Gregson v Dovell Investments Pty Ltd
[2000] QDC 248
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- Unreported Judgment
- Gregson v Dovell Investments Pty Ltd[2000] QDC 248
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Gregson v Dovell Investments Pty Ltd[2000] QDC 248
Gregson v Dovell Investments Pty Ltd[2000] QDC 248
DISTRICT COURT OF QUEENSLAND
CITATION: | Gregson v. Dovell Investments Pty Ltd [2000] QDC 248 |
PARTIES: | PETER GREGSON (Plaintiff) v. DOVELL INVESTMENTS PTY LTD (Defendant) |
FILE NO/S: | Plaint 1617 of 1999 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 18 August 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 July 2000 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE – amendment – parties to actions – leave to substitute defendant and amend plaint after limitation period expired Bridge Shipping Pty Ltd v.Grand Shipping S.A. & Anor (1991) 173 CLR 231 Mannin Pty Ltd v. Metal Roofing and Cladding Pty Ltd (1997) NTSC 119 Bellis v. The Queensland Corrective Services Commission (Writ 940/94, Writ 3347/97, unreported, 6 November 1998, Mackenzie J) Draney v. Barry (1999) QCA 491 Jerome v. Hill (No. 54332 of 1998, unreported, 26 April 2000, Mackenzie J) |
COUNSEL: | Mr. Gray for the applicant Mr. Holyoak for the respondent |
SOLICITORS: | Hatzis & Associates for the applicant O'Maras Lawyers for the respondent |
- [1]By a plaint filed in this court on 28 April 1999, the plaintiff claimed against Dovell Investments Pty Ltd (Dovell) damages for personal injuries the plaintiff alleged he suffered on 2 May 1996.
- [2]In the plaint, the plaintiff alleged that Dovell was the registered proprietor of premises situated at Corner Pacific Highway and Murrays Road, Loganholme in the State of Queensland, Dovell carried on business as a Caltex Service Station at those premises, Dovell was the occupier of those premises, the plaintiff was a contractual entrant upon the premises in his capacity as a customer of Dovell, and Dovell owed him a contractual duty and a duty of care to ensure the premises were as safe for the intended purpose of entry as reasonable care and skill on the part of anyone could make them. Further, the plaintiff alleged that on 2 May 1996 between 6 p.m. and about 6.45 p.m. he had filled his motor vehicle with petrol, he was entering the shop at the premises to pay for fuel and as he was entering the shop he slipped and fell on a mat or tile situated at the entrance of the shop, thereby suffering personal injury, loss and damage. The plaintiff alleged this incident was caused by the negligence and/or breach of contract by Dovell, its agents and/or employees.
- [3]On 31 March 2000 the plaintiff filed this application seeking pursuant to r. 376 an order allowing an amendment to the plaint to provide that Dovell be replaced with Maggshire Pty Ltd and that para. 2(b) of the plaint be amended to show the defendant was the registered proprietor of premises situated at 1/5 Leda Drive, Shailer Park in lieu of the premises situated on the Pacific Highway and Murrays Road, Loganholme.
- [4]When the application first came on for hearing before me on 23 June 2000, the plaintiff in support of his application relied upon two affidavits by Mr. Campbell, a solicitor in the employee of Hatzis & Associates, Solicitors, filed herein on 31 March 2000 and 30 May 2000.
- [5]In the first of these affidavits, Mr Campbell states that on the date of the incident there were two Caltex Service Stations in close proximity to the Loganholme Hyperdome situated on the Pacific Highway at Loganholme. One of the service stations was on the southbound lane of the Pacific Highway situated on Leda Drive. The other was situated on the northbound side of the Pacific Highway at 3773 Pacific Highway, and described as being on the corner of Murrays Road and Pacific Highway, Loganholme. He states as a result of a telephone conversation he had with an employee of Caltex Australia Regional Marketing office he was advised that the Caltex Service Station on the northbound lane of the Pacific Highway situated at Murrays Road and the Pacific Highway in fact closed down on or about 30 August 1999.
- [6]Further, he states the plaintiff’s initial instructions to his firm was to the effect that he had been injured in the service station situated at the corner Pacific Highway and Murrays Road, Loganholme. Mr. Campbell states as part of the initial investigation of the plaintiff’s claim an incident report was obtained from Australian Petroleum Pty Ltd. A true copy of this report is Exhibit 1 to his first affidavit. Mr. Campbell states:
“The report simply provides the location as being Caltex 1046”.
Mr. Campbell states the plaintiff, as a result of a subsequent personal attendance upon the premises at the Pacific Highway and Murrays Road, Loganholme, advised that the service station was owned and operated by Dovell. He states as a result of a company extract of Dovell obtained on 16 July 1996, this provides that Dovell carried on its principal business at the corner of Pacific Highway and Murrays Road, Loganholme starting on 30 June 1994, its registered office was care of Ashley & Munro Pty Ltd, Sunnybank, and the directors were Ann Marie Dovell and James Lewis Dovell. Mr. Campbell in his affidavit refers to correspondence directed by his firm to the directors of Dovell care of Ashley & Munro Pty Ltd on 18 July 1996 advising that his firm intended to make a claim for personal injuries on behalf of the plaintiff as a result of the incident that occurred on 2 May 1996. In this letter the place where the plaintiff suffered his injuries is described as “the Caltex Service Station at 1046 Pacific Highway, Loganholme on 2 May 1996.” The reference on the letter is “AM:LJS:960445.” Mr. Campbell states that by letter dated 6 August 1996, Sydes & Associates, Loss Adjustors, acknowledged his firm’s letter of 18 July 1996 to the directors of Dovell and indicated that they would investigate the circumstances of the accident and upon receipt of instructions from their principals they would again contact his firm. That letter is Exhibit 4 to Mr. Campbell’s affidavit.
