Bellis v Queensland Corrective Services Commission [1998] QSC 247

IN THE SUPREME COURT OF QUEENSLAND Brisbane Writ No.940 of 1995 Before the Hon. Mr Justice Mackenzie [Bellis v Qld Corrective Services Com.] BETWEEN: STEPHEN JOHN BELLIS Plaintiff AND: THE QUEENSLAND CORRECTIVE SERVICES COMMISSION Defendant Writ No.3347 of 1997 BETWEEN: STEPHEN JOHN BELLIS Plaintiff AND: STATE OF QUEENSLAND REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 6 November 1998 CATCHWORDS:CIVIL PROCEDURE - correct party served with original writ - defendant not served on advice from solicitor - leave to renew writ - second writ issued erroneously naming defendant - leave to substitute correct defendant. Rules of The Supreme Court of Queensland O.9 r.1, O.32 r.1(1) - (3) Jones v Jebras & Hill (1968) Qd.R13 Dempsey v Dorber (1990) 1 Qd.R 418 Jiminez v Jayform Contracting Pty Ltd (1993) 1 Qd.R 610 Hayward v Darling Downs Aircraft Services Pty Ltd (1993) 2 Qd.R 153 Honnery v McKenzie (Court of Appeal, unreported, 6 December 1997, Appeal No.12 of 1997) Thomas v The State of Queensland (unreported, Master White, 9 September 1991, No.1193 of 1991) Harstoff v Allen (1967) Qd.R 211 Lynch v Keddell (1985) 2 Qd.R103 Lynch v Keddell (No 2) (1990) 1 Qd.R10 Teys Bros. (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd (1990) Qd.R288 The “Al Tawwab” (1991) 1 Lloyd’s Rep. 201 “AA” - “JC” Inclusive v Hickey (1996) 70 ALJR 385 Counsel: Mr C Newton for the plaintiff Mr K Dorney QC for the defendant Solicitors: Carew & Co for the plaintiff Crown Law for the defendant Hearing date: 28 October 1998 -- 1 of 11 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Writ No.940 of 1995 Before the Hon. Mr Justice Mackenzie [Bellis v Qld Corrective Services Com.] BETWEEN: STEPHEN JOHN BELLIS Plaintiff AND: THE QUEENSLAND CORRECTIVE SERVICES COMMISSION Defendant Writ No.3347 of 1997 BETWEEN: STEPHEN JOHN BELLIS Plaintiff AND: STATE OF QUEENSLAND REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 6 November 1998 1 The complementary applications dealt with in these reasons arise from unusual circumstances. The applicant plaintiff, who is a psychologist by training, commenced employment as a community corrections officer with the Queensland Corrective Services Commission in 1989. From 1991 until 1994 he was aggrieved at what he perceived to be victimisation by his superiors. In May 1994, he suffered symptoms which resulted in his ceasing work. On 13 July 1995 a Medical Assessment Tribunal constituted under the Workers’ Compensation Act decided that he had an adjustment -- 2 of 11 -- 3 disorder with depressed mood and had a permanent partial disability in the lower range of moderate severity. He received a disability settlement of about $18,500 in consequence of this decision which together with the sum of weekly benefits previously paid and other payments for expenses amounted to a total sum in excess of $57,000 in payments under the Act. 2 In April 1997, he instructed his present solicitors to commence action for damages for personal injuries (in the nature of nervous stress) sustained during the course of his employment. Writ No.3347 of 1997 (“the second writ”) was issued on 14 April 1997. It named the State of Queensland as defendant and was served on the Crown Solicitor and WorkCover on 25 November 1997. The following day in response to a telephone call from an officer of Crown Law who wanted information about the nature of the claim so she could decide where to send the writ, the plaintiff’s solicitor explained that the matter was a Queensland Corrective Services matter, that it was a workplace claim and that WorkCover was also being served with the writ. An entry of appearance was filed on 26 November 1997 and the statement of claim delivered on 2 December 1997. 3 It is common ground that the State of Queensland is the wrong defendant since it was not the plaintiff’s employer and that the defendant should have been the Queensland Corrective Services Commission. The plaintiff’s solicitor candidly deposes that he had not previously taken instructions in a matter against the Queensland Corrective Services Commission. He located a precedent from a previous occasion when the firm had acted in a corrective services matter and found that the writ had been issued against the State of Queensland. He concedes that this was so because the previous matter concerned an incident which occurred before the Queensland Corrective Services Commission had been created by statute (Corrective Services (Administration) Act 1988). 4 There was a delay in delivering the defence in respect of which the plaintiff granted several extensions. On 27 February 1998, the solicitor received a communication from Crown Law alleging that the writ had been issued against the wrong defendant. Since Mr Dorney QC for the defendant -- 3 of 11 -- 4 respondents places some importance on the way the letter is expressed, the relevant passage is quoted (the emphasis being mine):- “It is now noted that the writ in this matter has been issued against the wrong defendant. At no time was the plaintiff or any of the people referred to within the statement of claim employed by State of Queensland. The correct legal entity is in fact Queensland Corrective Services Commission, a legal entity in its own right. Accordingly to properly conduct this matter with respect to discovery and interlocutory steps, I require commencement of proceedings against the correct party .... .” 