PURCELL -v- DMH PLANT SERVICES PTY LTD [2026] WADC 70

[2026] WADC 70 [2026] WADC 70 [PB] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : PURCELL -v- DMH PLANT SERVICES PTY LTD [2026] WADC 70 CORAM : PRINCIPAL REGISTRAR MCGIVERN HEARD : 14 JULY 2026 DELIVERED : Ex tempore PUBLISHED : 4 AUGUST 2026 FILE NO/S : CIV 2495 of 2025 BETWEEN : BRADLEY DAVID PURCELL Plaintiff AND DMH PLANT SERVICES PTY LTD First Defendant DOWNER EDI LIMITED Second Defendant DOWNER PTY LTD Third Defendant DOWNER EDI SERVICES PTY LTD Fourth Defendant DOWNER UTILITIES AUSTRALIA PTY LTD Fifth Defendant DOWNER ENERGY SYSTEMS PTY LTD Sixth Defendant -- 1 of 22 -- [2026] WADC 70 [2026] WADC 70 [PB] Page 2 Catchwords: Practice and procedure - Substitution of a party - Whether Rules of the Supreme Court 1971 (WA) O 21 r 5 is engaged - Whether mistake in naming the party - Whether just to allow amendment - Whether requirements of the Limitation Act 2005 (WA) are relevant to the exercise of discretion Legislation: Limitation Act 2005 (WA), s 14, s 39(3) Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 18 r 6, O 18 r 8, O 21 r 5 Result: Application allowed Representation: Counsel: Plaintiff : Mr N F Morrissey First Defendant : Dr M C Douglas Second Defendant : Dr M C Douglas Third Defendant : Dr M C Douglas Fourth Defendant : Dr M C Douglas Fifth Defendant : Dr M C Douglas Sixth Defendant : Dr M C Douglas Solicitors: Plaintiff : Peninsula Personal Injury Lawyers First Defendant : Wotton + Kearney Lawyers (Perth) Second Defendant : Wotton + Kearney Lawyers (Perth) Third Defendant : Wotton + Kearney Lawyers (Perth) Fourth Defendant : Wotton + Kearney Lawyers (Perth) Fifth Defendant : Wotton + Kearney Lawyers (Perth) Sixth Defendant : Wotton + Kearney Lawyers (Perth) -- 2 of 22 -- [2026] WADC 70 [2026] WADC 70 [PB] Page 3 Case(s) referred to in decision(s): Alinta 2000 Ltd v Petkov [2012] WASCA 258 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367 Cunningham v Moorevest Pty Ltd [2016] WADC 38 Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 Lois Nominees Pty Ltd v Hill [2011] WASC 53 O'Rourke v Bonney Downs Pastoral Company Pty Ltd [2016] WADC 104 Praetz v Sodexo Australia Pty Ltd [2023] WADC 48 -- 3 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 4 PRINCIPAL REGISTRAR MCGIVERN: [This decision was delivered extemporaneously on 30 July 2026 and edited from the transcript.] Introduction 1 This action was commenced against the named defendants by a writ of summons issued on 17 October 2025. The indorsement of claim is in terms that the plaintiff has suffered personal injuries and resultant loss: … as a result of an accident which occurred on 20 October 2022, whilst [he] was employed by Power Turbine Services Pty Ltd as a Turbine Mechanical Fitter and working at the NewGen Power Station, Kwinana in the State of Western Australia … 2 The writ names six defendants, all of which are (or appear to be)1 entities under the umbrella of the 'Downer Group'. 3 The present proceeding is the plaintiff's application, made pursuant to O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC),2 for leave to amend his writ such as to: (a) substitute the named fourth defendant, Downer EDI Services Pty Ltd (DES), with Downer EDI Engineering Power Pty Ltd (Proposed Defendant); and (b) discontinue his action against the first, second, third, fifth and sixth defendants. 4 The application was heard on 14 July 2026. The parties3 made submissions orally and in writing,4 and filed affidavits in support of their respective positions.5 1 Save in relation to the fourth defendant and the proposed substituted defendant being related entities (as to which, see [34(d)]), it is unnecessary for me to make any finding on this point. 2 For ease of reference, in these reasons I will refer to the applicant as the plaintiff and the respondents as the defendants, being their respective positions in the substantive action. In these reasons, except as otherwise provided, all references to rules are references to the RSC. 3 Counsel for the named defendants indicated that he also acted for the Proposed Defendant: ts 2. For convenience, unless otherwise indicated, I will refer to the six named defendants and the Proposed Defendant collectively as 'the defendants'. 4 The plaintiff filed an outline of submissions on 9 July 2026 (plaintiff's submissions); the defendants (including the Proposed Defendant) filed outlines of submissions on 6 July 2026 (defendants' submissions). 