- [7]Mr. Campbell states in his affidavit no further response was received from Sydes and Associates. He states in order to protect the plaintiff’s interest, the plaint was filed in this court. He states a copy of the plaint was then served under cover of letter dated 28 April 1999 upon Dovell care of its registered office, Ashley & Munro Pty Ltd of Sunnybank. A facsimile dated 29 September 1999 from Mercantile Mutual Insurance (Australia) Limited was then received by his firm referring to a letter dated 21 September 1999 enclosing the plaint. This facsimile refers to “Our Insured: J & A Dovell T/as Caltex Hyperdome” and states “We note that the plaint advised the “premises” where the incident took place, as corner of Pacific Highway and Murrays Road, Loganholme" and “Our claim relates to a different location”. Mr. Campbell states as a result further investigations were undertaken of Caltex Australia Regional Marketing which confirmed that the service station situated on the northbound lane of Pacific Highway and Murrays Road, Loganholme had closed down on 31 August 1999. It was also confirmed that the Caltex Service Station situated at Leda Drive, Shailer Park, was also owned and operated by Mr. and Mrs. Dovell. As a result, further instructions were obtained from the plaintiff and he acknowledged that the injury which occurred on 2 May 1996 had occurred at Leda Drive, Shailer Park, Caltex Service Station, more commonly known as the Caltex Hyperdome Service Station. Mr. Campbell states a further inquiry by himself with Caltex Australia Regional Marketing office indicated that the Caltex Hyperdome Service Station was operated under the name Maggshire Pty Ltd. As a result of that information, he caused a search to be conducted of Maggshire Pty Ltd. That search provides that the directors of Maggshire Pty Ltd are again Ann Marie and James Lewis Dovell, that the principal place of business is the Caltex Hyperdome, Leda Drive, Loganholme, starting on 22 November 1996 and the registered office is again care of Ashley & Munro of Sunnybank. Mr. Campbell states his belief is that the directors of Maggshire are one and the same as the directors of Dovell.
- [8]In Mr. Campbell’s second affidavit, he states that confirmation has been obtained from Caltex Australia that Maggshire Pty Ltd had in fact operated the business known as the Caltex Hyperdome, Leda Drive, Loganholme, on 2 May 1996. Exhibit 3 to Mr. Campbell’s second affidavit is a copy of a letter from the Retail Business Manager of Caltex Australia notifying that Maggshire has been the incumbent franchisee at Caltex Logan Hyperdome Service Station, Leda Drive, Shailer Park since May 1993.
- [9]When I heard the application on 23 June 2000, I adjourned the application to enable the plaintiff to support the application with further evidence.
- [10]The further hearing of this application took place before me on 28 July 2000. On that occasion the plaintiff relied upon his affidavit filed herein on 11 July 2000, a further affidavit from Mr. Campbell filed herein on 11 July, 2000, a further affidavit from Mr. Campbell filed herein on 20 July 2000 and an affidavit from the plaintiff’s wife filed herein on 21 July 2000. Further, the applicant tendered as Exhibit 1 on the hearing, a copy of a map on which there is highlighted the locations of the two service stations. From this map it can be seen that the two service stations are located on the opposite sides of the Pacific Highway. One is located at the corner of Leda Drive and Pacific Highway and one can see that further south Bryants Road joins Leda Drive and Pacific Highway. The location of the other service station appears at the intersection of Murrays Road and Pacific Highway.
- [11]On the further hearing of the application on 28 July 2000, besides the plaint that the respondent had read on the hearing of the application on 23 June 2000, the respondent tendered three documents. The first is a copy of a letter to the plaintiff from Bennett and Philp, dated 20 June 1996. Bennett and Philp were the solicitors acting for the plaintiff before Hatzis & Associates acted for the plaintiff. The second is a copy of part of a statement from the plaintiff taken 13 June 1996. The third is a copy of part of a statement taken from the plaintiff’s wife on 13 June 1996. It is convenient to quote from these two statements at this point:-
“ Statement of Peter Ronald Gregson
taken 13 June 1996.
1.I am a married man born 25 October 1961.
- I suffered personal injuries in an accident which occurred at a Caltex Service Station, Pacific Highway at Loganholme on 2 May 1996.
- It is Caltex Station number 1046.”
“Statement of Karen Gregson
Taken 13 June 1996
1.I am the wife of Peter Ronald Gregson
2.I recall the second of May 1996. On that date Peter suffered personal injuries when he fell at the Caltex Station at Loganholme”.
