Bluescope Distribution Pty Ltd v Dreyden & Meyer [2009] QDC 266

[2009] QDC 266 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1376 of 2009 BLUESCOPE DISTRIBUTION PTY LTD ACN 096 380 068 Plaintiff and MATTHEW JOHN DREYDEN First Defendant and WALTER GUSTAV OSKAR MEYER Second Defendant BRISBANE ..DATE 03/07/2009 ORDER CATCHWORDS: Uniform Civil Procedure Rules, r 5, r 115, r 283, r 377, r 384 - misnomer - idem sonans rule - in heading of claim (but nowhere else) defendant Dryden was called Dreyden - his solicitors accepted service and endorsed a note to that effect on the claim - new solicitors contended the claim must be amended after leave being obtained and re-served - court dispensed with re-service and referred application for judgment in default of notice of intention to defend to the Registrar. 1-1 -- 1 of 8 -- HIS HONOUR: The plaintiff's application before the Court seeks correction of the name of the first-named defendant from "Dreyden" to "Dryden" pursuant to Rule 377(1)(a). It seeks, pursuant to Rule 384(2), that the requirement for service of the amended claim and statement of claim be dispensed with. The balance of the application seeks what amounts to a judgment in default of notice of intention to defend under Rule 283. There is also a claim that monies held in trust by the plaintiff's solicitors may be applied in reduction of monies due by the named defendant. No relief is sought against the other defendant at this stage, given that he was served later. The proper spelling of the first named defendant's name is Dryden (as for the Poet). The material before the Court shows his correct name as one of the guarantors in respect of payment for products to be supplied to a company called SP Manufacturing Pty Ltd by the plaintiff. Matters appear to have proceeded under that documentation to the point where not only has a caveat been lodged in respect of real property offered as security (under a general charge of all present or future real or personal property), there have been some realisations by the plaintiff pursuant to its security entitlements. The error in the spelling of Mr Dryden's name appears in only one place; unfortunately that is where the name of the defendant is given in the claim. It's not replicated in the statement of claim, or indeed in the claim itself at the foot 1-2 ORDER -- 2 of 8 -- of it where it indicates that the claim is to be served on "Matthew John Dryden." An experienced firm of solicitors accepted service of the claim and statement of claim and made an endorsement to that effect on the 20th May 2009, spelling the name correctly. The original of that document is exhibited to an affidavit on the Court file - as it may have been separately filed. Rule 115 covers the situation. Rule (2) is satisfied by the endorsement ("note"). The exception in paragraph (3) which involves proof that "the solicitor did not have authority to accept service for the party" is not raised here. The Claim is taken to have been served. A new firm of solicitors, by letter dated 17th June 2009, on the eve of the plaintiff's acquiring ability to apply for judgment under Rule 283, wrote to the plaintiff's solicitors drawing attention to the misspelling of Mr Dryden's name, advising, I think unnecessarily, that "our client is in fact Matthew John Dryden. In the circumstances, your client will be required to amend its claim to correctly name our client if it wishes to proceed, requiring your client to make an application to the Court pursuant to Chapter 10 of the Uniform Civil Procedure Rules (Queensland) for leave to amend, before serving our client with an amended claim. In any event our client has instructed us to defend the matter and following service of an amended claim, we will proceed with our client's instructions." 1-3 ORDER -- 3 of 8 -- Mr Ryan, the solicitor handling the matter, has responded to that letter by one dated 1st July 2009, sent in the first instance by fax, at the very last minute, as Mr Ryan tells me, from the point of view of giving "notice" of what's happening today. Mr Ryan's letter asserts that the error identified is obviously an isolated typographical error and, at worst, a mere misnomer. Mr Ryan's letter asserts that the defendant has suffered no prejudice and not been prevented from filing a notice of intention to defend and a defence. The letter goes on, "Your client has had over five weeks to file a notice of intention to defend but has chosen not to do so for his own reasons. Accordingly we are instructed to make application to the Court for correction of a misnomer, dispensation of service and judgment by default against your client without further notice." Mr Ryan informs the Court that he hasn't given any further advice of the application returnable today. Anyone interested could presumably learn of it by consulting the Court's law list or searching the file. Neither Mr Dryden nor the firm, each called by name outside the Court this morning, appeared. A case is made in my view for the granting of the relief sought. I have indicated reluctance to enter a judgment in the circumstances, given the likelihood that it might be set aside on the basis of what's contained in the letter of the 17th June. 1-4 ORDER -- 4 of 8 -- Mr Ryan has indicated he's content to have the Court make the necessary order correcting Mr Dryden's name at the head of the claim. The matter could have been dealt with by a