Gilbert v Mimcove Homes Pty Ltd
[1997] QDC 145
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- Unreported Judgment
- Gilbert v Mimcove Homes Pty Ltd[1997] QDC 145
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Gilbert v Mimcove Homes Pty Ltd[1997] QDC 145
Gilbert v Mimcove Homes Pty Ltd[1997] QDC 145
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | No. 504 of 1996 |
BETWEEN
LAURA ELLIS GILBERT | Plaintiff |
AND
MIMCOVE HOMES PTY LTD | First Defendant |
AND
VAMLODGE PTY LTD | Second Defendant |
AND
KENNETH PETRR BREWER | Third Defendant |
REASONS FOR JUDGMENT - JUDGE BOULTON
Delivered the 13th day of June 1997
Catchwords: | RSC o.32 r.1(3) r.4 District Court Rules. Mistake in name of party. Continuing doubt as to whether individual or his company appropriate party. Both substituted. |
Counsel: | Forrest for applicant Plaintiff Campbell for Respondent |
Solicitor: | C.W. Hooper and Hooper for Plaintiff Quinlan, Miller, and Treston for First and Second Defendants |
Hearing Date(s): | In the District Court at Brisbane on 21 May and 13 June 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | No. 504 of 1996 |
BETWEEN
LAURA ELLIS GILBERT | Plaintiff |
AND
MIMCOVE HOMES PTY LTD | First Defendant |
AND
VAMLODGE PTY LTD | Second Defendant |
AND
KENNETH PETER BREWER | Third Defendant |
REASONS FOR JUDGMENT - JUDGE BOULTON
Delivered the 13th day of June 1997
This is an application to substitute “Kenneth William Brewer” for the third defendant named in the proceedings “Kenneth Peter Brewer” and further, to add a fourth defendant, Kencrete Pty Ltd A.C.N. 011074356.
The plaintiff claims to have suffered injury when she tripped over some steel reinforcing on the footpath outside 86 Wynyard Street, Cleveland on 17 February 1993. The plaintiff is an elderly lady, and according to the plaint, she suffered, amongst other things, a broken femur as a result of the incident. Her solicitors made inquiry as to the identity of the concreting sub-contractor who was reported to be “Ken Brewer”. The solicitors made inquiries through electoral sources and the Queensland Building Authority and found that the only Ken Brewer in Queensland was a Kenneth Peter Brewer of Alligator Creek. This person was then named in the plaint issued on 16 February 1996.
Attempts to locate Mr. Kenneth Peter Brewer for service were successful in locating a Kenneth William Brewer and this person was served on 26 February 1997 at 1 Vine Street, Redland Bay. On service, Mr Brewer admitted being the concreting sub-contractor at the relevant time and place. No mention was made of the correct spelling of his name which would seem to have been “Brauer”.
Subsequent inquiries revealed the existence of a company Kencrete Pty Ltd A.C.N. 011074356, having as its director a Kenneth William Brauer (pronounced “Brewer”) who resides at 1 Vine Street, Redland Bay. The principal activity of this company, according to the extract, Exhibit DLL1 to the affidavit of Darren Lee Lewis filed 12 May 1997, is “form setting and concreting” Its principal place of business is 1 Vine Street, Redland Bay.
The plaintiff's solicitors have been unable to determine whether Kenneth William Brauer is the appropriate defendant, or the company Kencrete Pty Ltd. The question has at all times been one of identity of the concreting subcontractor.
In Jiminez v. Jayform Contracting Pty Ltd (1993) 1 Qd.R. 610, the Court of Appeal held that O.32 r.1(3) of the Supreme Court Rules applies in the District Court. The joint judgment of Davies and McPherson JJ at p.614 refers to the reasoning of the High Court in Bridge Shipping Pty Ltd v. Grand Shipping S.A. (1991) 173 C.L.R. 231 concerning a Victorian Rule of Court which had the same effect.
The High Court held:
“... 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 260, 234.”
The Court of Appeal went on to apply Lynch v. Kedell (No.2) (1990) 1 Qd.R. 10 in ordering that proceedings be deemed to have commenced when the limitation period was still running.
In the present instance there is the added complication that the plaintiff does not know whether Kenneth William Brauer or Kencrete Pty Ltd is the correct defendant. The response of Mr. Brauer to the process server is inconclusive. There has been no more satisfactory response made. It would be a waste of time and expense for the plaintiff to substitute one and then have the prospect of coming back in the future for a further substitution.
Reference is made to a decision of the Full Court of Queensland Grotherr v. Maritime Timbers Pty Ltd (1991) 2 Qd.R 128 which refers to the joinder of defendants notwithstanding the expiry of a limitation period pursuant to O.3 rr. 11 and 13 of the Rules of the Supreme Court, and in particular the comments of de Jersey J, citing the comments of the Chief Justice in Lynch v. Keddell (No. 2) supra at p. 15:
“Joinder is permitted only in a ‘very limited class of case’ ... Any uncritical widening of the class of the exception would involve an unjustified intrusion into the area intended to have statutory protection, thereby subverting the statute itself.”
de Jersey J at p. 144 concluded:
“In my opinion, these circumstances, seen together, were not ‘peculiar’ or ‘special’ such as would warrant placing this case into the ‘very limited’ class of case’ in which the court may properly deny a proposed party the benefit of an accrued limitations defence. The finding that they were was not open, in my respectful view. They were not so out of the ordinary as to warrant denying the appellant its right to rely on the statute. It is simply, to my mind, a case where the plaintiff, having received information relevant to a claim like this against the appellant, even expert confirmation about the possibility of a manufacturing deficiency, failed to follow it up within the limitations period, including not requiring, in timely fashion, the discovery which brought to light the document on which he now principally relies.”
In Hayward v. Darling Downs Aircraft Services Pty Ltd (1993) 2 Qd.R. 153, the Court of Appeal held that O.32 r. 1(3) does not authorise the joinder of a new party to an action, not in substitution for, but in addition to, a party originally named. On the view that I have taken above, however, the defendants being joined are in substitution for the present third defendant and cannot be properly described as additional parties. I therefore take the view that the plaintiff is entitled to succeed in the present instance under R.S.C. O.32 r.1. If I am wrong in this I would have regard to the following as being special or peculiar circumstances:
- (i)the situation where the plaintiff's solicitors were conducting inquiries for a Ken Brewer through electoral rolls, building authority...when the real name was Ken Brauer (pronounced Brewer);
- (ii)the rarity of the name in Queensland and the action of the solicitors in joining the only person bearing that name;
- (iii)the chance discovery of the name Brauer and the discovery - which could not have been made until that point was reached - of the company;
- (iv)the failure of Mr. Brauer to enlighten the process server as to the correct spelling of the name or of the existence of the company. Even at this point of time there has been no notification of the appropriate defendant's identify.
If it were necessary to do so, I would allow the application under this head as constituting special or peculiar circumstances.
I have been provided with a draft order and I make an order as per draft.