, set out in some detail his view as to the proper construction of the Rule under consideration. He concluded by saying:
"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. 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 ".
Applying that interpretation to the facts of this case, I am satisfied that there has been a mistake in the name of the party within the meaning of s.64(4) of the CPA.
I consider then the date from which the amendment is effective. There is a general principle that amendments operate from the date of the original pleading, see for example, Australia & New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286 . That principle can have effect where an amendment is made that joins a party to proceedings - Lloyd Steel Co (Aust) Pty Ltd & Anor v Jade Shipping SA & Anor (1985) 1 NSWLR 212 .
I accept the submission of Mr McIntyre SC that amendments made under s.64 are to operate from the commencement of the proceedings. That is a general principle and I think it is a general principle that underlies s.64. A specific exception to that general principle is made in s.64(3) and that exception does not apply here.
Mr Leahy SC referred me to Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 . What may be drawn from that case is that the Court should apply the settled construction of the former rules of Court in construing ss64 and 65 para 18 . In my view, doing so produces the result that the amendment operates from the date of the filing of the original statement of claim.
Mr Leahy SC also drew on Amaca Pty Limited v Cremer (2006) 4 DDCR 42, especially at [68-70] . I do not think that case is particularly helpful. It concerned the meaning of the word "proceedings" in s.12B of the DDT Act. That section provides for the survival of general damages beyond the death of a plaintiff if proceedings were pending before the Tribunal at the date of death. It was held that "proceedings" meant the proceedings against the particular defendant against whom the damages were sought so that if proceedings had been commenced against a number of defendants before the plaintiff died and also against one or more defendants after the plaintiff died, the general damages survived as against the former defendants, but not the latter.
I do not think I can make an order of the kind sought in prayer 2 of the plaintiff's Notice of Motion in relation to the effective commencement date of the amendment. Section 64, unlike s.65(3) and Part 6 Rule 28, does not have provision for a court to make an order. The effective date of the amendment is a date that is fixed by operation of law and, in my view, the operation of s.64 to the facts of this case means that the amendment operates from the date of the commencement of the proceedings.
Orders 68. (a) Pursuant to s.64 of the Civil Procedure Act 2005, I grant leave to the plaintiff to amend her statement of claim in accordance with the Amended Statement of Claim annexed to the Notice of Motion dated 30 November 2006. (b) I give liberty to the parties to apply as to costs. ********** Mr J McIntyre, SC, instructed by Turner Freeman, appeared for the plaintiff.
Mr D Miller, instructed by Moray & Agnew, appeared for the defendant.
Mr C S Leahy SC, instructed by Curwoods Lawyers, appeared with leave for Eastwest Airlines Limited. Dust Diseases Tribunal of New South Wales Matter No. DDT428 of 2001
Joanne Turner (Plaintiff) v Ansett Australia Limited (Defendant)
27 August 2007 ADDENDUM TO JUDGMENT KEARNS J When I delivered reasons for judgment in this matter on 27 August 2007, I overlooked including an order dealing with the defendant's notice of motion. This was drawn to my attention and I made an order as follows:
I order that the defendant have leave to file and serve an amended defence in the form annexed to its Notice of Motion dated 18 October 2006.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Turner
Ansett Australia Limited