Binns v Kealley, Rostas & Ors [1996] QSC 94

IN THE SUPREME COURT OF QUEENSLAND No. 351 of 1994 Brisbane Before Justice Ambrose [Binns v Kealley & Ors] BETWEEN: STEPHEN BARRY BINNS Plaintiffs AND: BENJAMIN KEALLEY First Defendants AND: ANTHONY DAVID ROSTAS Second Defendant AND: GOLD COAST RADIO BROADCASTING CO PTY LTD ACN 009 747 102 (RECEIVER AND MANAGER APPOINTED) Third Defendant and No. 1035 of 1996 BETWEEN: STEPHEN BARRY BINNS Plaintiff AND: JET-A-WAY CRUISES (A FIRM) First Defendant AND: A. L. & C. R. FARNHAM PTY LTD A C N 007 784 778 Second Defendant REASONS FOR JUDGMENT - B W AMBROSE J Judgment delivered : 29/04/1996 -- 1 of 21 -- CATCHWORDS: Rules of the Supreme Court O 32 r 1 - Limitation of Actions Act 1974 - Misnomer application - extension of limitation period - both applications made in respect of some cause of action - principles upon those applications compared to application made under O 3 r 11. Counsel: J. J. Clifford Q.C. and W. Martin for plaintiffs K. C. Fleming Q.C. and R. Dickson for defendants Solicitors: Tutt & Quinlan for plaintiffs Flower & Hart for defendants Hearing Date: 27 February 1996 -- 2 of 21 -- IN THE SUPREME COURT OF QUEENSLAND No. 351 of 1994 Brisbane Before Justice Ambrose [Binns v Kealley & Ors] BETWEEN: STEPHEN BARRY BINNS Plaintiffs AND: BENJAMIN KEALLEY First Defendants AND: ANTHONY DAVID ROSTAS Second Defendant AND: GOLD COAST RADIO BROADCASTING CO PTY LTD ACN 009 747 102 (RECEIVER AND MANAGER APPOINTED) Third Defendant and No. 1035 of 1996 BETWEEN: STEPHEN BARRY BINNS Plaintiff AND: JET-A-WAY CRUISES (A FIRM) First Defendant AND: A. L. & C. R. FARNHAM PTY LTD A C N 007 784 778 Second Defendant REASONS FOR JUDGMENT - B W AMBROSE J Judgment delivered : 29/04/1996 On 27 February 1996 applications brought by the plaintiff in each of the above actions were argued. The first application in 351 of 1994 is for an order pursuant to RSC O 32 r 1 that -- 3 of 21 -- 2 Jet-A-Way Cruises (A Firm) and A. L. & C. R Farnham Pty Ltd be substituted as defendants in lieu of the first defendant, Ben Roy Kealley by amendment of the writ of summons to "correct the name" of that defendant. Those proposed substituted defendants are the same as the defendants in action 1035 of 1996. In that action the plaintiff applies for an extension of time pursuant to ss. 30 and 31 of the Limitation of Actions Act 1974. On 16 March 1995, the plaintiffs obtained an order under RSC O 3 r 11 to join the second defendant in action 1035 of 1996 as a fourth defendant in action 351 of 1994. However, this joinder was upset upon appeal on the basis that at the time the order for joinder was made the statute of limitations had expired and the plaintiff had failed to show "special and peculiar circumstances in order to justify the joinder" as required under Hayward v. Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153. For the plaintiff it is contended that he is not personally responsible for the failure to have Jet-A-Way Cruises and/or A.L. & C.R. Farnham Pty Ltd joined as defendants to his action within the limitation period. The legal representatives of the second defendant in action 1035 of 1996 however having succeeded upon their appeal against its joinder as defendant in 351 of 1994 contested vigorously both its substitution for the first defendant, Ben Roy Kealley in that action or the extension of the limitation period in action 1035 of 1996 commenced on 6 February 1996. Although strictly speaking the applications might properly be regarded as being made in the alternative, it would be a very technical approach to make an order upon only one application if in fact and law it were appropriate to make an order in both - even though it might eventually prove not to have been necessary to make both orders - or for that matter either of them. -- 4 of 21 -- 3 Should an order be made in favour of the plaintiff upon either application, it would be made upon material canvassed both on the application to join the additional defendant which resulted in his joinder in March 1995 (although that order for joinder was upset upon appeal) and the additional material relied upon by the plaintiff upon these applications. It is convenient then to turn to the facts canvassed insofar as they are relevant to each of the applications argued. In my view the finding of the Court of Appeal that the facts placed before the chamber judge which persuaded him to make an order under RSC O 3 r 11 joining A.L & C.P. Farnham Pty Ltd were not sufficiently special and peculiar to justify making that order, although of course requiring careful attention are not determinative of the issues to be decided on the two applications argued before me, although