5 The plaintiff filed four affidavits of Natasha Yela Zupanov, respectively dated 3 March 2026, 24 June 2026, 3 July 2026 and 8 July 2026 (respectively, the First, Second, Third and Fourth Zupanov Affidavit), the affidavit of Justin Ivan Cvitan dated 8 July 2026 (Cvitan Affidavit) and the affidavit of Judith Kathleen -- 4 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 5 5 For the reasons that follow, the application is allowed. Issues 6 In dealing with the application, I will address the following issues: (a) Is the application properly characterised as an application to correct the name of a defendant, or to add a defendant? (b) If so, ought the plaintiff have leave to substitute the name of the fourth defendant with that of the Proposed Defendant? Relevant rules and principles 7 Two rules of court deal with the proposed substitution of a named defendant with another person or entity: O 18 r 6 and O 21 r 5. The former deals with the addition of a new party to proceedings, while the latter deals with correcting an error made in naming a party. 8 In this case, the plaintiff relies only on O 21 r 5, which relevantly provides: 5. Amending writ or pleading with leave (1) This rule is subject to - (a) Order 18 rules 6, 7 and 8; and (b) Order 20 rule 19(2) to (5). (2) The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct. 9 In Praetz v Sodexo Australia Pty Ltd,6 I set out some of history of, and case law relevant to, O 21 r 5. I direct myself to those matters without repeating them here, save as to the following summary (to which the parties referred in their submissions):7 Barker dated 7 July 2026 (Barker Affidavit). The defendants filed the affidavit of Caitlin Jane Paxton dated 29 June 2026 (Paxton Affidavit). All of the affidavit evidence was read without objection: ts 2. 6 Praetz v Sodexo Australia Pty Ltd [2023] WADC 48 (Praetz) [16] - [22]. 7 Praetz [22], citing Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2021] WASC 367 (Collgar); Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; Alinta 2000 Ltd v Petkov [2012] WASCA 258 (Petkov); Lois Nominees Pty Ltd v Hill [2011] WASC 53; Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [43]; Bridge Shipping Pty Ltd v Grand Shipping -- 5 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 6 22 The following principles may therefore be distilled from the authorities: (a) If an amendment to the name of a defendant is properly made within O 21 r 5, the amendment does not involve the addition or substitution of a party within the meaning of O 18 r 6. That is because the nature of an amendment under O 21 r 5 involves the correction of a mistake, rather than the substitution of a new party, 'except in a technical or formal sense'. (b) It follows that, as there is no addition of a party or new party substitution involved in an O 21 r 5 amendment, there is no occasion to regard it as having the effect of circumventing a limitation defence. (c) That is because such an amendment is properly characterised as the continuation of an existing proceeding against the intended defendant (with the amendment treated as correcting the mistake ab initio), rather than as the 'commencement of a proceeding' against a new party. (d) The passage of time reflected in any expiration of a limitation period may, however, be relevant to the court's assessment of whether it is just, in the exercise of its discretion, to grant leave to amend. (e) The discretion under O 21 r 5 is broad, and should be exercised in accordance with the considerations identified in Petkov, with the overarching consideration being whether it is in the interests of justice to do so. That is, the question of whether it 'may be just' to allow an amendment to a party's name incorporates considerations of whether the applicant has made a 'genuine mistake' in naming the party and, if so, the impact of that mistake on the recipients of the erroneous writ and/or statement of claim. (f) As to whether there has been 'genuine mistake' in naming a party: (i) the concept is sufficiently broad to cover not only cases of misnomer, clerical error and misdescription, but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, SA [1991] HCA 45; (1991) 173 CLR 231, 260 - 261; Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212, 218. -- 6 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 7 was mistaken as to the name of the person who answers that description, including where such errors are made with fault; (ii) the mistake must relate to the name of the