- [12]In the plaintiff’s affidavit, he confirms he was injured as a result of a fall which occurred on 2 May 1996 when he sustained a fracture to the lateral malleolus of the left ankle. He states the fall took place at a Caltex Service Station which he refers to as the Caltex Hyperdome, and which he states is situated at Leda Drive off Bryants Road, Loganholme. He states he originally gave instructions in relation to this matter to Messrs Bennett and Philp, solicitors. He then gave instructions to Messrs George Hatzis and Associates to act on his behalf and signed an authority to Bennett and Philp transferring the file on about 3 July 1996. At that stage he had in his possession a copy of the incident report from Caltex which referred to the site of the incident/service station as being Site 1046. He also exhibits a copy of this incident report. He states he believes he provided this documentation to Messrs George Hatzis & Associates. He stated he also advised them that the site where the fall had occurred was known to him as Caltex Hyperdome and was situated at Bryants Road, Loganholme. Subsequently he received from George Hatzis and Associates, correspondence dated 18 July 1996. This is Exhibit B to the plaintiff’s affidavit. In the first part of this letter dated 18 July 1996, George Hatzis and Associates confirms that the plaintiffs instructions were being looked after by Ms. Alexandra Marks. Later in this letter, the plaintiff’s instructions are confirmed as follows (see p. 5):
“We confirm your instructions that the accident occurred on 2 May, 1996 when you slipped on a wet area at the Caltex Service Station situated at Bryants Road, Loganholme.”
The plaintiff states he originally provided a statement to Messrs Bennett & Philp in relation to this matter and therein the site of the accident is stated as “A Caltex Service Station, Pacific Highway at Loganholme”. The plaintiff states he attended upon Hatzis & Associates on 15 April 1998 when he again discussed the matter with Mr. Steven Hoskins. At that stage, further details were obtained in relation to whether there were mats available and the amount of water that was on the floor. Nothing was said in relation to the position of the Caltex Service Station. The balance of the interview with Mr. Hoskins on that date related to the economic loss that the plaintiff was experiencing as a result of the fall. He was subsequently sent a transcript of that interview for his perusal. The plaintiff states he further attended upon Hatzis & Associates on 20 April 1998. At that stage he firstly spoke to Mr. George Hatzis for a period of time and then to Mr. Steven Hoskins. The conversation that he had with Mr. Hatzis related to the fact that he had not been able for quite some time to provide instructions to him in relation to this matter. The reason being that the plaintiff had lost his son towards the end of 1997 and as a result he was deeply distressed and upset and had other concerns in his life apart from this action. The plaintiff states he had been advised, and Mr. Hatzis showed to him, a copy of the draft plaint at that stage, although he cannot specifically recall that. The plaintiff states he subsequently received under cover of correspondence dated 2 February 1999 a copy of the draft plaint. That letter is Exhibit C to the plaintiff’s affidavit. In this letter dated 2 February 1999, the following appears:
“Please find enclosed copy of draft plaint in District Court form … Please read the plaint carefully and note any area that you wish to correct or discuss.
Should you have any queries, please do not hesitate to contact Mr. Steven Hoskins of our office to discuss same.”
The plaintiff states that he was aware that there were two Caltex Service Stations in that area and he was aware that his fall had happened at the service station that is referred to as the Caltex Hyperdome which is on Leda Drive, Loganholme, off Bryants Road.
- [13]In Mr. Campbell’s affidavit filed on 11 July 2000, he states he has perused the plaintiff’s file and notes there is correspondence from Messrs Bennett & Philp, Solicitors, to the plaintiff on 20 June 1996. This letter thanked the plaintiff for his instructions to act on his behalf. Attached to that letter is a client information sheet dated 3 July 1996. Mr. Campbell exhibits a true copy of the client information sheet. The sheet provides next to the heading “Other Party” a handwritten notation “Caltex Service Station number 1046, Pacific Highway, Loganholme”. He states the next document of relevance on the file is a telephone attendance made on 16 July 1996 between someone at Caltex and it is believed Alexandra Marks on behalf of George Hatzis & Associates. That document is Exhibit B to this affidavit. It bears a date 16 July 1996. Next to the word “Other” there appears (a tick) and the word “Caltex”. The word “to” is circled. I infer that indicates this was a telephone call to Caltex. The balance of the document refers to the plaintiff and then appears the words “Dovell Investments P/L”. Mr. Campbell states that he can only presume that the name, Dovell Investments P/L, was provided by an employee of Caltex as a result of an inquiry made by Ms. Marks. Mr. Campbell states a company extract was then obtained on 16 July 1996 in relation to Dovell. As appeared from his first affidavit, this search shows the principal place of business of Dovell Investments Pty Ltd at that stage as being the corner of Pacific Highway and Murrays Road, Loganholme. Mr. Campbell states correspondence was then forwarded to the plaintiff dated 18 July 1996. It is an initial letter providing various information as is required by the Law Society. He notes under the heading “Your Instructions” as I have noted above the letter states with reference to the accident that it occurred “on 2 May 1996 when you slipped on a wet area at the Caltex Service Station situated at Bryants Road, Loganholme.” He states further correspondence was directed by Hatzis & Associates in obtaining various medical reports and then on 15 April 1998 the plaintiff attended upon Mr. Hoskins. Mr. Campbell notes that at no stage in the memorandum to file regarding that attendance was there any reference to the site of the accident. He confirms the plaintiff again attended upon Hatzis & Associates on 20 April 1998, seeing Mr. George Hatzis for a short period and then speaking with Mr. Hoskins. Mr. Campbell states that according to the memorandum to the file regarding that meeting on 20 April 1998, Mr. Hoskins told the plaintiff that the purpose of the meeting was to see that he was happy with the plaint and the plaintiff agreed. The entry on this memorandum is, “He said he basically was”. Further correspondence was directed to the plaintiff on 2 February 1999 enclosing the draft copy of the plaint. Further correspondence was then directed to the plaintiff on 22 March 1999 seeking a sum of $200 from the plaintiff to cover the filing fee of the plaint. Mr. Campbell states monies were subsequently received from the plaintiff and the plaint was filed.
