Howard v WorkCover Queensland[2000] QCA 31

THE CHIEF JUSTICE:  The respondent issued a writ on 7 August 1998 claiming damages in respect of injuries he sustained in the course of his employment on 17 August 1995.  The endorsement on the writ asserts that the respondent's employer was Deville Furniture Pty Ltd, "which company has ceased to exist".  In these circumstances the respondent named as the defendant WorkCover Queensland, a course allowed by section 186 subsection 1 of the Workers' Compensation Act 1990; that is, where a relevant corporate employer has ceased to exist.

The facts are these.  The respondent swears that he was employed by a company named Deville Furniture Pty Ltd.  A company with that name, numbered ACN 062 091 187, was registered on 10 October 1993.  On 12 September 1994 the name of that company was changed to Delongville Holdings Pty Ltd.  The respondent's group certificates for the years ended 30 June 1995, 1996, and 1997 show, however, that he was employed by another company with that same name but numbered ACN 065 376 329. 

That company had been registered on 29 June 1994 under the name Skivawood Pty Ltd.  Its name was changed to Deville Furniture Pty Ltd on 12 September 1994; that is, prior to the date of the respondent's injury.  Mistakenly relying on the search result with respect to company ACN 062 0091 187, recording a de-registration on 24 April 1996, the respondent's solicitor commenced the respondent's action on 7 August 1998 against WorkCover Queensland. 

Subsequently realising the error he had made and that the respondent was in truth employed by Deville Furniture Pty Ltd, ACN 065 376 329, as at the date of his injury, that company subsisting as at the date of the commencement of the action, the respondent successfully obtained an order under Order 32 rule 1 subrule 3 of the then applicable Rules of the Supreme Court, correcting the name of the defendant such that it became Deville Furniture Pty Ltd, ACN 065 376 329.

There is now, on appeal, challenge to the correctness of the learned Judge's having allowed that amendment.  The written outlines of submission concentrate on whether such an order was warranted by that rule in the context of Bridge Shipping Pty Ltd v. Grand Shipping SA (1991) 173 Commonwealth Law Reports 231, and other cases.  The Rule of Court provides:

 "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 likely 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."

In Bridge Shipping with relation to a similar provision in the Victorian Supreme Court Rules McHugh Justice said this:

 "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 (Holmes v Permanent Trustee Company of New South Wales (1932) 42 Commonwealth Law Reports 113-119).  It should be interpreted to cover not only cases of misnomer, clerical error, or 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."

In the endorsement on his writ the respondent asserted a claim against his employer.  Mistakenly believing his employer had ceased to exist he sued WorkCover Queensland.  In doing that he relied on section 186 of the Workers' Compensation Act which provided that in such circumstances the worker may sue WorkCover Queensland "as if the Board were the employer".  The Board is WorkCover Queensland.

Accordingly the respondent is to be taken by force of the statute to have sued WorkCover Queensland as if that body were his employer.

WorkCover Queensland is statutorily identified with the respondent's employer.  Because of that statutory fiction it is therefore possible to say that the respondent always sought to sue his employer, but wrongly identified it in the action.  The case does therefore fall, in my view, within the last sentence of the passage quoted above from the judgment of Justice McHugh.

Mr Stenson, who appeared for the appellant, raised discretionary considerations relating to the granting of relief under Order 32, focusing on material which the respondent and his solicitor had disclosing the correct identity of the employer.  But the learned Judge, aware of that material, nevertheless considered it an appropriate case in which to grant relief, and that course was open to him. 

There is, in my opinion, no ground for disturbing the order by reference now to such discretionary considerations.  I would therefore dismiss the appeal, with costs to be assessed.  I will now invite Justice Thomas to deliver the second judgment.

THOMAS JA:  This is an appeal by WorkCover against an interlocutory order substituting the respondent's employer, Deville Furniture Pty Ltd, as defendant in lieu of WorkCover.  WorkCover was originally sued, before the limitation period expired, under section 186 of the Workers' Compensation Act 1990 in the belief that Deville Furniture Pty Ltd had ceased to exist. 

For the sake of simplicity I will use only the first three digits of the ACN numbers of the two companies that were concerned in the employment of the respondent.

At all material times since the respondent commenced his employment as a cabinetmaker in February 1994 he was employed by Deville Furniture Pty Ltd.  It emerges, however, that in fact he was consecutively employed by two companies of that same name, the first with ACN number commencing with the digits 062 and the second with ACN number commencing 065.  By reason of a financial reconstruction in September 1994, the full details of which are not now known, the original company's name was transferred to a shelf company controlled by the original company's financial advisers.

The original company at the same time changed its name to Delongville Holdings Pty Ltd, ACN 065.  The group certificates in evidence suggest that the new company, which had the same name as the old, carried on the old business, including the employment of the respondent.  At all material times so far as the respondent was concerned he was employed by a company named Deville Furniture Pty Ltd.  He was correct in this.  The original Deville Furniture Pty Ltd did indeed cease to exist by being deregistered on 24 April 1996.  The date of the injury sued on was 17 August 1995.  It follows that the appropriate defendant was Deville Furniture Proprietary Limited 065, not Deville Furniture Proprietary Limited 062 or its statutory substitute WorkCover. 

The question is whether the substitution of this defendant should now be permitted. 

There is not a speck of prejudice on the part of WorkCover which was at all material times master of the litigation on behalf of the respondent's employer.  WorkCover's records showed that an accident had occurred at work whilst he was employed by Deville Furniture Proprietary Limited as was the fact.  In my view, the exercise of a discretion by the learned chamber Judge under Order 32 rule 1(3) was appropriate and consistent with the proper application of Bridge Shipping Proprietary Limited v. Grand Shipping SA (1991) 173 CLR 231.  I agree generally with the reasons given by the Chief Justice for reaching that conclusion.  I would, however, be prepared to go further than this.  In my view it would equally have been appropriate for the learned Judge to have made an order or substitution under Order 3 rules 11 and 13 of the Rules of Court as they then were.  Had that power been invoked it would have been additionally necessary to include a further direction in the order that the proceedings be deemed to have begun upon the date when the writ was filed.  However such a direction is not necessary if the power given by Order 32 rule 1 is relied on.

I would add that relief in the present situation would readily be available under UCPR 376 subrule (2), and also under UCPR rule 69(2)(g).  If this Court chose to treat the appeal as a re-hearing, as it would be entitled to do under rule 765 of those rules, such an order would be quite appropriate.  I would be prepared to make such an order if it were not able to be made under Order 32 rule 1 or Order 3 rules 11 and 13. 

I agree with the order proposed by the Chief Justice.

THE CHIEF JUSTICE:  I agree also with those additional observations by Justice Thomas and can not help but observe that they demonstrate the flexibility of the progressive modern rules this Court has now adopted.

THE PRESIDENT:  The appellant relied upon the principles espoused in Bridge Shipping Pty Limited and Grand Shipping SA (1991) 173 CLR 231.  In that case the defendant issued a third party notice against the owner of the ship in which the goods were carried and damaged when it should have issued a notice against the company which was, in fact, the carrier of the goods.  That case is distinguishable on its facts from the case here, as here it was always intended that the plaintiff sue his employer, but he was mistaken as to the name of the employer.  That mistake brought into play section 186 of the Workers' Compensation Act (1990) which allowed the respondent to sue WorkCover as if it were the employer. 

I agree with the reasons given by the Chief Justice and with the reasons given by Justice of Appeal Thomas, and with the order proposed by the Chief Justice.

THE CHIEF JUSTICE:  The appeal is dismissed with costs to be assessed.

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