of course appropriate weight should be given to it in making those determinations. For a discussion of the differing effects of the expiration of a limitation period upon an application for joinder under RSC O 3 r 11 and upon one for amendment under RSC O 32 r 1(3), I refer to Hayward v. Darling Downs Aircraft Services Pty Ltd (supra) at pp. 155-6 per Fitzgerald P and p. 158 per Pincus JA and Ambrose J. I refer also the discussion by McPherson JA in Binns v. A.L. & C.P. Farnham (supra), at p. 3 of his unreported judgment delivered on 11 August 1995, of the difference in approach required upon an application under RSC O 3 r 11 and one under s.31 of the Limitation Act 1974. Additional material was advanced to support the two applications most recently made by the plaintiff to that relied upon to support his application to join the second defendant in action 1035 of 1996 as a defendant in action 351 of 1994. It is convenient to summarise briefly the relevant facts established by the material placed before me which has not been challenged. On 6 December 1991 the plaintiff, who was then 19 years of age and had recently finished his schooling in New South Wales, went on a boat trip at the Gold Coast which -- 5 of 21 -- 4 commenced in the Nerang River and finished on Stradbroke Island. He was one of a group of young people, which included his brother, who had been persuaded to embark upon this boat trip by a young lady selling tickets for it on the Gold Coast. It was a trip undertaken in the night time. The boat was about 60 feet long. It provided entertainment, food and liquor and one of the advertised features was that persons travelling on it might swim in the vicinity of the boat in a net enclosure connected with that boat when it anchored at Stradbroke Island. It is the plaintiff's case that one of the selling points for the trip at the time - during a period of hot weather - was the ability of persons going on the trip to swim in the Broadwater. It is the case for the plaintiff that as the vessel neared its mooring point on Stradbroke Island, his brother asked one of the crew members whether it would be permissible for them to then dive off the boat and swim in its vicinity. After making inquiries of somebody apparently in a position of authority the crew member advised that they ought wait until the boat had anchored and then it would be all right to go for a swim. It is the plaintiff's case that he did as advised and when the boat did anchor he saw his brother dive into and another person enter the water and commence to swim. He then dived into the water but apparently it was quite shallow where he entered the water and he hit bottom causing injury to his neck and spinal processes. The plaintiff was very seriously injured. He was evacuated from Stradbroke Island by helicopter and taken to hospital. He remained in hospital for some weeks and spent months in very painful and physically constraining traction and during this time was quite incapable of personally taking steps necessary to pursue any cause of action which might be available to him as a consequence of his injury. However he had discussions with members of his family at a fairly early stage and on 3 January 1992 his sister gave instructions to an experienced firm of solicitors in Brisbane. -- 6 of 21 -- 5 At that stage the plaintiff was quite unaware of the name of the boat which was involved with his injury. Apparently no member of his family was aware of its name either. A solicitor made contact with the vendor of the cruise tickets purchased by the plaintiff which advised that it dealt with the second defendant Rostas carrying on business as TDR Promotions and that KROQ (the name under which the third defendant carried on business) were sponsors of the cruise. On 30 January 1992 contact with the second defendant revealed that a firm Jet-A-Way Cruises was the operator of cruises sponsored by the third defendant. The second defendant said that he actually witnessed the accident and that he thought that the name of the boat was "The Neptune". The solicitor for the plaintiff then made contact with the first defendant, Ben Roy Kealley (Benjamin Kiealley), who advised that the second defendant was the hirer of the boat and that Jet-A-Way Cruises provided the crew and organisation. He said he would provide the plaintiff's solicitor with further information. Next day, 31 January 1992, the first defendant telephoned the solicitor having conduct of the plaintiff's action and gave him the name and post office box number of Jet-A-Away Cruises and said that that firm was a "bare boat charterer". He informed him that TDR Promotions (the second defendant Rostas) chartered the