Higgins v Ziebell[1998] QDC 126

CIVIL JURISDICTION

JUDGE McGILL SC

and

BRISBANE

DATE 6/4/98

JUDGMENT

HIS HONOUR: In this matter a plaint was issued on 11 December 1997 out of the District Court at Bundaberg on behalf of the plaintiff, Margaret Higgins, against Allen Leslie Ziebell and Irene Charon Ziebell claiming damages for negligence, breach of contract or breach of statutory duty.

The plaint alleges that, at the relevant time, the defendants carried on business as cruise operators under the name, “Barrier Reef Cruises” and that by a contract entered into between the plaintiff and the defendants on 10 January 1995 the defendants agreed to provide a return passage two days later on the MV Lady Musgrave from the mainland to Lady Musgrave Island.

It further alleges that the defendants have, to some extent, control of the vessel and that the master of the vessel was the servant or agent of the defendants. It alleges that there was negligence in various respects, either by the operators of the vessel or by the master, or in the alternative that there was a breach of contract on the part of the operators or in the further alternative that there was a breach of statutory obligations under the Workplace Health and Safety Act 1989 on the part of the defendants as employers, presumably of the master, or as the persons in control of the premises for the purposes of section 6(i) of that Act. It is not actually alleged in the plaint, so far as I can see, that the defendants were the owners of the vessel.

There is evidence from the plaintiff's solicitors that prior to going on this trip the plaintiff and her husband purchased a ticket but that ticket was collected when the plaintiff and her husband went on board the vessel to undertake the trip. The plaintiff alleges that she was injured in the course of that trip when the vessel struck rough weather when returning from the island, as a result of which she suffered an injury to the right ankle which required hospitalisation and surgery.

It is further alleged that the plaintiff's husband attended at the office of the ship and asked to have the ticket or a copy of the ticket back as evidence but this request was refused. In these circumstances, it is not of much assistance for the respondent to argue that the ticket in fact correctly identified the name of the operator of the vessel as Great Barrier Reef Tourist Corporation Pty Ltd and that it was operating under the business name Lady Musgrave Barrier Reef Cruises.

What the plaintiff did retain was a brochure which is Exhibit A to her affidavit filed 6 March 1988, which is headed in large type “Lady Musgrave” which is clarified as a reference to the vessel, although it has the dual significance of identifying the island to which the excursion was to take place. On the left-hand side of the brochure are the words “Lady Musgrave Barrier Reef Cruises” followed by an address and telephone number which are the only features identifying anything about the person responsible for the brochure or the outing.

The plaintiff's solicitor, shortly after the accident, wrote to “The Proprietors, Barrier Reef Cruises,” at the address stated on this brochure, identifying that his client the present plaintiff had sustained an injury on 12 January aboard MV Lady Musgrave and foreshadowing a claim for damages as a consequence of that injury. He has deposed to the fact that he interpreted what was said on the brochure as identifying “Barrier Reef Cruises” as the business name, since the words “Lady Musgrave” are in a different type and located slightly above the other words.

It is plausible, having looked at the brochure, that someone could make this mistake. The letter which was sent did not produce any response from the operators of the cruise, and a further letter threatening litigation without further notice sent on 11 April 1995 prompted a response from solicitors who indicated that they acted for the owners of the vessel.

That letter is headed “Barrier Reef Cruises - Margaret Higgins” which picks up the two names on the two letters to the client or at least on the two letters to “Barrier Reef Cruises.”

It says that those two letters have been handed on. It does not draw attention to the error in identifying the name of the business, nor does it disclose the name of the company which operated that business. However, it seeks particulars of the claim which were provided by a letter of 21 April 1995 which is also exhibited.

That letter used the same heading again and refers to the advice that the other solicitors acted for the owner of “Lady Musgrave”. It gives details of the injuries and complains of the vessel having been taken out in a storm in circumstances where there was a lack of restraints for passengers.

In response the solicitors advised that their client denied liability. Again there is no reference to the correct identity of the owners of the vessel.

The plaintiff's solicitors conducted the business name search on the name “Barrier Reef Cruises” which indicated that the two present defendants were the registered proprietors of that name, although that registration had expired. I should say that their address is given at Cairns in the State of Queensland.

The plaintiff's solicitor did not regard the expiration of the registration as particularly suspicious, and in due course a Plaint was issued. The Plaint was not issued until towards the end of the limitation period, although the explanation offered for this is that there was some delay in determining the ultimate extent of the plaintiff's disability as a result of the injury.