party, rather than to their legal responsibility (that is, the relevant legal relationship with the applicant); and (iii) the intention of the plaintiff in this regard (that is, as to who the plaintiff intended to sue) must be determined in light of all the surrounding circumstances, including the objective construction of the relevant pleadings. (g) As to the impact of the mistake on the named and intended defendants: (i) the mistake should not give rise to a reasonable doubt as to the person intended to be sued; (ii) the impression of a recipient of the erroneous writ and/or statement of claim should be assessed on an objective basis (that is, based on the response of a reasonable reader, rather than on the subjective response of the named defendant); and (iii) any prejudice to the intended defendant arising from the mistake should be considered in the overall exercise of the court's discretion. [references omitted]. 10 Further, the considerations identified in Petkov (referred to in the foregoing summary, and which remain relevant to the exercise of the court's discretion despite subsequent amendment of the rule8) are to the effect that: (a) O 21 r 5 is a remedial provision and should be given a beneficial interpretation (indeed, the widest interpretation which its language will permit); 8 Collgar [47]; Praetz [31]. -- 7 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 8 (b) before giving leave to amend the name of a party, with the effect of substituting an alternative party, under O 21 r 5, the court should generally be satisfied that: (i) the mistake sought to be corrected was a genuine mistake; (ii) the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued; and (iii) it is just to make the amendment; and (c) while each requirement must be satisfied, when they are read together, the fundamental and overriding consideration for a court is whether it is in the interests of justice to grant leave to amend. Is Order 21 rule 5 engaged? 11 For O 21 r 5 to be engaged, I need to be satisfied that the application is properly characterised as an application to correct the name of a defendant, rather than to add a defendant. 12 As I opined in Praetz:9 (a) the question of whether the application is properly characterised as one to correct an error is to be: (i) approached broadly, in line with the remedial nature of O 21 r 5; and (ii) assessed on the basis of whether a mistake as to the name of the defendant was made at the time that the writ was issued (rather than any subsequent time); (b) while reckless disregard on the part of the plaintiff as to the identity of the named defendant will militate against a finding that the plaintiff made a mistake, evidence that the plaintiff could have done better will not, of itself, usually do so; and 9 Praetz [30] - [32], [34] - [35]. See also: O'Rourke v Bonney Downs Pastoral Company Pty Ltd [2016] WADC 104. -- 8 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 9 (c) once the court is satisfied that there has been an error such as to engage O 21 r 5, all other considerations (including those identified at [10]) are properly taken into account in the exercise of the court's discretion. Parties' positions 13 The plaintiff contended that: (a) as appears from the indorsement, the plaintiff always intended to sue the Downer entity that was 'engaged to perform the relevant works' and therefore 'supervised the [p]laintiff's workplace' at the NewGen Power Station in Kwinana on 20 October 2020;10 (b) the identity of the Downer entity having the relevant connection to the site was not known to the plaintiff until after the writ was issued;11 (c) the plaintiff attempted to name the correct defendant, albeit by naming six defendants rather than one;12 (d) the Proposed Defendant was, by mistaken omission, not named on the writ;13 (e) accordingly, O 21 r 5 is enlivened.14 14 The defendants' written submissions: (a) did not directly address the issue of whether O 21 r 5 was engaged; but (b) rather, were directed to the 'ultimate issue [of] whether the Court should exercise its discretion in the interests of justice to allow the [a]pplication'.15 10 Plaintiff's submissions, pars 4, 12, 18; ts 19. 11 ts 19. 12 ts 19. 13 Plaintiff's submissions, pars 16 - 17. 14 ts 20. 