- [14]Mr. Campbell in his affidavit filed on 20 July 2000 seeks to clarify some previous statements made by Mr. Campbell in his affidavit filed on 31 March 2000. Whereas in para. 5 of that affidavit he stated that the plaintiff had provided initial instructions to the effect that he was injured in the service station on the corner of Pacific Highway and Murrays Road, Loganholme, after a further perusal of the file he confirms that that was not the case. He states the plaintiff provided instructions to Hatzis & Associates to the effect that he was injured in the service station which he referred to as Caltex, Loganholme and which is situated at Bryants Road, Loganholme. With reference to para. 7 of his affidavit, he says that it was not the plaintiff who subsequently attended at the service station. The premises at which the person attended was in fact the service station situated at Bryants Road, more commonly referred to as the Caltex, Hyperdome. He states this request was made in November 1999 and was after proceedings had commenced. With respect to para. 11 of his affidavit in which he stated no further response was received from Sydes & Associates after their letter dated 6 August 1996, he states this is incorrect as there was further correspondence between Hatzis & Associates and Sydes and Associates. Mr. Campbell states on 29 May 1997 a letter was sent from Hatzis & Associates to Sydes & Associates referring to the letter from Sydes and Associates dated 6 August 1996 and advising that nothing further had been heard from them in relation to the question of liability. He states Sydes and Associates responded with a letter dated 16 June 1997 which was received by Hatzis & Associates on 18 June 1997. He states this letter deals with issues of liability and advises that liability was denied. He states a response was then directed to Sydes & Associates from Hatzis & Associates dated 7 July 1997. He states a response from Sydes and Associates dated 4 August 1997 was received by Hatzis & Associates on 5 August 1997. True copies of this correspondence are exhibited to Mr. Campbell’s affidavit.
- [15]Finally, Mrs. Gregson, the plaintiff’s wife, states that as a result of a request from her husband’s solicitors, Hatzis & Associates in or about November 1999, she travelled to the Caltex Service Station at Leda Drive off Bryants Road, Loganholme. She states she went to the service station with a view to trying to ascertain who ran the business there and what was the correct address of the business was. She states she knew this was the address because shortly after her husband got out of hospital and was still in plaster, she drove him to that service station for the purpose of taking some photographs. She states once inside she noticed that there was a framed business registration certificate behind the counter. She asked a blond woman wearing a name tag with “Anne” on it that she needed to know who was the registered owned of the business and the exact address. She states the lady responded that the address was 1 Leda Drive, Shailer Park, and then this lady asked Mrs. Gregson what did Mrs. Gregson need to know that for. Mrs. Gregson states she replied that the solicitors needed it. The lady then told Mrs. Gregson to tell the solicitors to call her. She gave Mrs. Gregson a business card and said she was too busy to help her at that time. Mrs. Gregson left and provided the information to Hatzis & Associates. The business card is exhibited to Mrs. Gregson’s affidavit. On this business card appears the names “Jim and Ann Dovell”. The description on the business card is Caltex Logan Hyperdome, Leda Drive, Shailer Park.
- [16]The correspondence passing between Hatzis & Associates and Sydes & Associates describes the matter in the correspondence by reference to Mr. Gregson and Dovell Investments Pty Ltd. The letter from Sydes and Associates to Hatzis & Associates dated 16 June 1997 is a response to the inquiry made by Hatzis & Associates whether liability is in issue. Sydes and Associates go on to say:
“1.It was a wet day and the forecourt of the service station was wet.
- In consequence a mat had been placed inside the entrance to the sales office on which entrants to the sales office could wipe their feet.
- Shortly before your client suffered his fall the floor between the mat and the cash register had been mopped dry.
- Apart from the observations of staff in the sales office an independent witness has supplied a statement that your client was observed to walk hurriedly into the sales office, turn quickly to the left without pausing to wipe his feet on the mat provided and on stepping on to the vinyl flooring, had slipped and suffered his fall.
Under the circumstances, it can be demonstrated that the proprietors of the service station had discharged their duty of care and accordingly, liability to your client is denied.”
Then in the letter from Sydes and Associates to Hatzis & Associates dated 4 August 1997 the following appears:
“It was a wet evening when your client suffered his fall. For that reason a mat had been placed just inside the entrance door way for patrons to wipe their feet and there was also a notice placed called on patrons to exercise caution because of the wet floor.
Clearly, your client disregarded the warnings and if another patron had also fallen, which is not admitted, then it would indicate that that patron had also failed to exercise reasonable care on his or her behalf under the weather conditions then prevailing.
On the other hand, dozens of patrons who had entered the service station to pay for purchases had clearly negotiated their way safely to the console in order to settle their accounts.
The denial of liability is maintained and any action initiated will be strenuously defended.