vessel from Jet-A-Way Cruises and that the name of the vessel so chartered was "MV Gold Coaster". On 3 February 1992 the plaintiff's solicitors conducted a search for a "private pleasure vessel" "MV Gold Coaster" through the Department of Transport and found there was no currently registered "private pleasure vessel" of that name. Subsequently those solicitors were informed by the Department of Harbours and Marine that the only vessel in their records registered as "Gold Coaster" was "SV Gold Coaster" owned by a person named Rickert. -- 7 of 21 -- 6 Having regard to the rather confusing and somewhat inconsistent information, the plaintiff's solicitors had received in January/February 1992 concerning the name of the relevant vessel at the material time, the identity of its owner and perhaps controller, they appointed a professional investigator outlining the information they had received and asking that he confirm the identity of the vessel, the name of the owner and the charterer of the vessel as at 6 December 1992 and the location of TDR Promotions and Mr Rostas. Not surprisingly, the solicitors said that they needed full details as to the vessel and the persons who were in control of it and its crew on the night in question before instituting proceedings. They sent to the investigator a copy of the ticket purchased by the plaintiff for the boat trip. On 11 May 1993 the investigator reported that the "SV Gold Coaster" owned by Rickert had never travelled south of Townsville. However investigations revealed that the owner of the "MV Gold Coaster" was Benjamin Kealley, the first defendant (surname incorrectly spelt) in action 351 of 1994. The investigation report indicated that the first defendant admitted that he was the owner of the vessel at the time of the accident and had undertaken to supply a copy of the vessel's log book which should record details of the accident and identify the crew, skipper and any witnesses. He said that at that stage he could not locate the log book. Eventually witnesses were identified as the skipper at the time of the accident and a senior deck hand who had made a written report of the incident to Mr Kealley. A search indicated that a company TDR Promotions Pty Ltd existed and a report from the investigator indicated that the second defendant Rostas conducted an unregistered business and suggested that he had organised the charter of the "MV Gold Coaster" for the radio station KROQ. On 23 July 1993 the plaintiff's solicitors conducted a search in the Marine and Ports Division of the Department of Transport for the name of the owner of "MV Gold Coaster" which disclosed that no vessel of that name was registered as being owned by the first defendant. A -- 8 of 21 -- 7 search indicated only the name Rickert as registered owner of "SV Gold Coaster". The writ issued in action 351 of 1994 on 1 March 1994 against the current defendants; that is about 2 years and 3 months after the date of the plaintiff's injury. The writ was served on the first defendant on 1 February 1995. On 8 February 1995 the plaintiff's solicitors were informed by the solicitors retained by the first defendant that his correct name was Ben Roy Kealley and that he was not in fact the owner of the vessel involved in the plaintiff's injury. The owner of that vessel was said to be A.L. & C.R. Farnham Pty Ltd trading as Jet-A-Way Cruises. It appears however that Jet-A-Way Cruises was never registered as the business name of A.L. and C.R. Farnham Pty Ltd which in any event sold its cruise business previously carried on under that name in March 1993 - 12 months before issue of the writ. This was the first occasion upon which the solicitors for the plaintiff had been informed that the owner of the vessel was A.L. & C.R. Farnham Pty Ltd; that is they were so informed approximately 2 months after the limitation period had expired. On 14 February 1995 application was made to join that company as a defendant. The application was successful but was overturned upon appeal by judgment delivered on 11 August 1995. A company search made on 20 February 1995 showed that A.L. & C.R. Farnham Pty Ltd was a $2 company, the shareholders and directors being Ben Roy Kealley and Sue Kealley each of whom lived at the same address on the Gold Coast. Evidence is uncontradicted to the effect that the solicitors for the plaintiff first learnt of any assertion or even suggestion that it was not the first defendant who was the owner of the vessel involved in the plaintiff's injury, but rather the company A.L. & C.R. Farnham Pty Ltd, of which he was simply a director on 8 February 1995. -- 9 of 21 -- 8 The writ of summons in action 1035 of 1996 issued against