15 Defendants' submissions, par 12. -- 9 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 10 15 However, in oral submissions,16 counsel for the defendants contended that: (a) the Proposed Defendant was identified in the plaintiff's solicitors' searches of the Downer entities prior to the writ being issued; (b) the omission of the Proposed Defendant from the writ was an error, but not of the kind that attracts the operation of O 21 r 5; (c) the degree of fault inherent in this particular error is such as to deprive it of the characterisation of a 'genuine mistake' for the purposes of O 21 r 5; and (d) the error was not a mistake in naming a defendant, but an error of 'failing to nail one's flag to the mast'. Disposition: Order 21 rule 5 is engaged 16 Before coming to the 'ultimate issue'17 in the exercise of a discretion under O 21 r 5, I must first be satisfied that that rule applies - more specifically, that the application is properly characterised as one to correct the name of a party, rather than to add a new party to the action. 17 This case is somewhat unusual in that: (a) the plaintiff did not name a single defendant, which he believed had the relevant supervision and control of his worksite, and which he now seeks to substitute with the Proposed Defendant; but rather (b) knowing that there was only one entity who exercised the relevant supervision and control, he named six Downer entities and now seeks to substitute the Proposed Defendant for one of them, and to discontinue the action against the remaining named defendants. 18 I accept, as the defendants contended, that this feature distinguishes this case from cases such as Praetz. Nevertheless, in the circumstances, I do not accept that that distinction deprives it of the requisite character of mistake, for the reasons set out below. 16 ts 15 - ts 16. 17 Defendant's submissions, par 12. -- 10 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 11 19 The affidavit evidence filed in support of the application is to the effect that: (a) on 20 October 2022, the plaintiff was injured while he was working as a turbine mechanical fitter (incident) at the NewGen Power Station (Site);18 (b) on 29 August 2024, the plaintiff gave a statement19 about the incident, which includes statements to the effect that: (i) at the time of the incident, the plaintiff was employed by Power Turbine Services (PTS), which specialises in the maintenance and repair of steam and gas turbines, and provides specialised labour; (ii) PTS contracted with 'Downer' to supply labour at the Site, pursuant to which the plaintiff was deployed for a period commencing on 18 September 2022 and due to be completed on 28 October 2022 (although the plaintiff's first day at the site was 19 September 2022); (iii) another company, Alsando, 'oversaw the whole project and had sent some of their staff over'; (iv) the plaintiff was supervised at the Site by 'both Downer and Alsando staff', although his immediate supervisor was Jonathan Jackson (who the plaintiff called 'Johno') who worked for Downer; (v) the incident arose out of circumstances in which the plaintiff had worked around 11 hours of a 12-hour overnight shift in a 'tight space' and was then handed heavy equipment (including hydraulic jacks) by another worker; (vi) the plaintiff experienced pain that did not resolve and reported the incident to Johno at the start of the following shift, who in turn reported it to the shift safety officer, 'Nick Brown from Downers'. The following day, Nick took the plaintiff to a medical appointment at an after-hours clinic. The plaintiff was prescribed Tramadol and Naproxen and recommended for light duties; 18 First Zupanov Affidavit, par 4; Fourth Zupanov Affidavit 'NYZ1'. 19 Annexed to the Fourth Zupanof Affidavit, marked 'NYZ1'. -- 11 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 12 (vii) thereafter, the plaintiff remained on light duties for the remainder of his time at the Site (which extended to 2 November 2022); and (viii) the plaintiff subsequently underwent imaging of his back, which showed a bulged disc; (c) by writ of summons filed on 8 April 2025, the plaintiff commenced proceedings against PTS; (d) subsequently, the plaintiff's solicitor formed the view that 'Downer was responsible for supervision of the works on the Site and that it was prudent to join Downer' to the action;20 (e) on or around 26 August 2025, the plaintiff gave instructions to commence proceedings against Downer,21 but when asked, he was unable to identify the specific Downer entity that 'had control of' the Site; 22 (f) prior to commencing this action, the plaintiff's solicitors undertook various investigations and enquiries to try to ascertain the name of the relevant Downer entity on Site - these included:23 (i) an ASIC search on 22 July 2025 (which 'identified close to 100 Downer entities') and further ASIC searches conducted on 16 October 2025;24 (ii) enquiries made by telephone and letter (the latter on 4 October 2025) to the solicitors for PTS (including a request for a copy of any contract between PTS and Downer, which only provided by that firm on 5 February 202625); (iii) 'Deep Research ChatGBT' [sic] searches conducted by a principal of the firm, Justin Cvitan, on or around 6 October to 13 October 2025; and 20 First Zupanov Affidavit, par 7; Second Zupanov Affidavit, pars 5 - 6. 