- [17]I also refer to the incident report to which reference has already been made regarding the location as “Caltex 1046”.” This report also provides “service station ID No. 1046” and the date 2 May 1996. The time is stated 6.45 p.m. Then there is an entry regarding details of incident:
“Gentleman walked through front door on to mat and slipped on wet floor”.
Thereafter follows Mr. Gregson’s name and his address and his phone number. There is also an entry regarding the injury he has suffered “Broken/or severely damaged ankle”. Then follows references to a witness, Sheryl Casson and her phone number, and it would appear an address. There are two phone numbers and next to one of these phone numbers also appears “Ray Norris, son”. The report also refers to an ambulance and that it was apparently reported to “Linda Farnsworth”. The name of the person compiling the report is also stated as Dorothy Tully.
- [18]Counsel for the plaintiff sought to rely upon Rules 69, 74, 375 and 376 of the Uniform Civil Procedure Rules and s.81 of the Supreme Court of Queensland Act 1991 (the Act) to support this application.
- [19]Rules 69(1), 69(2)(a)(iii), 69(2)(a)(iv) and 69(2)(g) provide as follows:
“69(1)The court may at any stage of a proceeding order that-
- (a)A person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or
- (b)any of the following persons be included as a party –
- (i)a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
- (ii)a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
69(2)However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies –
- (a)the new party is a necessary party to the proceeding because –
…
- (iii)the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or
- (iv)the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order;
…
- (g)for another reason the court considers it just to include or substitute the party after the end of the limitation period.”
- [20]Rule 74 only applies if an order is made changing or affecting the identify or designation of a party.
- [21]Rule 375 provides as follows:
“[r.375] Power to amend
375(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or a document in a proceeding in the way and on the conditions the court considers appropriate.
- (2)Subject to rule 376, the court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.”
- [22]Further, Rules 376(1), (2), (4) and (5) provide as follows:
“376(1)This rule applies if, in a proceeding, an application for leave to make an amendment is made after the end of a relevant period of limitation current at the date the proceeding was started.
- (2)The court may give leave to make an amendment correcting
the name of the party, even if it is alleged that the effect of the amendment will be to substitute a new party, if –
(a)the court considers it appropriate; and
(b)the court is satisfied that the mistake sought to be corrected –
(i)was a genuine mistake; and
(ii)was not misleading or such as to cause any reasonable doubt as to the identify of the person intending to sue or intended to be sued.
(3) …
(4)The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action, if –
- (a)the court considers it appropriate; and
- (b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
(5)This rule does not limit the court’s powers under rule 375.”
- [23]Finally, s. 81 of the Supreme Court of Queensland Act 1991 provides as follows:
“(1)This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.
- (2)The court may order an amendment to be made, or grant leave to a party to make an amendment, even though –
- (a)the amendment will include or substitute a cause of action or add a new party; or
- (b)the cause of action included or substituted arose after the proceeding was started; or
- (c)a relevant period of limitation, current when the proceeding was started, has ended.
- (3)This section applies despite the Limitation of Actions Act 1974.”
- [24]I was referred to Jerome v. Hill (No. 5.4332 of 19989, unreported, 26 April 2000, Mackenzie J) in which His Honour ordered a party to be joined to an action as a fourth defendant after the limitation period had expired. His Honour observed that r. 69(1) provides that a court may at any stage of a proceeding order that a person whose presence before the court is necessary, or desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute in the proceedings be included as a party. He also noted that pursuant to r. 69(2) the court is not to include or substitute a party after the end of a limitation period unless:-
“(g) for another reason the court considers it just to include or substitute the party after the end of the limitation period.”
- [25]In Jerome His Honour said at para. [13]:
“Under the present rule a judgment must still be made as to what is just in the circumstances of the individual case, but the discretion under r. 69(2)(g) is not as constrained as it formerly was.”
His Honour noted that it was open to question whether such relaxation is philosophically sound since it increases the tension with the principle that the operation of a statutory limitation period ought not to be lightly dispensed with. But the rule, he said, must be applied according to its tenor.
- [26]His Honour did not in Jerome deal with what limitations, if any, were to be applied if the source of power to substitute a party for an existing party was sought pursuant to r. 69(2)(a)(iii) or r. 69(2)(a)(iv). However, as His Honour said r. 69(2)(g) must be applied according to its tenor I consider r. 69(2)(a)(iii) and r. 69(2)(a)(iv) should also be applied according to their tenor.
- [27]Although r. 69(1)(b) speaks of “including” a party, r. 69(2) uses the expression “include or substitute” a party. I am prepared to accept that r. 69 can be invoked by an applicant seeking to remove a party and substitute another party for that party.
- [28]Notwithstanding these observations on my part, as the plaintiff requires an amendment in the circumstances of these proceedings to amend the address where the plaintiff alleges he fell, as well as leave to make an amendment to correct the name of Dovell, I do not consider the provisions of r.69 can be applied on this application. Similar considerations were discussed in Lynch v. Keddell (No.2) (1990) 1 Qd.R.10 by Macrossan CJ at p. 13.
- [29]In Brisbane South Regional Health Authority v. Taylor (1996) 186 Ch.R. 541 at 553, McHugh J said:
“…I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the genera rule; and extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts on an individual case.”
In my opinion, McHugh J’s statement is reflected in the tests contained within r.69 as to how the power to make an order should be exercised.