Jet-A-Way Cruises (A Firm) and A.L. & C.R. Farnham Pty Ltd was issued on 6 February 1996 - that is 2 days before the expiration of 12 months after the plaintiff's solicitors were first informed by the solicitors for the first defendant in action 351 of 1994, that he was not the owner but rather that the second defendant in action 1035 of 1996 was the owner. In support of the application made under RSC O 32 r 1(2) and (3) - described as a "misnomer application", - the contention of the plaintiff/applicant is that the name "Ben Roy Kealley" should be "corrected" by substituting therefor by amendment under RSC O 32 r 1(3) the names "Jet-A-Way Cruises (A Firm) and A.L. & C.R. Farnham Pty Ltd". It is contended that the manifest intention of the solicitors for the plaintiff which appears from the terms of a draft statement of claim yet to be delivered but prepared prior to the joinder application in February 1995 was to sue the owner of the vessel then thought to be the first defendant, the charterer of the vessel then thought to be the second defendant and the person conducting the boat trip and entertainment thereon then thought to be the third defendant, on the basis that the crew on the vessel, at least one of whom was responsible for the advice or lack of advice given to the plaintiff leading to his diving into the water, were the employees and/or agents of each of those defendants or at least of one of them. It is now believed as the result of information received from the solicitors for the first defendant that in fact A.L. & C.R. Farnham Pty Ltd carrying on business under the name of Jet-A- Way Cruises may have been the true owner. The explanation of the plaintiff for the mistake made by his solicitors in suing only the first defendant instead of suing A.L. & C.R. Farnham Pty Ltd emerges clearly enough from an affidavit of the first defendant that he may unwittingly have misled the plaintiff's solicitors into thinking that he was actually the owner of the vessel involved rather than simply being the -- 10 of 21 -- 9 director of a company which owned the vessel. In any event he was the director of and shareholder of one of the two issued shares in that company. The whole matter is complicated because of information obtained from the Division of Transport of Harbours and Marine by the then solicitors for the plaintiff on matters relevant to ascertaining the ownership of the relevant vessel. The plaintiff's solicitors were also unwittingly misled by the first defendant as to the registered name of the vessel in question which was apparently also known as "Aussie Islander". The Department of Harbours and Marine, Division of Transport eventually informed the plaintiff's solicitors that a vessel registered under the name "Gold Coaster" in its records was owned by A.L. & C.R. Farnham trading as Jet-A-Way Cruises. In fact according to the first defendant the vessel in issue was registered under the name of "Aussie Islander". It was Mr McConaghy acting upon instructions from A.L. and C.R. Farnham Pty Ltd and familiar with the full facts of the matter who was able to locate the appropriate file of the Department of Transport on the motor vessel known as both "Aussie Islander" and "Gold Coaster". The business name "Jet-A-Way Cruises" was not registered until 14 March 1994. That registered name was the business name of a corporation named "Rolling Acres Pty Ltd" which had nothing whatever to do with the events connected with the plaintiff's injury. The applicant/plaintiff contends that this is a case of misnomer of an identifiable person perceived to be responsible or arguably responsible for his injury. It is further contended that it was always intended to sue the owner of the vessel in connection with which the plaintiff suffered injury. The plaintiff had no personal knowledge of these matters and was precluded by injury from making inquiries for a significant time. He retained an experienced firm of solicitors to make those inquiries which led them (and so him) to believe that the first defendant was the owner. It is said that the plaintiff's solicitors may have made a mistake -- 11 of 21 -- 10 based upon the information they were given by the director of the company which in fact owned the relevant vessel that he "owned" it. As it was observed in the joint judgment of Fitzgerald P and Moynihan J in Binns v. A.L. & C.R. Farnham Pty Ltd Appeal No. 61 of 1995 delivered on 11 August 1995: "There was no suggestion of deliberate dishonesty by Kealley who was a director of the appellant and obviously speaking colloquially. Indeed much of the information which the respondent had earlier obtained including that the charterer was Jet-A-Way Cruises