Honnery v McKenzie[1997] QCA 445

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 12 of 1997.

Brisbane

[Honnery v. McKenzie]

BETWEEN:

GLENVILLE COLIN HONNERY and

ELIZABETH ELLEN HONNERY

(First Defendants) Appellants

AND:

PAUL McKENZIE

(Plaintiff) Respondent

Davies J.A.

Pincus J.A.

Lee J.

Judgment delivered 16 December 1997

Judgment of the Court

APPEAL DISMISSED WITH COSTS

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 12 of 1997.

Brisbane

Before Davies J.A.

Pincus J.A.

Lee J.

[Honnery v. McKenzie]

BETWEEN:

GLENVILLE COLIN HONNERY and

ELIZABETH ELLEN HONNERY

(First Defendants) Appellants

AND:

PAUL McKENZIE

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16 December 1997

This is an appeal from an order made in the Supreme Court at Townsville for the substitution of the appellants as defendants in lieu of John and June Honnery, who had originally been joined as defendants, in an action for damages.  The order was made under O. 32 r. 1(3) of the Rules of the Supreme Court, set out below.

The application to substitute defendants was made on the ground that the respondent plaintiff Mr McKenzie, was injured on 11 April 1992 at Fairlight Waterhole, in the Hughenden district, that he had instituted an action on 10 April 1995 to recover damages for his injury, but had mistakenly joined John and June Honnery as defendants;  the applicant’s case was that the mistake originated in advice wrongly given by a government employee, to the effect that Fairlight Waterhole, where the injury was sustained, was on a property owned by John and June Honnery.  It is common ground that in truth the owners - strictly speaking, Crown lessees - of the relevant property were at the relevant time, 11 April 1992, the appellants.  The argument advanced by Mr Bain QC, for the appellants, was that the facts proved by the respondent (applicant below) did not, either directly or by reasonable inference, establish the matters necessary to give rise to power to make the substitution order.

Order 32 r. 1(3) reads as follows:

"An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court or 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."

Subrule 2 has the effect, so far as relevant, of allowing an amendment under subr. 3 to be made after the expiry of any relevant period of limitation.  That may be done, however, only if "the Court or Judge thinks it just to do so".  Mr Bain did not direct any argument to the question whether it was just to make an order, but relied on a contention that the requirements of subr. 3 were not shown to have been satisfied by the evidence adduced.

The respondent’s case is that he was injured, becoming tetraplegic, as a result of an accident at the waterhole in question, which he understood was on a property called "Soda Valley".  In truth the waterhole is on a property known as "Ormonde", owned by the appellants.  The respondent’s solicitor Mr Wherry gave evidence, by affidavit, before the primary judge that he inquired at the Hughenden Lands Department Office of a long time employee of that Department as to the registered owners, by which was meant Crown lessees, of a property including an area marked "X" on a map which was produced to the employee.  That area was marked as the site of Fairlight Waterhole .  The deponent gave evidence that he was advised that the registered owners of the property including the area "X" as at 11 April 1992 (the date of the respondent’s injury) were John Honnery and June Honnery.  That advice was incorrect.

The first submission made by Mr Bain was that the judge below could not have been satisfied on the evidence that the amendment was one "to correct the name of a party" within the meaning of the relevant subrule.  The High Court in Bridge Shipping Pty Ltd v. Grand Shipping S.A. (1991) 173 C.L.R. 231 considered the meaning of a similar expression in r. 36.01 of the Rules of the Supreme Court of Victoria.  That rule permitted amendment in general terms, by subr. 1, and by subr. 4 provided:

"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".

The High Court case concerned a claim relating to damage to goods carried by sea;  the intention had been to sue the carrier and a third party notice was issued against the ship’s registered owner, but it was subsequently discovered that the vessel was under charter to another company.  An attempt to substitute the charterer for the owner failed on the ground that "the mistake made was not one in the name of a party" within the meaning of the subrule.  In discussing the effect of the subrule, McHugh J who delivered the principal judgment, said (260):

" . . . a person 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 . . . 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, e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description". (emphasis added)

In the case before the High Court the view was taken (262) that the true intention was to sue the owner of the vessel which carried the goods.  McHugh J remarked:

"Bridge made no mistake as to the description of the party which it wished to sue.  It intended to sue the owner and did so".

Here, if the order made below was right, that could only be on the basis that the intention was to sue the owner of the property which included the water hole.  The evidence adduced on behalf of the respondent, explained above, supports the conclusion that what the plaintiff wished to do was to sue whoever owned the relevant property; on the unchallenged evidence, the respondent’s solicitor was misinformed on that subject at the Lands Department Office.  The case is not one, then, where (as in Bridge) the defendant initially joined was a person of just the description intended.  Mr Bain argued that the present facts, in the relevant respect, resemble those in Bridge, but we do not understand how that can be said to be so.  We therefore do not accept that the order made below is wrong as not being one "to correct the name of a party" within the meaning of the relevant subrule. 

The second submission made by Mr Bain is one which has, with respect, more substance;  it was that the evidence was insufficient to satisfy the requirement of the latter part of the subrule, that the judge be satisfied that the mistake " . . . was not misleading or such as to cause any reasonable doubt as to the identity of the person . . . intended to be sued".  It was argued for the respondent that the order made below may be upheld if either of the two requirements in the language we have quoted is proved, but that is not so;  to obtain an amendment under subr. 3, it must be shown both that the mistake was not misleading and that it was not such as to cause any reasonable doubt on the subject mentioned.

Putting the opposing contentions simply, the respondent says that John Honnery and June Honnery, who were initially sued, quickly inferred that the writ should have been directed to the appellants who, when they became aware of the situation, drew the same inference.  The appellants contend that the judge below should have held, on the evidence, that the circumstances left it uncertain whether it was John and June Honnery, on the one hand, or the appellants on the other who were intended to be sued.