- [30]I was also referred to Draney v. Barry (1999) QCA 491. In Draney v. Barry, the Court of Appeal in the course of hearing an appeal from a refusal to allow amendments to a pleading, the effect of which was submitted would add a new cause of action otherwise time barred, if allowed, r. 375, and r. 376 of the Uniform Civil Procedure Rules were considered as was s. 81 of the Act. McMurdo P agreed with Pincus JA that when applications do not come within r. 376(4)(b), the court nevertheless has a general discretion under s. 81 of the Act to add a cause of action out of time. However, the President added
“In exercising that discretion the court would be cognisant of UCP r. 376(4); the fact that the exercise of the discretion would effectively evade the provisions of Limitation of Actions Act 1974, and that the legislature intended the UCP Rules to provide a consistent framework for all the courts. Good reasons would therefore be required to justify the exercise of the discretion in favour of such an amendment”.
- [31]With reference to r.375 and r.376, Pincus JA expressed his view, with which the President agreed, as follows:
“It is my view that r. 376(5) means that it is possible to give leave to amend to add a new cause of action, out of time, in cases not falling within r. 376(4); that is the relevant power to amend is not exhaustively set out in r. 376(4).”
Regarding s. 81 of the Act, His Honour said:
“It gives the Supreme Court power to amend pleadings to include or substitute new cause of action or add a new party; it does not include any provision restricting the scope of that power.”
His Honour went on to say:
“It is my opinion that when applications do not pass the test set out in r. 376(4)(b), the court has a general discretion under s. 81 of the Supreme Court of Queensland Act 1991 to add a cause of action out of time. In exercising that discretion, the court should have regard to the fact that the effect of adding a new cause of action out of time is equivalent to an evasion of the provisions of the Limitation of Actions Act 1974, so some adequate ground will be required, in order to justify such an amendment. Since the discretion given by s. 81 is not, however, the subject of an express limitation, it appears to me that the court must always have a discretion to add a cause of action out of time where the interests of justice demand that.”
- [32]The third member of the court in Draney, Thomas JA, said he did not consider that the power given to the court by s. 81 of the Act should be exercised on principles different from those contained in the rules of court. Thomas JA said that if there was ever any doubt about judicial power to allow amendments which would permit proceedings to be brought by amendment after a period of limitation had expired, s. 81 had removed it. His Honour agreed that s. 81 had interrupted the flow of Weldon v. Neal which held that the discretion to allow amendments after the expiration limitation period should be exercised in a very restricted way and that s. 81 created a source of power over and above that which is stated in r. 376. His Honour added in para. 56:
“… but I cannot envisage any situation where a court would act upon any different principles under s.81 than those upon which it is required to act by r. 376. I do not say that it is actually impossible that a separate stream of authority could arise, but while there is a rule of court that effectively covers the field, I do not think there is any reason for a second stream. … Rule 376 in my view now sets out the principles upon which such applications are to be considered.”
His Honour agreed with Pincus JA that r. 375 is a positive widening of r. 376, recognising a general power of amendment, notwithstanding an applicant’s failure to satisfy the specific requirements of subrules (2), (3) or (4) of r. 376. However, His Honour added:
“The discretion will no doubt be exercised according to the circumstances of particular cases upon the relevant criteria in r. 376, with the court fully conscious of the nature of the application, of its relative effect on the parties, and of any factor, including prejudice, that may make the order appropriate or inappropriate.”
- [33]I consider I may give leave to the plaintiff to make an amendment to correct the name of Dovell if I consider it appropriate and I am 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 (r. 376(2)) or in a way I consider appropriate (r. 375(1)) or if I consider some adequate ground justifies doing so and where the interests of justice demand that (s. 81 of the Act). I also consider I may give leave to the plaintiff to amend the plaint to provide the address at Leda Drive, Shailer Park pursuant to r. 376(4) or r. 375(1) provided those rules are applied according to their tenor or pursuant to s. 81 of the Act if I consider some adequate ground justifies doing so and where the interests of justice demand it.
- [34]It was submitted by counsel for the respondent on the hearing of this application that the plaintiff must fail because the plaintiff has not made a mistake “in the name of a party” because he intended in fact to sue the person he sued wrongfully believing that he had a right of action against that person. I was referred to Bridge Shipping Pty Ltd and Green Shipping S.A. & Anor (1991) 173 CLR 231. In particular, I was referred to the judgment of McHugh J, with whom Brennan J (as he then was) and Deane J (as he then was) agreed. In Bridge, the High Court dealt with the Victorian rule which was treated as having the same effect as O. 32 of the Queensland Supreme Court Rules. Subrule (3) of O. 32 of the Supreme Court Rules is reflected in r. 376(2) of the Uniform Civil Procedure Rules. At p. 260, McHugh J said that: “
“Under the 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”.
However, in that case His Honour found as a fact that the party sued was the party the plaintiff intended to sue. At p.262, McHugh J said:
“Bridge made no mistake as to description of the party which it wished to sue. It intended to sue the owner and did so. Bridge’s mistake was not one of misnomer, clerical error or mis-description. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description … the mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not a mistake ‘in the name of a party’.”