Her ankle was initially treated with a steel plate and pins which were to remain in place for a period of twelve months. In March 1996 the plate and pins were removed. In November 1996 her surgeon was not prepared to give an assessment of residual disability and suggested that that be postponed until the following March.

It was not until April 1997 that there was some final report, and there was then an accumulation of material that was sent to counsel in July 1997. That produced a draft plaint in November 1997.

An attempt was initially made to serve the plaint on the existing defendants which was unsuccessful and when attempts were being made to locate them, the suggestion was made that the ship registry be searched for the name of the vessel.

Up until then the plaintiff's solicitor had been unaware that there was such a thing as a ship registry in Queensland. It appears that it was as a result then of a search that the company was identified, and it was realised that it was necessary or appropriate to make an application to substitute that company as defendant, which application was filed on 5 March 1998. It was originally made returnable in Bundaberg but was transferred to Brisbane for convenience.

The first issue is the basis of the Court's jurisdiction to make the order. On the face of it any proceedings now against the respondent would be statute barred since more than three years has elapsed since the plaintiff's injury.

When a defendant is added or substituted the amended plaint is to be served on that defendant unless service is waived, and the proceedings are deemed to be begun only on such service being effected unless the Court otherwise orders: rule 25.

There would not be much point, however, in ordering substitution of the company as defendant if the only effect was to prompt a successful defence under the Limitation of Actions Act. The summons acknowledges this by seeking an order under rule 25 that the action be deemed to have commenced as at the date of the filing of the plaint.

There is authority that an order under rule 23 should only be made to add a defendant and deprive that defendant of a defence under the Limitation of Actions Act if there are special or peculiar circumstances justifying that course. See Heywood v. Darling Downs Aircraft Pty Ltd [1993] 2 QDR 153, Lynch v. Keddell [No 2] [1990] 1 QDR 10, Grother v. Maritime Timbers Pty Ltd [1991] 2 QDR 128.

However, there is another provision which is relevant namely order 32 rule 1(3) of the Supreme Court Rules which are made applicable to the District Court by Rule 4 of the District Court Rules: Jiminez v. Jayform Contracting Pty Ltd [1993] 1 QDR 610. That rule provides relevantly that an amendment to correct the party may be allowed notwithstanding the expiration of any relevant period of limitation if the Court thinks it just to do so, provided that the Court 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 identify of the person intended to be sued.

The applicability of that rule or the scope of that rule was enlarged somewhat in consequence of the decision of the High Court in Bridge Shipping Pty Ltd v. Grand Shipping SA [1991] 173 CLR at 231, which was held to be applicable to the Queensland Rule in Jiminez and more recently by the Court of Appeal in Honnery v. Mackenzie, Appeal 12 of 1997, 16 December 1997.

That decision emphasises that it is necessary to show both that the mistake was not misleading and that it was not such as to cause any reasonable doubt as to the identity of the person intended to be sued. These must be additional to the requirement that it be a genuine mistake.

As to that I am satisfied on the evidence that it was a genuine mistake, a mistake made in the interpretation of the brochure or leaflet which put the plaintiff's solicitors on track of Barrier Reef Cruises as the relevant business. Nothing which occurred thereafter would have made them realise their mistake until after the plaint had been issued and there were difficulties in serving the existing defendants.

As to the other requirements, the decision of the Court of Appeal in Honnery points out that in that case if the writ had identified the accident to which the action related there could hardly have been room for argument about the application of the rule.

In the present case, of course, the plaint set out the particulars of the facts on which the claim was based to the extent that I have identified and therefore clearly indicates who is intended to be sued. It would be apparent to anyone who was aware of the true identity of the operator of the particular cruise that it was that true operator who was intended to be the defendant.

In those circumstances I think that the other requirements that the mistake was not misleading and did not cause any reasonable doubt as to the identity of the person intended to be sued have also been made out. It is not apparent from the terms of that rule or from the authorities that it is necessary for the correct defendant either to be aware of the proceedings or to be aware of the claim prior to the expiration of the limitation period.

The question of whether the plaint is misleading seems to one which has to be determined by the Court by reference to the true situation. However, in fact, in this case the letters sent to Barrier Reef Cruises at the address shown on the brochure came to the attention of the company and the company's solicitors so that both were aware shortly after the incident which gave rise to the claim of the fact of the incident and the intention of the plaintiff to claim in respect of it.