21 First Zupanov Affidavit, par 8. 22 Third Zupanov Affidavit, pars 5 - 6; First Zupanov Affidavit, par 9. 23 First Zupanov Affidavit, par 10; Cvitan Affidavit; Barker Affidavit. 24 Barker Affidavit; First Zupanov Affidavit, par 6, 'NYZ9'. 25 Second Zupanov Affidavit, par 6, 'NYZ1'. -- 12 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 13 (iv) a letter sent under cover of an email addressed to the 'Downer Group' email identifying the date of the incident and the Site at which it occurred, and requesting 'details of the Downer entity that was contracted to provide services at the [Site]' at the relevant time; (g) those investigations and enquiries did not identify the particular Downer entity involved in works at the Site, although the Proposed Defendant was one of several Downer entities identified in the Chat GPT searches conducted by Mr Cvitan;26 (h) the plaintiff's solicitor considered that the 'statute of limitation expiry date' in relation to the incident was 20 October 2025;27 (i) in the circumstances, the writ of summons in this action on 17 October 2025, naming 'various Downer entities which [the plaintiff's solicitors] believed would include the relevant Downer entity'; 28 (j) the Proposed Defendant was mistakenly not named as a defendant despite the criteria identified in the Chat GPT searches conducted by Mr Cvitan, and despite other entities identified in the same search being named; 29 (k) the plaintiff's solicitors, on behalf of the plaintiff, intended to name the Downer entity that had been engaged in the relevant works at the Site as a defendant in the action and had formed the view that one of the named defendants was the intended entity;30 and (l) by letter dated 14 January 2026, the defendants' solicitors: (i) advised that they acted for and had entered appearances for the named defendants, but that the Proposed Defendant (who was not named) was 'the entity engaged to perform the relevant works' at the Site; and (ii) requested that the plaintiff refrain from taking 'any precipitous steps' while they undertook investigations.31 26 Cvitan Affidavit, pars 6, 11, 'JIC3'. 27 First Zupanov Affidavit, par 10(e). 28 First Zupanov Affidavit, par 11. 29 Cvitan Affidavit pars 10, 11, 'JIC3'. 30 Second Zupanov Affidavit, pars 7 - 8. 31 First Zupanov Affidavit 'NYZ3'. -- 13 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 14 20 The defendants' affidavit evidence is largely directed to matters that occurred after appearances were entered for the named defendants on 13 January 2026 and does not contradict the above. Rather, the thrust of the defendants' submissions is that the plaintiff's affidavit evidence is not demonstrative of the kind of error that engages O 21 r 5. 21 I observe that the affidavit evidence filed in support of the application includes statements as to a deponent: (a) having had a subjective intention to sue a particular defendant; and (b) having made a mistake in the defendants that were named. 22 Such evidence may be relevant to, but is not dispositive of, the characterisation of the application and of O 21 r 5 being engaged. Rather, the requisite character of the application (specifically, as to whether it is to correct an error made in naming a defendant) must be determined objectively by the court. 23 It is common between the parties that the Proposed Defendant is the Downer entity engaged to perform the relevant works at the Site at the time of the incident. 