had been supplied by Kealley." The material parts of RSC O 32 for present purposes are rules 2 and 3 which provide: "(2) Where an application to the Court or a Judge for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court or a Judge may nevertheless grant such leave in the circumstances mentioned in that paragraph if the Court or a Judge thinks it just to do so. (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court or a 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 intending to sue or, as the case may be, intended to be sued." The plaintiff relies upon observations in the judgment of McHugh J in Bridge Shipping Pty Limited v. Grand Shipping SA (1991) 173 CLR 231 at p. 260 where he said with respect to analogous Rules of the Supreme Court of Victoria: "Those words also imply the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided there was a mistake in the name of the person sued. Moreover the 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. Thus a plaintiff may make a mistake 'in the name of a party' because although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that party's name. Equally the plaintiff may make a mistake 'in the name of a party' because although intending to sue a person whom the plaintiff knows by a particular description e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases the plaintiff knows the person intended to be sued by reference to some -- 12 of 21 -- 11 property or properties which is or are peculiar to that person but is mistaken as to the name of the person. In the first case the properties which identify the person are personal characteristics; in the second case they are properties which are the essence of the description of that person. But for the purpose of sub-rule 4 that distinction is irrelevant. In both cases the plaintiff was mistaken only as to the name of the person intended to be sued." [Italics added.] In this case it is contended for the plaintiff that one of the persons whom he wished to sue when 351 of 1994 was instituted was the owner of the motor vessel connected with his injury on the basis that it was probable that the owner was responsible for the operation of the vessel and the advice or lack of advice given by members of its crew which the plaintiff asserts was a cause of his injury. The plaintiff contends that when naming Kealley as the owner of the vessel he was mistaken. He contends that his solicitor was misled albeit without "deliberate dishonesty" by the first defendant to entertain this belief and Kealley was made first defendant only by reason of the fact that the plaintiff's solicitor, and thus the plaintiff, mistakenly believed that he was the owner of the vessel when in actual fact he was a director/shareholder of the company (with 2 issued shares) which owned that vessel. There can clearly be no prejudice to A.L. & C.R. Farnham Pty Ltd whether it be sued under that name or under the firm name under which it is believed it carried on business - Jet-A-Way Cruises - apart from the prejudice that will always follow the making of an order which overcomes a limitation defence. It is clear that from a very early stage indeed, the first defendant Kealley as director of the respondent A.L. & C.R. Farnham Pty Ltd was aware of all matters relevant to the claim which the solicitors for the plaintiff were pursuing on behalf of the plaintiff with respect to the injury he suffered in connection with the boat owned either by Mr Kealley or the company A.L. & C.R. Farnham Pty Ltd of which he was director. In my view applying the law as declared by McHugh J in Bridge Shipping Pty Ltd v. Grand Shipping SA, with which Brennan and Deane JJ agreed, and Toohey J substantially agreed, the uncontroverted evidence discloses that the solicitors for the plaintiff made a genuine and -- 13 of 21 -- 12 understandable mistake when they accepted the information provided by the first defendant that he was in fact the owner of the vessel involved in the plaintiff's injury, when the true position, first asserted on 8 February 1995, was that he was one of two directors of A.L. & C.R. Farnham Pty Ltd which was the owner of that vessel. In my view it could not be said that anybody apart from the plaintiff was misled by any mistake made by Mr Kealley and there was never any reasonable doubt as to the identity of the person which the plaintiff intended to sue - that person being the owner of the motor vessel concerned. It is unclear what particular advantage will accrue to the plaintiff if he sues not merely the owner of the motor vessel but also the firm name under which that owner is said to have conducted its business. However it has not been contended