It does not appear that there was any further contact prior to or indeed after the plaint was issued until the need for this application arose, which is a little surprising as I would have thought that the obvious course when issuing the plaint was to inquire if the solicitors had instructions to accept service. No doubt if that step had been taken the error as to the identity of the defendant would have emerged.

I think that in the present case the relevant mistake was one within the scope of the decision in Bridge Shipping that is a mistake as to the identity of the proprietors of the business operating the Lady Musgrave on the relevant day and that it is therefore within the scope of that rule. The question therefore is whether it is just to make the order. That involves the exercise of the discretion by the Court and involves consideration of all of the relevant circumstances.

There was some issue taken in the affidavits as to whether the plaintiff's solicitors were in some way misled by the terms in which the respondent's solicitor wrote and the failure of the respondent's solicitors to identify the name of the owner of the vessel. I do not think that the letters can be characterised as being actually misleading in the circumstances, although they were not particularly informative. It is perhaps unfortunate that they were not more informative, because had that been the case these difficulties could have been overcome or avoided.

I think it is simply that once the original mistake was made as to the name of the operator, nothing occurred to indicate that this was a mistake and the fact that there had been correspondence with the solicitors acting for the owner of the vessel, or the solicitors who said they acted for the owner of the vessel, in circumstances where the error was not disclosed or the fact of the error did not emerge might have led the plaintiff's solicitors into a false sense of security as to the identification of the correct defendant.

I think that there was a reasonable explanation for the timing of the issue of the plaint. It is appropriate to have some details of the medical condition of the plaintiff in order to determine the correct jurisdiction in which to sue and in order to be in a position to respond to the requirements of rule 149A, or the equivalent in the Supreme Court if one is going to sue there, at the time indicated by the rule.

One matter which has been raised on behalf of the respondent, however, is that two witnesses to this event have disappeared. They are identified as Paul Tucker and Ken Scott and are said to have left the area of Bundaberg. Unfortunately, the precise relevance of these individuals is not made clear in the affidavit material nor is the precise time when they disappeared or at least where their whereabouts ceased to be known to the respondent. It is believed that Mr Scott may have left the area in late 1995 but the time of the departure of Mr Tucker is unknown.

The significance of these witnesses is not made clear but I suppose they would be concerned to say something about the prevailing conditions. In any case, it is not clear that they disappeared before the respondent was given notice of the intention to make this claim, so that the respondent had the opportunity to investigate the matter and to obtain statements from them if it wished to do so.

As at the stage when the correspondence ceased in 1995, there had been a threat to issue proceedings without a further notice, a further letter setting out some details of the claim, particularly in relation to quantum, and a blanket denial of liability with in effect an invitation to sue. In those circumstances the respondent and its solicitors could reasonably have expected that nothing further would occur until the plaint was issued and that could easily not have occurred until almost three years after the date of the accident. Indeed, it might not have been served for a further 12 months.

In those circumstances, there was no reason for the defendant to postpone investigation of the matter and proofing witnesses and if witnesses subsequently disappeared, so the defendant has not their evidence available to it, it seems to me it really has only itself to blame.

In the circumstances of this case there is the further consideration that this matter was identified fairly soon after the limitation period expired and the plaint, I assume, was served in March 1998 on the correct company so that the extension required to the limitation period, or the de facto extension to the limitation period involved in substituting the company for the defendant, is not very great.

There is no reason to think that the mere delay in bringing the matter to trial would prejudice the defendant's capacity adequately to present its case. I think that on the whole it is appropriate to conclude that it is just to substitute the company as defendant.

I therefore order that Great Barrier Reef Tourist Corporation Pty Ltd be substituted as defendant in the plaint and the plaintiff have leave to amend the plaint to reflect this. I further order that the action be deemed to have been commenced as against that defendant on 11 December 1997. I should say that it appears from the decision in Heywood and rule 25 that there is jurisdiction to make such an order.

...

HIS HONOUR: The defendant is entitled to protection in respect of the failure of the plaintiff to be in a position to deal with the matter properly and on proper material when it came on before me in Bundaberg but otherwise the appropriate course is to order that the costs be costs in the cause. That, I think, is adequately dealt with by ordering the plaintiff to pay the defendant's costs of today in any event and otherwise order that the costs of both parties including reserved costs be costs in the cause.