- [35]It was further submitted that the plaintiff intended to sue Dovell. In that respect it was submitted the present circumstances are indistinguishable from what occurred in Bridge. Counsel for the respondent also sought to support the submission by reference to the decision of the Court of Appeal of the Northern Territory of Australia in Mannin Pty Ltd v. Metal Roofing and Cladding Pty Ltd (1997) NTSC 119. Although the circumstances in that case were different as that case involved an application to substitute a plaintiff, the principles from Bridge were applied in Mannin. The point in Mannin though as in Bridge, was that it was found as a fact that the instructions from the director of the plaintiff company to the solicitor were that the proceedings be commenced in the name of the plaintiff and that was not a mistake in the name of a party. I consider as in Bridge and Mannin, who the plaintiff intended to sue must be determined as a matter of fact. That was the approach taken by McKenzie J in Bellis v. The Queensland Corrective Services Commission (Writ 940/94, Writ 3347/97, unreported, 6 November 1998.)
- [36]The submissions by counsel for the respondent focused upon the allegations made in para. 2 of the plaint that Dovell was the registered proprietor of the premises at the corner of Pacific Highway and Murrays Road, Loganholme, and was the occupier of those premises. The plaintiff’s application not only seeks to replace Dovell with Maggshire as the defendant in the proceedings, the application also seeks to amend the description of the premises. Thus, it was submitted the plaintiff always intended to sue Dovell. It was submitted this was fortified by Mr. Campbell’s first affidavit in which he set out what he claimed to be the plaintiff’s initial instructions to the firm to the effect that he had been injured in the service station situated at the corner Pacific Highway and Murrays Road, Loganholme. However, it is to be noted that Mr. Campbell has stated what he set out in his first affidavit was not correct. The plaintiff has sworn what his instructions were. That is, that he advised Messrs Hatzis & Associates that the site where the fall occurred was known to him as Caltex Hyperdome and was situated at Bryants Road, Loganholme. Those instructions are borne out by the letter from George Hatzis & Associates to the plaintiff dated 18 July 1996 where at p.5 his instructions are confirmed. Bryants Road is on the same side of the highway and joins Leda Drive (see Exhibit 1). I accept those instructions were instructions that the plaintiff fell at the Caltex Service Station which was situated at Bryants Road, Loganholme. It would also seem that at an earlier point in time, the plaintiff gave instructions to Messrs Bennett & Philp that the other party was Caltex Service Station Number 1046, Pacific Highway, Loganholme. That appears in the client information sheet dated 3 July 1996. The plaintiff gave his solicitors a copy of the incident report. That report did not provide an address, however described the service station by a number. Before the letter dated 18 July 1996 from Hatzis & Associates was sent to the directors of Dovell, I find on 16 July 1996 Ms. Marks contacted someone at Caltex and by either a mistake on her part or a mistake on the part of someone at Caltex, or by reason of mistakes on the part of both, Ms. Marks and the person she spoke to at Caltex, the person having the care and control of the Caltex Service Station where the plaintiff fell was identified as Dovell Investments Pty Ltd. I consider Ms. Marks did not appreciate the “1046” appearing in the incident report was not a street number. In Ms. Marks’ letter to the plaintiff dated 18 July 1996, confirming his instructions Ms. Marks did not state the address was “1046” Pacific Highway but rather “Bryants Road, Loganholme”. Whereas in the letter to the directors of Dovell of the same date bearing Ms. Marks’ initials in the reference the address is stated "1046 Pacific Highway Loganholme”. On the hearing of this application it has not been suggested that either service station is at 1046 Pacific Highway. It would seem Ms. Marks knew about Bryants Road, Loganholme and the “1046” and if she told the person at Caltex it was at “1046 Pacific Highway, Loganholme”, or something to that effect, as Dovell did not have a service station at 1046 Pacific Highway, Loganholme, for Dovell to be provided by the person at Caltex to whom Ms. Marks spoke to as the relevant person , I consider both Ms. Marks and the person at Caltex made a mistake. It is easy enough to understand Ms. Marks may have given an address such as “1046 Pacific Highway” because the client information sheet stated “Caltex Service Station No 1046, Pacific Highway, Loganholme”. In these circumstances, I consider the result of Ms. Marks’ enquiry to Caltex to be a genuine mistake which led to obtaining the search of Dovell and the address at Corner of Pacific Highway and Murrays Road, Loganholme in the plaint. I accept the plaintiff’s evidence he fell at the service station at Leda Drive Loganholme off Bryants Road and the incident report was generated by a servant or agent of the person who had the care and control of that service station. I draw that inference because I consider it is more likely than not a servant or agent of the person who had the care and control of that service station would prepare the incident report. The plaintiff’s solicitors obtained a search of Dovell Investments Pty Ltd which showed the address as corner Pacific Highway and Murrays Road, Loganholme. I find again as a matter of inference the address for Dovell Investments Pty Ltd’s principal place of business at corner Pacific Highway and Murrays Road, Loganholme contained in that search was used later as the address for Dovell in the plaint.
- [37]The evidence suggests that to ascertain the identify of the person having the care and control of a Caltex Service Station conducted as a franchise operation requires enquiry to be made to Caltex. That is how it appears Ms. Marks went about it as it appears Mr. Campbell did when his firm received the letter from Mercantile Mutual. The inference I draw is that this information is not available on a public register. In these circumstances, I consider it is possible an error could more easily occur when two people are talking over the telephone and one of them not appreciating the extent of detail required to identify the person having the care and control of the service station on one side of the highway when there is another one virtually on the opposite side of the highway.