that if the plaintiff is permitted to substitute A.L. & C.R. Farnham Pty Ltd for the first defendant Kealley, it is not appropriate also to add Jet-A-Way Cruises (A Firm) as a second defendant. That firm name was first mentioned by the first defendant when he asserted that "Jet-A-Way Cruises" chartered the relevant vessel "MV Gold Coaster" to the second defendant for the trip on which the plaintiff was injured. Upon the whole of the evidence the owner of the vessel - whoever it was - appears to have carried on business under that business name even though it was not then registered as a business name. Neither is it entirely clear to me why the two respondents to the application under RSC O 32 ought be substituted for the first defendant so that the first defendant ceases to be a party to the action if the plaintiff also succeeds in obtaining an extension under s.30 of the Limitation Act in 1035 of 1996 which it has commenced against those two defendants. Presumably if the plaintiff succeeds in his application to extend the limitation period, 1035 of 1996 could be consolidated with or heard with 351 of 1994 and it could be left to the trial of the action to sort out which of the first defendant in 351 of 1994 or the first and/or -- 14 of 21 -- 13 second defendant in 1035 of 1996 was in fact owner of the relevant motor vessel at the time of the plaintiff's injury on 6 December 1991. Registration of ownership I should have thought would not necessarily establish who at law was in fact the owner for the purpose of establishing vicarious liability for acts or omissions of members of the crew of the vessel at the time of the plaintiff's injury. No doubt it would be evidence of ownership but so would the statement of the first defendant in 351 of 1994 be evidence against him. Before making any order upon the application for amendment seeking a substitution of defendants for the first defendant in 351 of 1994, I will deal with the application for extension of the limitation period in 1035 of 1996. On the facts of this case it is clear and not really at issue that the plaintiff put his solicitors in possession of all facts within his knowledge relevant to any cause of action he might have against persons connected with the boat in question. It is clear that his solicitors determined that the plaintiff should sue, among other persons, the owner of that vessel. This was on the basis, no doubt, that the owner probably had control of the vessel at the time material to the plaintiff's injury or at least would be vicariously responsible for the person or persons on the vessel whose acts or omissions may have been a cause of the plaintiff's injury. It is clear and not really contested that the plaintiff himself did not know the name of the vessel. No members of his family or any person known to the plaintiff from the group of persons who accompanied him on his ill-fated boat trip appear to have been able to give information concerning the name or ownership of the boat. It is clear that the solicitors for the plaintiff made extensive inquiries personally and through an investigator in an effort to discover the name of the owner of the boat; ultimately the investigator was led to the first defendant in 351 of 1994 who asserted unequivocally that he was in fact the owner of the boat. It was he who gave the name "Jet-A-Way Cruises" and said -- 15 of 21 -- 14 that the vessel in question was named "MV Gold Coaster". Whether or not the plaintiff's solicitors could have made further inquiries to confirm the information they received from the investigator they had retained to discover the identity of the owner of the boat, in my view on the material, it was reasonable for them to proceed on the basis of what they had been informed by him. It is clear on the material that the plaintiff himself left it entirely to his solicitors to discover the identity of the owner of the boat and to institute proceedings against the person so identified. In my view it was reasonable for the plaintiff to entrust this task to his solicitors having regard to - (1) his age, background and lack of experience. (2) the serious injury he received and the incapacitating effect it had on him for a long period of time. (3) the fact that at material times he was receiving hospital treatment and medical treatment generally in New South Wales where he lived. (4) the fact that he had retained an experienced and reputable firm of solicitors in Brisbane to pursue action for him against persons thought to be legally responsible to him in damages which kept in touch with him (and his sister) concerning progress of his action. The plaintiff's injury occurred within Queensland and it was