5 On 2 March 1998 the question of applying to have the name of the defendant changed was raised by the plaintiff’s solicitor and on 11 March 1998, a formal inquiry accompanied by a proposed draft order was made as to whether the position could be regularised by consent. Despite frequent subsequent inquiries by the plaintiff’s solicitor, which were met by the response that counsel’s advice was being sought, and then that the departure of the legal officer overseas would cause another delay, Crown Law finally advised on 21 July 1998 that the client would not consent to the proposed draft order. (The request for a consent order to be signed had been formally repeated on 9 July 1998). 6 While consideration was being given by the plaintiff’s legal advisors to possible complications in relation to limitation periods in connection with an application to substitute a new defendant, the plaintiff informed his solicitor on 24 August 1998 that he had previously instructed another firm of solicitors in or about May 1995 to issue a writ against Queensland Corrective Services Commission in relation to the same facts in respect of which he was instructing his present solicitors. This was Writ No.940 of 1995 (“the first writ”) which named Queensland Corrective Services Commission as defendant and which was never served. It was never served, according to the applicant, because he was advised by the solicitors then acting that he had no real prospects of success. He said he had not brought the existence of that writ to the attention of his solicitors as he was not aware of the significance of it and because he was in a “confused, anxious and depressed state of mind” and was -- 4 of 11 -- 5 focusing his energies on collating the voluminous material required in preparation of his claim for damages. 7 The situation therefore is that there is the first writ which named the plaintiff’s employer as defendant but in respect of which no efforts at all were made to effect service due to the plaintiff’s acceptance of advice from the solicitors then acting concerning his prospects of success. No step has been taken in the action since the writ was filed. There is also the second writ which names a juristic person who was not the plaintiff’s employer as defendant and which was served on the Crown Solicitor and WorkCover. The fact that the correct defendant had not been named was identified about 3 months after the writ was served and for reasons explained above the issue of substituting the correct defendant lingered for many months without either side doing anything decisive to bring it to a head. 8 In connection with Writ No.940 of 1995 the summons seeks leave to renew the Writ and leave to proceed with the action. In connection with Writ No.3347 of 1997 the summons seeks primarily an order pursuant to Order 32 r.1 that the Queensland Corrective Services Commission be substituted as defendant in lieu of the State of Queensland. Alternatively it seeks an order pursuant to Order 3 r.11 that the Queensland Corrective Services Commission be substituted for the State of Queensland as defendant in the action and that the proceedings against it be deemed to have commenced as at the date of issue of the Writ against the State of Queensland. It also seeks leave to amend the Writ and the statement of claim accordingly. 9 Dealing with the application in connection with the first Writ, under Order 9 r.1 leave to renew a Writ can be granted if the court is satisfied that reasonable efforts have been made to serve the defendant or there is “other good reason”. As no effort was made to serve the Writ some other good reason must be demonstrated for renewing the Writ (Jones v Jebras & Hill (1968) Qd.R 13). The discretion, according to current authority, is not circumscribed by the need to show exceptional -- 5 of 11 -- 6 circumstances. There is no exhaustive catalogue of factors to be taken into account. Each case will depend on its own circumstances. 10 In the present case a substantial period has elapsed since the Writ issued. It was almost 2 years at the time the second Writ was issued. The delay resulted from a decision which was, on the face of it, rational to accept the advice of the solicitors then acting as to the prospects of success. The Crown Solicitor, who may reasonably be assumed to have had a role in representing the Queensland Corrective Services Commission in matters of this kind, was not aware that the action had been commenced in respect of the plaintiff’s problems, let alone that the first Writ had been issued, for about 2½ years after the first Writ was issued. However, no specific prejudice is pointed to. Mr Dorney QC referred only to the generalised concern that delay may diminish witnesses recollections of relevant evidence. The fact that the decision not to serve the first Writ was based on a deliberate decision not to do so is a relevant factor. 