24 Based on the affidavit evidence, and the annexed contemporaneous documents, I am satisfied that, at the time the writ was filed, the plaintiff, by his solicitors: (a) from the nature and content of the enquiries referred to in [19(f)], intended to proceed against one Downer entity, being the entity engaged to perform works at the Site at the time of the incident; (b) was not reckless as to the identity of the Proposed Defendant, but rather consistently (albeit belatedly) sought to identify the relevant Downer entity; (c) named multiple Downer entities in the expectation that one of them was the intended defendant; and (d) was mistaken as to the inclusion of the intended defendant. -- 14 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 15 25 I note that this is not a case where the plaintiff, without seeking to enquire further, has simply listed all of the entities associated with a parent company or group. The contemporaneous evidence is supportive of the plaintiff's contention that he sought to identify and include the Downer entity engaged to perform works at the Site, but failed to do so. 26 I consider this to be an error as to the name of the intended defendant and find that O 21 r 5 is engaged. Is it in the interests of justice to give leave to amend? Further affidavit evidence 27 In addition to the matters set out in [19], the affidavit evidence filed in support of the application is to the effect that: (a) by letter dated 23 January 2026, the plaintiff's solicitors sought confirmation from the defendants' solicitors as to the Proposed Defendant being the entity engaged to perform the relevant works at the Site;32 and (b) by letter dated 5 February 2026,33 the defendants' solicitors: (i) confirmed that the Proposed Defendant was the Downer entity engaged to perform the relevant works at the Site; and (ii) advised that they acted for the Proposed Defendant and that, as the limitation period had expired, did not anticipate receiving instructions from the Proposed Defendant to consent to being joined to the action (and that position was confirmed in subsequent correspondence dated 24 February 202634); (c) in response to being served with the application on 18 March 2026, by email dated 14 April 2026,35 the defendants' solicitors advised that the defendants: 32 First Zupanov Affidavit 'NYZ4'; Paxton Affidavit, par 11, 'CJP-2'. 33 First Zupanov Affidavit 'NYZ5'; Paxton Affidavit, par 12, 'CJP-3'. 34 First Zupanov Affidavit 'NYZ7'; Paxton Affidavit, par 14, 'CJP-5'. 35 Paxton Affidavit, par 16, 'CJP-7'. -- 15 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 16 (i) consented to the proposed discontinuance of the proceedings against the first, second, third, fifth and sixth defendants; (ii) neither consented to nor opposed the plaintiff's application to substitute the Proposed Defendant for DES, but only on the basis that leave could be granted without determining whether any relevant limitation period had expired and that the Proposed Defendant reserved the right to raise a limitation defence at trial; and (iii) raising issues with the First Zupanov Affidavit, including that it did not disclose the enquiries made by the plaintiff's solicitors to ascertain the correct Downer entity before 4 September 2025 and did not disclose any basis for the proposed claim against the Proposed Defendant. Parties' positions 28 The plaintiff contends that: (a) the mistake in naming incorrect Downer entities is such that, viewed objectively, there was no reasonable doubt as to the identity of the entity intended to be sued because: (i) it is clear from the indorsement on the writ that the plaintiff intended to sue the Downer entity that exercised supervision and control over his work at the Site at the time of the incident; (ii) the indorsement of the writ was served on DES' registered office, which is also the registered office of the Proposed Defendant; (iii) the Proposed Defendant and DES also have the same directors, legal representative, and ultimate holding company; (iv) the correspondence received from the legal representative of DES and Proposed Defendant, identified in [27(a)] supports the view that the identity of the entity intended to be sued was in fact apparent from the writ; -- 16 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 17 (b) if the application is allowed, the Proposed Defendant will not be prejudiced because: (i) by reason of the matters in sub-paragraph (a), the Proposed Defendant was aware of and in a position to deal with the claim upon service of the writ on DES; (ii) further, as appears from the plaintiff's statement, the Proposed Defendant - by its employees, Jonathan Jackson and Nick Brown - knew of the incident and was in a position to investigate it; (c) by substituting DES with the Proposed Defendant, the plaintiff does not seek to add and will not add to the class of defendants; and (d) in the circumstances, it is just to allow the amendment. 