100209407

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES PREMILA LEVACI

APPLICANT

 -v-

 CAROLYN LAWRENCE - CHIEF EXECUTIVE OFFICER CANNING DIVISION OF GENERAL PRACTICE LTD

RESPONDENT

CORAM COMMISSIONER J H SMITH

DELIVERED 8 MARCH 2002

FILE NO/S APPLICATION 601 OF 2001

CITATION NO. 2002 WAIRC 04933

_______________________________________________________________________________

Result Order made to amend name of Respondent

Representation

Applicant Ms C Bahemia (of counsel)

Respondent Mr C Martel (of counsel)

_______________________________________________________________________________

Reasons for Decision

1          Ms Premila Levaci ("the Applicant") caused to have filed on her behalf by her agent, Ms Emma Cole, an Industrial Officer of the Australian Services Union ("the Union"), an application on 2 April 2001, claiming the Applicant was harshly, oppressively and/or unfairly dismissed on 13 March 2001.

2          In the Particulars of Claim, the name of the Applicant's employer is stated as Carolyn Lawrence, Chief Executive Officer ("the Respondent").  On the face of the Form 1 the application is addressed to Carolyn Lawrence, Chief Executive Officer, Canning Division of General Practice Ltd, 1133 Albany Highway, Bentley WA 6102.  The Commission file records that the application was served by Ms Cole upon Ms Lawrence.

3          The Respondent filed a Notice of Answer and Counter Proposal on 24 April 2001.  In the Notice, "the Employer" is defined to mean in the Answer the Canning Division of General Practice Ltd and "the Respondent" to mean Carolyn Lawrence.  Paragraphs 3 to 5 of the Answer state as follows:

"3. The Respondent was not the Applicant's employer.  The Employer employed the Applicant at all material times.

4. The Applicant ought to have been aware of the correct Respondent because the identity of her employer was readily apparent from all of her employment documents (for example, see the Applicant's letter of offer dated 11 July 2000 ("Annexure A").

5. This is not a situation in which the Applicant has incorrectly described the Respondent.  Rather, the Applicant has vexatiously named the wrong entity as the Respondent when she knew full well the correct identity of her employer."

4         This matter was listed for hearing as a preliminary matter.  In a letter from the Respondent's Solicitors dated 20 November 2001 to the Commission, the Commission was advised:

 "We seek the matter be listed for a preliminary hearing on the issue of jurisdiction.  The applicant has named Carolyn Lawrence, the CEO of Canning Division as the respondent employer.  Carolyn Lawrence, at all material times, was never the employer of Premila Levaci.  This is a matter that either:

1. the applicant was aware of at the time of making the application; or
2. the applicant ought to have been aware at the time of making the application.

It is contended that the applicant has vexatiously pursued Carolyn Lawrence prior to and since the dismissal, and has abused the process by naming Carolyn Lawrence as the respondent.

Our client will be opposing the correction of the identity of the respondent, whether by replacing Carolyn Lawrence as the respondent or adding Canning as a respondent.  This is obviously a critical matter that needs to be resolved before the matter can be substantively dealt with by hearing on any basis.

We therefore request the matter be set down, at the Commission's earliest convenience, for hearing on this point and we foreshadow that our client will be moving to have the application struck-out."

5         In a further letter to the Commission dated 17 December 2001, the Respondent's Solicitor advised:

 "We refer to our telephone conversation on Tuesday, 4 December 2001 regarding your query of whether the decision in Parveen Kaur Rai v Dogrin Pty Ltd (2000) 80 WAIG 1375 ("Dogrin") precludes an amendment being made to the listing of the respondent to a claim, without the respondent's consent.  In the matter at hand, Premila Levaci has incorrectly named Carolyn Lawrence as her employer, and we are of the opinion that this error should not be corrected."