a Queensland court which had jurisdiction to entertain it. The plaintiff had only been for a short holiday at the Gold Coast at the time of his injury and had no connection with or apparently any knowledge of the name of the persons in Queensland relevant to the pursuit of his claim. In my view it could not be contended on the material that the plaintiff failed to take -- 16 of 21 -- 15 reasonable steps to discover the true identity of the owner of the boat by leaving it to the solicitors he retained in Queensland to do so - particularly after, no doubt, he had been informed that the first defendant had admitted that he was in fact the owner of the boat and indeed that the log books of the vessel although mislaid contained a record of the incident in which he suffered his injury. It is clear that the solicitors for the plaintiff were misled wittingly or unwittingly by the first defendant Kealley and were mis-informed by the Division of Transport of the Department of Harbours and Marine. This is the explanation for the possible mistake which his solicitors made in accepting what they had been told by the first defendant in 351 of 1994 that he was the owner of the boat at the material time as being the true fact. Assuming that the ownership of the boat is either directly or indirectly a basis for liability for the plaintiff's injury on the facts of this case, the identity of the owner is clearly a material fact of a decisive character. It is clear that the plaintiff did not at any material time know that fact of his own knowledge. It is equally clear in my view that he had taken all reasonable steps to ascertain that fact by retaining his solicitors to discover it and by relying upon what Kealley first told them to be the true fact - that is that he was the owner of the vessel concerned. The material fact that A.L. & C.R. Farnham Pty Ltd was said to be the owner did not become known to the plaintiff's solicitors until they were informed by the solicitors for the first defendant in 351 of 1994 of the true fact - assuming that it be the "true" fact - on 8 February 1995, a date within twelve months of the issue of the writ of summons in 1035 of 1996 on 6 February 1996. It was 8 February 1995 when the plaintiff's solicitors were first informed by the solicitors for Mr Kealley that he was not the owner of the boat which in fact was owned by A.L. -- 17 of 21 -- 16 and C.R. Farnham Pty Ltd. According to the plaintiff before he was informed by his solicitors - presumably after 8 February 1995 - that the identity of the owner of the vessel "may have been ... a company called A.L. and C.R. Farnham Pty Ltd" he was not aware of this fact. Applying what was said in Neilson v. Peters Ship Repair Pty Ltd (1983) 2 Qd R 419 it is clear that even if it could be contended that the plaintiff's solicitors had not taken "all reasonable steps to ascertain" the identity of the owner of the motor vessel involved in the plaintiff's injury, that failure is not attributable to him under s.30(a) and (d) of the Limitations Act. Neilson v. Peters Ship Repair Pty Ltd is binding authority for the proposition that s.30(d)(i) should be read as it stands as referring to a plaintiff's actual knowledge and should not be read as imputing to him the knowledge of his agent. It follows that s.30(d)(ii) should be similarly read so that one must focus on the failure of a plaintiff personally to take all reasonable steps to ascertain a material fact and any failure on the part of his legal representatives to take steps which they as trained lawyers ought reasonably take, must not be imputed to him under this section. In my view this emerges clearly enough from the observations of McPherson J. at pp.429-431 of the report and from those of Thomas J. at pp.432-433 and 438-439. Although Macrossan J. delivered a dissenting judgment in that case, I do not read his discussion of principle on pp.424-425 as differing from the statements of principle expressed in the majority judgments. The difference in the conclusions reached in the case is attributable to differences in the views taken on factual matters. On my view of the facts upon this application which I have outlined, the proper conclusion is that a material fact, being the possible identity of the owner of the motor vessel involved with the plaintiff's injury, was not known to the plaintiff prior to his solicitors informing him that the second defendant may have been the owner subsequent to 8 February 1995 when they first became aware of that fact. I am further of the view that the fact of the true -- 18 of 21 -- 17 identity of the owner of the ship was not within the means of knowledge of the plaintiff prior to his solicitors