29 The defendants resist the application principally on the basis of its contentions that: (a) although O 21 r 5 expressly provides that the court may allow an amendment of the kind in question without determining whether any relevant limitation period has expired, and the ultimate question for the court is whether it is in the interests of justice to allow such an amendment, whether a limitation period has expired is relevant to the exercise of the court's discretion; (b) in this case: (i) the general limitation period under s 14(1) of the Limitation Act 2005 (WA) (Limitation Act) applies, and that period expired on 19 October 2025; (ii) the plaintiff was aware of a physical injury and, by 8 April 2025 (when he commenced proceedings against PTS), was aware that the injury was attributable to the conduct of a person; (iii) in those circumstances, the 'only basis by which the court may extend the limitation period is by order under s 43(3)(c) [sic] of the Limitation Act'36 and, accordingly, a key issue is whether the plaintiff had made reasonable 36 Defendants' submissions, par 15. -- 17 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 18 enquiries to ascertain the identity of a proper defendant before the expiration of the limitation period;37 (c) the affidavit evidence filed in support of the application: (i) is insufficient to support a finding that the plaintiff made reasonable enquiries within the meaning of s 39(3) of the Limitation Act;38 (ii) does not depose the proposed cause of action against the Proposed Defendant; and (iii) gives rise to an inference that the plaintiff did not make a genuine mistake, but rather failed to act reasonably; (d) the circumstances of this case are distinguishable from those in Praetz because: (i) DES and Proposed Defendant do not share the same ultimate holding company; (ii) no letter of demand has been sent to the Proposed Defendant; (iii) there is no statement of claim and the indorsement on the writ does not adequately disclose the proposed claim against the Proposed Defendant; (e) it is not clear from the indorsement or the affidavit material filed by the plaintiff that the Proposed Defendant is the entity that the plaintiff intended to sue - that is, it is not clear who the plaintiff intended to sue, or for what;39 (f) if the application is allowed, the Proposed Defendant will be prejudiced because the limitation period has expired and the evidence is old; and (g) in the circumstances, it is not in the interests of justice to allow the application. 37 This submission refers to the language of s 39(3)(c) of the Limitation Act, which provides that on an application a court may extend the time for commencing an action if the plaintiff '… was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity'. 38 As considered and applied in Cunningham v Moorevest Pty Ltd [2016] WADC 38 [42] - [61]. 39 ts 23. -- 18 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 19 Disposition 30 Great weight was placed by the defendants in their oral and written submissions on the language and operation of the Limitation Act, with counsel for the defendants contending that: .. the same interests of justice that are relevant to an amendment question are relevant to the policy of the Limitation Act. That is, they are an expression of an intention as to when it's in the interests of justice to allow a cause of action to be brought out of time.40 31 I accept that considerations of delay and the expiration of time are common to applications made under O 21 r 5 and under s 39 of the Limitation Act.41 However, I do not regard that commonality as allowing the language and requirements of s 39(3) of the Limitation Act to be superimposed on applications made under O 21 r 5. Indeed, to do so is in my view contrary to: (a) the express language of O 21 r 5 - because, if the court does not need to determine the expiration of a limitation period, then clearly it does not need to engage in determining whether to extend that period and whether any associated requirements are met; and (b) the nature and import of established authority (as set out in the summary at [9]) to the effect that, precisely because an amendment under O 21 r 5 involves the correction of a mistake, it is properly characterised as the continuation of an existing proceeding against the intended defendant42 and there is 'no occasion to regard it as having the effect of circumventing a limitation defence'.43 32 I therefore find it unnecessary, and decline, to engage in a determination of whether the evidence demonstrates that the plaintiff would be capable of satisfying s 39(3)(c) of the Limitation Act. 33 Further, in dealing with questions of delay under O 20 r 5, it is patent from the authorities that the court's discretion is concerned with achieving a fair balance between: 40 ts 17. 