 "… We contend that the applicant has not sufficiently discharged her responsibility in commencing this litigation, and should not be allowed to subsequently proceed against another party.  We believe that the facts warrant a preliminary hearing in order that full submissions on the issue may be made prior to the Commission deciding whether it will exercise it's discretion under section 27 to amend or to strike-out the application."

6         At the outset of the hearing, Counsel for the Respondent, Mr Martel, advised the Commission that the Respondent was not aware that there was an application before the Commission to amend the name of the Respondent.  For the reasons set out below that contention is not correct.

The Evidence

7         Ms Cole testified that the Applicant is a member of the union and that prior to the Applicant's employment being terminated she (Ms Cole) met with the Applicant and Ms Lawrence to discuss disciplinary issues.  After the meeting the Applicant's employment was terminated.  Ms Cole testified that she was aware that Canning Division of General Practice Ltd was the employer of the Applicant and not Ms Lawrence.  After the Applicant was dismissed Ms Cole prepared the Form 1.  She typed in the name and address of the Respondent.  She named Ms Lawrence as the employer in the application even though she had no instructions from the Applicant to do so.

8         The Applicant testified that she understood at all material times that her employer was the Canning Division of General Practice Ltd.  She agreed that she signed the Form 1.  She said shortly after the application was filed a friend of hers who is a legal practitioner advised her that the application wrongly identified Ms Lawrence as her employer.  The Applicant said she raised this with Mr Simon Bibby, an Industrial Officer employed by the Union, as Ms Cole was away on leave.  On 11 April 2001, Mr Bibby wrote to the Board of Directors, care of the Chairperson of the Canning Division of General Practice Ltd as follows:

"Dear Sir

P Levaci – Application 601 of 2001

This letter confirms that the Australian Services Union represents Premila Levaci in the above mentioned matter.

Further, this application is made against the Canning Division of General Practice Ltd and not against any individual.

Yours sincerely

Simon Bibby

Principal Industrial Officer

Australian Services Union"

9         On return from leave, Ms Cole wrote to the Commission on 27 April 2001.  In that letter she stated:

"Dear Sir

Application No. 601 of 2001

Ms P Levaci and Canning Division of General Practice Ltd

I write in relation to the Notice of Answer and Counter Proposal lodged by the Respondent on 24 April 2001.

The Respondent has been incorrectly described in part.  It will by my intention to seek a formal amendment under section 27 of the Industrial Relations Act 1979 at the time of hearing to delete reference in the Application to the Chief Executive Officer, Ms Carolyn Lawrence.  The Canning Division of General Practice Ltd will remain as the named Respondent in this matter.

I completed the Application on behalf of the Applicant and, therefore, assert that it was in fact a situation whereby the Respondent was incorrectly described by the Applicant's representative.  The Applicant has not vexatiously named the wrong entity as the Respondent, as stated in the Respondent's Notice of Answer and Counter Proposal.  Such a claim would need to be substantiated by the facts of the case, and not by way of an inaccuracy in the initial Application.

For your information, I attach a letter dated 11 April 2001 from the ASU to the Board of Directors of the Canning Division of General Practice Ltd clarifying the intent of the Application.

Yours sincerely

Emma Cole

Industrial Officer

Australian Services Union"

10      Mr C Martel advised the Commission that the Respondent did not receive a copy of the letter set out in paragraph 9 of these reasons until the day before the hearing of this preliminary issue.

11      Pursuant to s.32 of the Industrial Relations Act 1979 ("the Act") the Commission convened a conciliation conference on 6 June 2001 in respect of the application.  The Commission file records that Ms Cole appeared on behalf of the Applicant and Mr G Bartlett (of counsel) appeared on behalf of the Respondent.  Both the Applicant and the Respondent attended.  The Applicant gave uncontradicted evidence that at the conference the issue of amendment of the Respondent's name in the Application was raised.  She said Ms Cole informed Mr Bartlett that if there was a need to amend the application she, Ms Cole, "would do so".