Registrar to that extent (see Rule 377(1)(a)), but the Registrar would lack power to dispense with re-service under Rule 384. Accordingly, the draft order initialled by me to represent the Court's order deals only with the first two aspects of the relief sought in the application. It adds as paragraph 3 that the balance of the application, seeking judgment under Rule 283, et cetera, be passed to the Registrar for determination forthwith. Mr Ryan is prepared to take his chances with the Registrar. What intrigued me about the application was a recollection of the so-called idem sonans rule whereby misspellings in particular may be overlooked. A helpful recent authority is Re Vidiofusion Ltd [1975] 1 All England 75 where the error concerned the advertising of a winding-up petition in which the middle "i" in the company's name appeared as an "e". Megarry J declined to interfere with the winding-up order which had been made. There'd been a similar error in an earlier case heard by Astbury J, Re L'Industrie Verriere Ltd in which the final "i" in the first word of the company's name had been omitted in an advertisement. The case is reported in [1914] Weekly Notes 222. The report records his Honour as saying that "the Rule on which the Court had long acted was that an error in the name of the company in the advertisement 1-5 ORDER -- 5 of 8 -- rendered the advertisement absolutely void. It was important that this Rule should be strictly enforced but where the mistake consisted of a very trifling error in spelling, by which no-one could possibly be misled and there was no other company or any similar name on the register, his Lordship thought that he had and ought to exercise a discretion of waiving the formal defect." In the 1975 case, too, the order was that the advertisement and the winding-up order which had been made should stand. Megarry J collected some of the old authorities on the idem sonans rule, in particular R v Davis (1851) 5 Cox's Criminal Cases 237, in which it was said that if two names spelled differently necessarily sound alike, the Court may as a matter of law pronounce them to be idem sonantia, but if they do not necessarily sound alike, the question whether they are idem sonantia is a question of fact for the jury. That was a case in which the prisoner was indicted for stealing the goods of Darius Christopher. The evidence proved the Prosecutor's name to be Tryus Christopher. The Court had ruled that in Dorsetshire Darius and Tryus were idem sonantia. Unfortunately, the question of whether that was so was not put to the jury. In this case, I am sitting as Judge and jury. I am satisfied it is a case of the conflicting spellings sounding the same. In the criminal jurisdiction in England there are some surprisingly strict cases, such as The King v. Shakespeare in 1-6 ORDER -- 6 of 8 -- which the defendant had been indicted with the "e" missing from the end of his name. See the report at 10 East 84;103 English Reports 707. By reference to older authority, the Court in Shakespeare reluctantly decided that Samuel Shakespeare with an "e" at the end of his name couldn't be compelled to answer to the indictment in that state. The idem sonans rule was acknowledged but not applied (Wakefield for Whitfield) in R v Guyse [1828] NSW Sup C 29 (9 May 1828) - intriguingly reported as Guise in Dowling's Select Cases 1828 to 1844 p 307 (a plea of autrefois acquit failed to stop a trial on a new indictment). In Queensland, a robust approach is taken, as by the Full Court, Griffith CJ presiding, in R v. Hamilton 9 QLJ 251. A prisoner was indicted in the name of John Hamilton but claimed his name was McDonald and he should have been indicted in that way. What transpired wouldn't impinge on the validity of his conviction and, according to the Full Court, whether the objection had been taken before or after the conviction. There's a similar robust approach taken in a case which Mr Ryan referred me to, Harstoff v. Allen (1967) QdR 211 where a plaintiff, against whom the limitation period had run when the error was discovered, wrongly identified the defendant in a writ as the Julia Creek Hospital Board when it ought to have been the McKinlay Hospitals Board. 1-7 ORDER -- 7 of 8 -- The approach taken there is far from unusual in Australia. See for example Re Chrystal (1899) 16 Weekly Notes (NSW) 71 where the Municipal District of Jerilderie sued for rates in the name of the "Municipal Council of Jerilderie" and obtained a verdict. It was held that suing in the wrong name was a mere technical error which the Court could disregard. In Longuet v. Holland (1891) 8 WN (NSW) at 42, Manning J plainly disapproved of the defendant's taking a misnomer point and deprived him of costs. In my opinion it's astounding in an era when, even without recourse to Rule 5 of the UCPR, those involved in litigation attempt to get to the real issues without being distracted by totally unmeritorious technical points, to find this particular point being taken. Mr Ryan did not seek costs. Now that the error has become known, it's probably sensible to regularise things, and Mr Ryan seems to have worked out a suitable way of achieving that. It's most unsatisfactory, in my opinion, to define that service solemnly accepted by a firm which the Court presumes to have acted on instructions, then resiled from in the way that's happened, and I have indicated the order. ----- 1-8 ORDER -- 8 of 8 --