41 Petkov [29] (Buss JA), [115]. 42 Praetz [22(c)]. 43 Collgar [49]. -- 19 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 20 (a) on the one hand, the prejudice occasioned if a new defendant was taken by surprise by the plaintiff's claim, at a late stage of proceedings or after a long period, when its opportunity to gather evidence and build an answering case may be compromised; and (b) on the other hand, the prejudice occasioned if the plaintiff were shut out of an opportunity to run his case against the intended defendant. 34 In this case, that balance falls in favour of the plaintiff because: (a) it is uncontentious that the writ was served on DES, within the time that the defendants contend marks the end of the limitation period; (b) the indorsement on the writ identifies the name of the plaintiff, the date and Site of the incident, and the nature of the claim (being for personal injury damages said to be caused by the negligence or breach of statutory duty of the named defendants); (c) further, prior to the writ being served, the plaintiff had written to the Downer Group in terms that identified the nature and origin of the claim and in terms that clearly conveyed his desire and intention to proceed against the Downer entity 'the Downer entity that was contracted to provide services at the [Site]' at the relevant time. Whether or not this letter constitutes a letter of demand is not determinative - the real issue is whether or not it put the recipient in a position to understand the identity of the intended defendant; (d) contrary to the defendants' contentions in this regard, the evidence is that the Proposed Defendant and DES shared a registered office, common directors and an ultimate holding company;44 (e) in the circumstances outlined above, I consider that: (i) the directors of DES and Proposed Defendant were, at the time the writ was served, in a position to understand and identify that the plaintiff intended to proceed against 44 First Zupanov Affidavit 'NYZ8'; 'NYZ9' (being ASIC company searches extracted on 10 February 2026 and 16 October 2025). -- 20 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 21 the Proposed Defendant in relation to the injuries that he says arose from the incident; (ii) the fact that the plaintiff named more than one defendant does not detract from this conclusion - there has been no suggestion from the defendants that more than one Downer entity was 'engaged to perform the relevant works' at the Site;45 and (iii) the fact that the writ is generally indorsed does not deprive the Proposed Defendant of a sufficient understanding of the claim (indeed, the amendment of a writ - with or without a statement of claim - is expressly contemplated by O 21 r 5); and (f) finally, the defendants contend that it is not in the interests of justice to grant the application because the plaintiff has acted unreasonably. In that regard: (i) on the affidavit evidence, there is some merit in the defendants' contention that the plaintiff delayed making timely enquiries as to the identity of the Proposed Defendant; (ii) however, the application itself has been brought in a timely fashion and after conferral with the defendants (indeed, in the initial period, the plaintiff was asked not to take steps); (iii) some fault on the part of the plaintiff does not preclude the discretion under O 21 r 5 being exercised in his favour, as long as the fault does not deprive the application of the requisite character or cause such prejudice to the Proposed Defendant as to be contrary to the interests of justice; and (iv) in this case, I have found that the application is properly made under O 21 r 5 and, for the reasons above, I do not find that the Proposed Defendant would be prejudiced if the amendment is allowed. 45 First Zupanov Affidavit 'NYZ3'. -- 21 of 22 -- [2026] WADC 70 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 70 [PB] Page 22 Conclusion 35 The application is allowed. 36 I will hear the parties as to the precise terms of the orders that should be made, and as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. JL Associate 4 AUGUST 2026 -- 22 of 22 --