The only evidence adduced was given by Mr Wherry, the respondents’ solicitor, who is mentioned above, and Mr M P Drummond, an articled clerk employed by the solicitors for the appellants.  Mr Wherry was not we assume in a position to give evidence on the question whether the appellants had become aware, before the writ was issued, that the respondent had become tetraplegic as a result of an accident at their water hole.  If the appellants had in truth been unaware of that, the fact could have been proved either directly, or by hearsay evidence given by Mr Drummond.  It is significant that although Mr Drummond gave evidence of a number of things which the appellant  G C Honnery told him about the matter, he made no mention of this critical point.  The position is analogous to that in which a witness is not asked by his or her own counsel about an important matter, as to which the other side has given evidence tending towards a certain inference.  Where the conclusion which is open is that the reason for failure to ask the witness the vital questions is that the answer "would have exposed facts unfavourable to the party" (Jones v. Dunkel (1959) 101 C.L.R. 298 at 320-321), then "the presumption that the testimony would not have been favourable to the party’s case is stronger than the one which arises from the failure to produce such a person as a witness":  Milliman v. Rochester Railway Co. 3 App. Div. 109;  39 N.Y.S. 274 (1896), approved in Commercial Union Assurance Company of Australia Ltd v. Ferrcom Pty Ltd (1991) 22 N.S.W.L.R. 389 at 418, 419.  The knowledge the appellants possessed, before the issue of the writ, of the tragedy at the waterhole on their property must (absent any evidence directly deposing to it) be a matter of inference.  The question is whether the Court might reasonably infer that at all material times the appellants must have been aware of the main facts of the accident. 

It is of course possible that no-one troubled to tell them of the matter and that they made no inquiries about it;  but that appears to us improbable.  The question whether the inference should be drawn that the appellants had at least basic information about the accident before the writ was issued is of importance because, unwisely as it seems to us, the writ, issued on the day before the expiration of the limitation period, did not identify the cause of action except in a most general way;  the claim endorsed was simply "for damages for negligence and/or breach of duty and/or breach of statutory duty and interest thereon".

But the writ was served in the last week of June 1995 and very shortly after that a letter was written on behalf of John and June Honnery by Bowen solicitors which indicates that they understood what the writ was about.  The solicitors for John and June Honnery said in that letter:

"From information gained by our client (sic) they believe that the Plaintiff may be alleging that the accident occurred on the property owned by our client (sic) brother, Glen Honnery."

The appellant G C Honnery told Mr Drummond that he was first told of the respondent’s claim by John Honnery "some time in early July, 1995".  It appears likely, then, that the brothers discussed the writ about the time it was served on John and June Honnery and it is not unreasonable to conclude that the appellants were at that time of the same view as John and June Honnery, namely that the case appeared to relate to an accident on "the property owned by our client (sic) brother, Glen Honnery".  That conclusion is strengthened by the terms of a letter written in the following month, on behalf of the appellants’ insurer.  By a letter dated 21 August 1995 Messrs Kinsey Bennett & Gill wrote a letter the body of which is as follows:

"We act on behalf of the insurer for Ellen & Glen Honnery who have informed us that they are of the opinion that you have erroneously joined John & June Honnery as defendants to these proceedings.  Do you have any information with respect to this aspect?

We ask that you kindly advise the following with respect to this matter

1. Date of the accident
2. Location of the accident
3. Details of the way in which the accident occurred.

Do you have a draft Statement of Claim?  If so, we ask that you kindly provide a copy of same.  We also ask that you provide on a without prejudice basis copies of any medical reports that you may have with respect with to the injuries of your client.

We look forward to your response to these matters at your earliest convenience."

It is noticeable that although the endorsement on the writ contains no information to that effect, the solicitors understood that the writ related to an accident in which the respondent was injured.  Even more importantly, it relayed the appellants’ view that John and June Honnery had been erroneously joined as defendants.  Turning again to the affidavit of Mr Drummond, which includes considerable detail, it says nothing to discourage the drawing of the conclusion which appears from the correspondence to be attractive, that despite the paucity of information in the writ, both the defendants initially joined, John and June Honnery, and the appellants who have been joined in substitution for them, understood well enough what the claim related to and that it was the appellants, not John and June Honnery, who should have been joined.

Mr Bain pointed out that there is a difference between the Victorian rule considered in Bridge and that with which this Court is presently concerned;  the Queensland rule imposes what is on the face of it a stiff test, referring to reasonable doubt as to the identity of the person intended to be sued.  On the other hand, it does not seem right to take a narrow or pedantic approach to applications of this kind;  referring to the Victorian rule, the leading judgment in Bridge says (260, 261):

"Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation.  It is proper to give it to the widest interpretation which its language will permit".

Here, if the person who drafted the endorsement on the writ had taken the trouble to identify the accident to which the action relates, there could hardly have been room for argument about the application of the rule, on these facts.  The vagueness of the endorsement has left it open to Mr Bain to argue, as he has done, that the evidence below did not exclude the possibility that, considering the circumstances objectively, there was significant room for doubt as to the identity of the persons intended to be sued. 

The question raised is entirely a factual one;  it does not appear to us that there is any good ground for rejecting the finding of the primary judge (p. 8 and 9 of his Honour’s reasons) that "relatively soon after the institution of proceedings [the appellants] were aware that they were the persons who answered the description of the persons the [respondent] was intending to sue in the action" and that John and June Honnery were also aware of that.  It is but a short step from that finding to adoption of the view that the test in O. 32 r. 1(3) was satisfied.

The appeal must be dismissed with costs.