- [38]Even though the plaintiff was shown the plaint alleging Dovell was the registered proprietor of the premises at the corner Pacific Highway and Murrays Road, and that it carried on the business of a Caltex service station at those premises and was the occupier of those premises, that does not persuade me the plaintiff’s intention was to sue the person who had the care and control of the premises at the corner of Pacific Highway and Murrays Road, Loganholme. I am prepared to accept that the plaintiff did not give sufficient attention and did not fully understood what was being alleged in the plaint when it was referred to him by his solicitors because of the effect upon him of the death of his son, and even if the effect of the death of his son may not have been operating thereafter, he did not give sufficient attention to nor did he understand the implications of what was being alleged.
- [39]The loss adjustors in response to the query whether liability was admitted or not, set out details why liability was not accepted and included in their remarks were references to witnesses’ observations about what transpired on the night the plaintiff fell. These circumstances must indicate that the loss adjustors were referring to the same premises that the plaintiff was referring to when asserting what witnesses said had happened. The incident report clearly identified the service station at which the incident happened by reference to an identification number, 1046. The respondent has not in this application claimed station 1046 is not the station at Leda Drive and was not under the care and control of Maggshire on the relevant date.
- [40]The evidence persuades me on the balance of probabilities that the plaintiff always intended to sue the person that had the care and control of the Caltex Service Station which was on Leda Drive, Loganholme, off Bryants Road who on the evidence was Maggshire.
- [41]The evidence persuades me on the balance of probabilities that the plaintiff made a mistake and that mistake was genuine for the reasons I have referred to above. Mr. and Mrs. Dovell, the directors of both Dovell and Maggshire, must be taken to know which service station was no. 1046 and that the incident report referred to the service station at Leda Drive. Further, the loss adjustors must have been appointed to investigate the incident that occurred at that service station. The insurer of Maggshire while referring to the address in the plaint nevertheless knew who their insured was and that the claim made by their insured related to a different location. That different location I find on the evidence must be the service station at Leda Drive. Therefore, I am satisfied on the balance of probabilities that the mistake was not misleading or such as to cause any reasonable doubt as to the identify of the person intended to be sued.
- [42]Further, I do not consider there is any prejudice to the respondent. The incident report is available which details the names of witnesses and identifies the place where the incident fell. It has not been suggested there is any other prejudice regarding any change to the site since 2 May 1996. Dovell and Maggshire have the same directors and the same registered office and have run the same businesses. Inquiries the loss adjustors have made would still be available to the respondent.
- [43]However, it was submitted by counsel for the respondent that as the plaintiff requires an amendment to delete the description of the premises and replace it with the address at Leda Drive a new cause of action is being alleged. It was submitted the plaintiff could not come within r. 396(4)(b).
- [44]In Draney the President agreed with Thomas JA’s observations that the words “substantially the same facts” under O. 32 r. 5 and Uniform Civil Procedure Rules r. 376(4)(b) do not necessarily make the need to prove some additional facts fatal to the favourable exercise of the discretion (See para. 4 reasons for judgment McMurdo P.).
- [45]I consider that to allow the plaintiff to amend the plaint to delete the address given and replace it with the address at Leda Drive would include a new cause of action arising out of substantially the same facts. However, if I were wrong about that I consider r.375(1) or s.81 of the Act is the appropriate source of power to amend the address in paragraph 2(b) of the plaint.
- [46]Therefore, I find:-
- (a)Loss adjusters have made inquiries into the claim by the plaintiff and these inquiries were in respect of the service station no. 1046 being the service station at Leda Drive and Pacific Highway where the plaintiff fell; and
- (b)The information from their inquiries is available to the insurer of Maggshire; and
- (c)To ascertain the identify of the person having the care and control of a Caltex service station could more readily lead to error by reason of the means available to ascertain the identify of such a person; and
- (d)the naming of Dovell as the defendant in the plaint was a genuine mistake and was not misleading or such as to cause no reasonable doubt as to the identity of the person intended to be sued; and
- (e)Maggshire has suffered no prejudice and would not suffer any prejudice beyond the loss of the benefit of the statute of limitation.
- [47]In these circumstances, I consider it is appropriate to give leave to make the amendments sought pursuant to r. 376(2) and r. 376(4). Further or in the alternative, these amendments for these reasons ought to be made as I consider it is appropriate to make the amendments pursuant to r.375 or these circumstances amount to good reasons why these amendments ought to be made pursuant to s.81 of the Act.
- [48]Therefore I order (the further orders appearing hereafter being requested by the plaintiff which were not in issue on this application):
- The plaint filed on the plaintiff’s behalf be amended to name Maggshire Pty Ltd, ACN 011024230 as defendant in lieu of Dovell Investments Pty Ltd ACN 061977259;
- Paragraph 2(b) of the plaint be amended to substitute the words “was the occupier of premises situated at 1/5 Leda Drive, Shailer Park” in lieu of the words “was the registered proprietor of premises situated at corner Pacific Highway and Murrays Road, Loganholme”;
- Paragraph 2(e) of the plaint be amended to substitute the word “lawful” for the word “contractual”;
- Paragraph 2(f) of the plaint be amended to delete the words “a contractual duty and”;
- Paragraph 4 of the plaint be amended to substitute the word “duty” for the word “contract”.
- [49]I will hear the parties on the question of costs.