11 It was submitted on behalf of the applicant the fact that the Workers’ Compensation Board had been involved in the claim for compensation was equivalent to the factor referred to in some cases (e.g. Jones v Jebras & Hill and Dempsey v Dorber (1990) 1 Qd.R 418) that the insurer had been served. I am not convinced that the analogy is good since issues relating to the negligence claim, at least one of this kind, are not particularly germane to whether a person is suffering from a work related injury. For example it is unlikely that in connection with the Workers’ Compensation claim there would have been any particular focus on a detailed examination of the rights and wrongs of the perceptions of participants in relevant events whereas such an exercise may be critical in a negligence action. 12 In my opinion, standing alone, the case is not one where good reason has been shown for renewing the Writ and the summons in that regard should be dismissed. In that eventuality it becomes unnecessary to consider whether leave should be given under Order 90 r.9 to take a fresh -- 6 of 11 -- 7 step in the proceedings. However, I simply note that had the Writ been renewed there would in my opinion have been no reason why leave to take a fresh step would not have been granted. 13 In relation to the second Writ, submissions were made that I should allow the name of the Queensland Corrective Services Commission to be substituted for the State of Queensland under either Order 32 r.1 or under Order 3. Order 32 r.1(1) allows amendment of a Writ or pleading in such manner and on such terms as may be just. Order 32 r.1(3) provides for an amendment to correct the name of a party 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 misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. Order 32 r.1(2) provides that where an application for leave to make an amendment mentioned in, inter alia, sub-rule (3) is made after any relevant period of limitation current at the date of the issue of the Writ has expired, the court or judge may nevertheless grant such leave in the circumstances mentioned in the sub-rule if the court or judge thinks it just to do so. 14 In Jiminez v Jayform Contracting Pty Ltd (1993) 1Qd.R 610, 614, Davies and McPherson JJA said the following:- “In Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 C.L.R. 231, the High Court considered the construction of a rule of the Victorian Supreme Court which, though in terms different from O.32r.1(3), was considered by the court to have the same effect. The court concluded that, 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. Clearly, the applicant’s mistake in the present case falls into one or other of those categories and consequently the appeal should be allowed.” 15 In Hayward v Darling Downs Aircraft Services Pty Ltd (1993) 2 Qd.R 153, 158 which was argued 5 months after the decision in Jiminez, there was an application to add an additional plaintiff, -- 7 of 11 -- 8 not to correct a plaintiff’s name by substituting a different name. Bridge was referred to in this factual context in the following terms:- “Counsel for the appellant relied upon Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 C.L.R. 231, a decision concerning the construction of Rules of the Supreme Court of Victoria the effect of which is somewhat similar to that of O. 32 r.1(3). It was held there, amongst other things, that the Victorian provision should be given “the widest interpretation which its language will permit” and that it should be construed so as to cover 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” (260, 261). Counsel for the appellant contended, in effect, that here Mr Hayward intended to sue as the owner of the helicopter in question, from which it followed that Scartwater Pty Ltd, the true owner, could be added. It is our opinion that, whatever else O.32 r.1(3) does, it does not authorise the joinder of a party additional to that whose name is sought to be corrected. We therefore find it unnecessary to consider the extent to which the High Court decision throws light upon the construction of O.32 r.1(3) of the Queensland Rules.” 16 There is nothing to suggest that the remarks from Jiminez were taken into account by the Court in Hayward. Further, in Honnery v McKenzie (Court of Appeal, unreported, 6 December 1997, Appeal No.12 of 1997) the judgment of the court appears to proceed on the basis that there is no material difference in approach in Queensland from that adopted in Bridge. In my opinion the passage quoted above was essential to the result in Jiminez and I should accept it as the approach that I should follow in this case. Since cases decided before Bridge are no longer a reliable guide as to the outcome of applications under Order 32 the authorities to which I was referred, which included Thomas v The State of Queensland (unreported, Master White, 9 September 1991, No.1193 of 1991), are not decisive. It is convenient to note at this point that the decision in Thomas was influenced by Harstoff v Allen (1967) Qd.R 211, Lynch v Keddell (1985) 2 Qd.R 103, Lynch v Keddell (No 2) (1990) 1 Qd.R 10 and Teys Bros. (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd (1990) Qd.R 288, all of which were expressly overruled by Bridge. Mr Dorney QC mounted an argument that the mandatory requirement in the Crown Proceedings Act 1980 that suits brought against corporations representing the Crown must be brought against the corporation, not the State of Queensland, -- 8 of 11 -- 9 precluded the relief sought. The argument relies on a forced interpretation of what was said in Thomas and is without substance. 