being informed of it initially in early 1992 and subsequently on 8 February 1995 because on the evidence prior to those times he had taken all reasonable steps to ascertain that fact by retaining his solicitors to do so and there was nothing to indicate to him that he ought take any further steps to ascertain that fact. The writ in 1035 of 1996 issued on 6 February 1996 which was within the period of twelve months after the date upon which the fact that the second defendant "may have been" the owner first came to the knowledge of either the plaintiff or his solicitors. I would therefore make an order in the terms sought by the notice of motion extending the time within which the plaintiff may bring his action number 1035 of 1996 against Jet-A-Way Cruises, a firm, and A.L. and C.R. Farnham Pty Ltd ACN 007 784 778 up to and including 6 February 1996. Whether as a matter of principle both orders sought by the plaintiff in actions 351 of 1994 and 1035 of 1996 ought be made, it seems clear, upon the whole of the material that it was never intended to sue the first defendant in 351 of 1994 in his capacity as director or agent of the second defendant in 1035 of 1996. He was sued in 351 of 1994 in the belief possibly mistaken that he was in fact personally the owner of the vessel involved in the plaintiff's injury. The basis of an order made extending the limitation period in 1035 of 1996 is the lack of knowledge by the plaintiff of a material fact which was of evidence that the true identity of the owner of the vessel involved may have been A.L. & C.R. Farnham Pty Ltd. If both applications succeed and both actions are heard together the extension application will have the effect only of adding the business name of the second defendant in 1035 of 1996 as a defendant to the overall action taken by the plaintiff. On the other hand if no order is made in 351 of 1994 but an order is made extending the -- 19 of 21 -- 18 period of limitation in 1035 of 1996, the result will be that the company A.L. & C.R. Farnham Pty Ltd and Mr Kealley will be sued in the alternative as the owner. On my understanding of the material apart from the content of some registers relating to ownership of vessels, the evidentiary value of which has not been canvassed, and which I have not attempted to investigate in deciding these applications, the position is that it has been asserted on different occasions by the first defendant in 351 of 1994 that he was the owner of the vessel at the material time and later by his solicitors in the same action and by his affidavit that it was the second defendant in 1035 of 1996 which was the true owner. Had both these assertions been made within the limitation period it would have been open to the plaintiff to sue both Mr Kealley and the company A.L. & C.R. Farnham Pty Ltd of which he was director asserting ownership against them in the alternative on the basis that he was not sure who or which was the correct defendant. Such a course is clearly contemplated by RSC O 3 r 8. A plaintiff is not required to elect to sue only one defendant when, because of inconsistent evidence available to him, he is uncertain as to who of two persons is responsible for his injury. The fact that the first defendant in 351 of 1994 was "known" within the relevant period of time to be owner of the relevant motor vessel is not inconsistent with the second defendant in 1035 of 1996 not being "known" within that period and subsequent to it to be the owner for the purposes of ss. 30 and 31 of the Limitation of Actions Act 1974 and RSC O 3 r 8. In this respect I refer to Field v Field (N.S.W.) (N.S.W. Court of Appeal unreported 21 October 1981) and the discussion of it by Davies JA in Wood v. Glaxco Australia [1994] 2 Qd R 431 at p. 440-442. I make an order therefore extending the period of limitation as sought by the plaintiff in 1035 of 1996 up to and including 6 February 1996. Obviously an order would be appropriate -- 20 of 21 -- 19 that 351 of 1994 be consolidated with 1035 of 1996 or in the alternative at least that those actions be heard together. I will refrain from making any order in 351 of 1994 to substitute the two defendants in 1035 of 1996 for the first defendant Ben Roy Kealley until the parties have had an opportunity to consider the matters I have raised. The respondents to the application in 1035 of 1996 for an extension of the period of limitation must have their costs of that application against the applicant. Contingently upon actions numbered 351 of 1994 and 1035 of 1996 being consolidated I reserve the costs of this application incurred and borne by the applicant to the trial judge of those consolidated actions. -- 21 of 21 --