17 In Bridge the kind of case in which an order may be made under Order 32 is characterised in various ways in the judgment of McHugh J with whom Brennan CJ and Deane J agreed. Adapting some of them to the present case, I am satisfied that Order 32 r.1(3) applies to the case. Mr Dorney QC’s argument that, since the State of Queensland was not a proper party, there was not an amendment of the name of a “party” is inconsistent with the judgment of McHugh J in Bridge at 261- 2. In the present case the applicant sought to sue his employer as the person who caused the injury but mistakenly described his employer as the State of Queensland. It was a case of a mistaken belief that the legal personality made a party to the proceedings fulfilled a particular description, viz, that of the proper description in law of the employer. The plaintiff mistakenly believed that a person who answered a particular description (his employer) bore the name used in the second Writ. The plaintiff knew whom he intended to sue by reference to properties peculiar to the person (its status as his employer) but was mistaken as to its name. The plaintiff intended to sue his employer and mistakenly believed that the proper description of the legal entity employing him was the State of Queensland. In my opinion this was a “mistake” within the meaning of the term in Bridge which the plaintiff may “correct” by substituting a new party, Queensland Corrective Services Commission, subject to satisfaction of the other conditions in the sub-rule. Lest it be thought that this interpretation provides an open-ended right to amend, the reference in Bridge, 262, to a passage from the judgment of Lloyd L.J. in The “Al Tawwab” (1991) 1 Lloyd’s Rep.201, 207 demonstrates the limitations of the application of the principle. Mr Dorney QC submitted that the present case fell into the same category as that in “AA” - “JC” Inclusive v Hickey (1996) 70 ALJR 385, where, in an application for special leave, the Court held that, on the facts, the plaintiffs intended to sue a particular individual against whom there was no cause of action. The decision below refusing -- 9 of 11 -- 10 amendment to substitute a corporation sole which may have been the proper defendant was held to have revealed no error of principle. In my opinion, that case and the present are materially different. 18 With regard to the other requirements of Order 32 r.1(3), I am satisfied that the mistake was genuine for reasons set out in the affidavit of the solicitor for the plaintiff. The final issue is whether it can be said that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. In this connection Mr Dorney QC relied on the paragraph of the letter quoted above in para.4. He submitted that the contents of the passage, and in particular the word “now” indicated that, for 3 months after the Writ was served, there was confusion about who was intended to be sued. This would be a surprising conclusion, since on the day after the Writ was served, an officer of Crown Law was advised that it was a work related claim in a Corrective Services Commission matter and on 2 December 1997 the statement of claim, which plainly indicated that the action concerned the consequences of events occurring in the course of the plaintiff’s employment as a community corrections officer, was delivered. The decision in Honnery proceeded on the basis that this issue had to be resolved in a factual context. As the court says:- “The question raised is entirely a factual one; it does not appear to us that there is any good ground for rejecting the finding of the primary judge .... that “relatively soon after the institution of proceedings [the appellants] were aware that they were the persons who answered the description of the persons the [respondent] was intending to sue in the action” and that [the original defendants] were also aware of that. It is but a short step from that finding to adoption of the view that the test in O.32r.1(3) was satisfied.” 19 I am satisfied that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. Therefore the conditions referred to in Order 32 r. 1(3) have been satisfied. There is no other reason for thinking that it is not just to give the relief sought. Accordingly, I will permit, pursuant to Order 32 r.1 of the Rules of the Supreme Court, Queensland Corrective Services Commission to be substituted as defendant in lieu of State of -- 10 of 11 -- 11 Queensland. The consequential relief that the plaintiffs have leave to amend the Writ and statement of claim accordingly is also granted. In view of this outcome it is not necessary to address the arguments directed to me concerning the application of Order 3 rr.11 and 13 to the case. 20 The orders are the following: 1. In Writ No.940 of 1995: The summons is dismissed with costs. 2. In Writ No.3347 of 1997: (a) Pursuant to Order 32 r.1 of the Rules of the Supreme Court, Queensland Corrective Services Commission be substituted as the defendant in lieu of State of Queensland; (b) That the plaintiff have leave to amend the Writ and Statement of Claim accordingly; (c) That the defendant’s costs of and incidental to the application be the defendant’s costs in any event. -- 11 of 11 --