12      After the s.32 conference on 6 June 2001 Ms Cole ceased to represent the Applicant and the Applicant instructed Hammond Worthington Lawyers to act on her behalf.

13      The Commission file records that a further s.32 conciliation conference was convened on 5 November 2001.  At that conference Ms C Bahemia (of counsel) appeared on behalf of the Applicant and Mr Bartlett appeared on behalf of the Respondent.  At the conclusion of the conference the parties were advised the substantive application would be listed for hearing on 18, 19 and 20 March 2002.

Submissions

14      Mr Martel on behalf of the Respondent made the following submissions:

(a)     The Commission has no jurisdiction to amend the name of the Respondent to substitute Canning Division of General Practice Ltd as to do so would create a cause of action against the Canning Division of General Practice Ltd.  If the amendment sought is made the new cause of action is out of time by reason of operation of s.29(2) of the Act.

(b)     The Commission has no inherent jurisdiction.

(c)     The decision of the Full Bench in Rai v Dogrin Pty Ltd (2000) 80 WAIG 1375 can be distinguished.  It is contended on behalf of the Respondent an amendment can only be made to the name of a party out of time where the mistake is "in the name of the party" and not a mistake as to the person who answered the description of employer.

(d)     The Commission should not exercise its discretion to amend the application as the Applicant has inordinately delayed in making an application to amend.

15      It is argued on behalf of the Applicant that:

(a)     The Commission has power to amend pursuant to s.27(1) (l) and (m) of the Act and it should make the amendment as to do so is in the interest of equity, good conscience and the substantial merits of the case (s.26(1)(a) of the Act);

(b)     The evidence establishes that the Respondent was wrongly named as the employer in the application through a mistake made by Ms Cole;

(c)     To amend would cause no prejudice to the Respondent as the error was brought to the attention of the Respondent at an early stage of the proceedings;

(d)     The mistake made by Ms Cole is clearly a "mistake in the name of a party".

Legal Principles

16      In Rai v Dogrin Pty Ltd (op cit), the decision appealed against was whether the Commission at first instance erred in refusing to allow the name of the Respondent be amended from Dogrin Pty Ltd to Julie Khan or Julie Khan and Opel Khan.  The Application to amend was made at the conclusion of a substantive hearing.  Documentary evidence tendered on behalf of the Applicant was confusing in that at least three payslips identified Dogrin Pty Ltd as the employer, whereas a group certificate named Julie and Opel Khan trading as "Bibendum at the Colonnade" as the employer.  At the hearing at first instance, it was submitted on behalf of the Respondent to the appeal, that on the authority of The Owners of Johnston Court Strata Plan No. 5493 v Dumancic (1990) 70 WAIG 1285 that this was the case of a wrong party being named, not a misdescription of the party's name.  At the appeal the Appellant contended that the amendment sought was properly made when regard was had to the principles enunciated by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA and Anor (1991) 173 CLR 231.

In Bridge Shipping Pty Ltd v Grand Shipping SA and Anor (op cit) Philip Morris Ltd had engaged the Appellant to arrange for the carriage of containers to Melbourne.  When the containers arrived at Melbourne they were damaged.  Philip Morris Ltd sued the Appellant.  The Appellant issued a Third Party notice against the registered owner of the vessel.  The Appellant later discovered the vessel had been under charter to another company which had therefore been the carrier of the goods.  The Appellant then sought to substitute the charterer as third party in place of the owner.  The amendment was refused.  The majority of the High Court held that because the Appellant had intended to sue the owner of the vessel believing that its right of action lay against the owner, the Appellant had not "made a mistake in the name of the party" within sub rule (4) of Rule 36.01 of the Rules of the Supreme Court of Victoria.  Sub rule (4) allowed the Victorian Supreme Court to correct mistakes in the name of a party under sub rule (1) which empowered the Court to correct any defect or error in any proceeding.  One of the questions considered by the High Court was whether Rule 36.01 sub rule (4) was restricted to cases of misnomer, clerical error and misdescription per se.  At 248 Toohey J observed:

"The issue is whether the substitution sought by Bridge Shipping is by reason of a "mistake in the name of a party".  Bridge Shipping says that there was such a mistake.  It thought that Grand Shipping was the carrier of the goods; it knows now that Rainbow Line was the carrier.  But, answers Rainbow Line, there was no mistake in the name of a party.  This is not a case of Bridge Shipping intending to join Rainbow Line as a third party and getting the name wrong.  It meant to join Grand Shipping because it was the owner of the ship and Bridge Shipping assumed (wrongly, as it turned out) that the bill of lading was issued on behalf of Grand Shipping."

17      In considering the history of sub rule (4) of Rule 36.01, McHugh J (with whom Brennan and Deane JJ agreed) considered a similar English provision and observed that Donaldson LJ in Evans Constructions Co Ltd v Charrington & Co Ltd [1983] QB 810 gave the English provision a wide meaning.  In that case at 821 Donaldson LJ said:

"… there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A, and thereby ending up suing A instead of B.  The rule is designed to correct the latter and not the former category of mistake.  Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances."

McHugh J at 258 in Bridge Shipping observed Evans Construction Co Ltd v Charrington & Co Ltd was followed by Clarke J in Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212.  McHugh J held at 261 that Evans v Charrington and Lloyd Steel were correctly decided. 

18      In Rai v Dogrin Pty Ltd (op cit), the President (with whom Gregor C agreed) held at 1378 that s.27(1)(l) and (m) and s.26(1) of the Act gives the Commission wider powers (than Rule 36 of the Rules of the Victorian Supreme Court), to amend the name of a Respondent if it were found that there was a misdescription in the name of the employer.  Further that even if that proposition was not correct they held the principle in Bridge Shipping Pty Ltd could be applied.

19      Whether or not the Commission should make an amendment to substitute a new party outside the time prescribed by s.29(2) of the Act, is discretionary (Rai v Dogrin Pty Ltd per Fielding SC at 1379-1380).

20      In The Owners of Johnston Court Strata Plan No. 5493 (op cit), the Industrial Appeal Court considered a decision made by the Industrial Magistrate to amend complaints to name the Appellant as the Respondent.  The complaints were initially made against the Council of Owners of Johnston Court.  Pursuant to the provisions of the Strata Titles Act 1985 the functions of the Appellant as a company were to be performed by the council.  The council had no corporate status.  The Industrial Appeal Court held that the decision to amend was proper as the facts established that it was not a case of naming the wrong defendant but simply a case of getting the proper defendant's name right.  At 1287 the Court held:

"… Justices cannot substitute a new party for the defendant unless the party so substituted waives the irregularity.  It is trite to say that the same rules apply in the civil procedure.  This is not the case of the wrong person being charged.  The only 'person' capable of being charged was the strata company and the facts disclose that the only 'person' capable of instructing solicitors was the spokesman for that company, namely the council, which exercises the company's function.  The council has no separate legal corporate existence apart from the strata company.  This is not a case where anyone (had they considered the matter) would have concluded that the named defendant was meant to be the individual persons who constituted the council of the corporate body.  The defendant could only be the corporate body, and the only entity capable of instructing solicitors to defend the charges was the council of the corporate body."

Conclusion

21      It is clear that the naming of the Respondent as the employer was an error made by Ms Cole which can be described as a clerical error or misnomer.  It is also clear from the evidence that the Applicant at all times intended to make a claim against Canning Division of General Practice Ltd and not Ms Lawrence.  She made no mistake as to the identity of her employer.

22      In my view the mistake made by Ms Cole was a mistake that can be characterised as a simple “error, defect or irregularity" within the meaning of s.27(m) of the Act and is capable of amendment.  If I am wrong about that, in any event subject to the matters set out below in respect of an exercise of discretion the mistake made by Ms Cole is a "mistake in the name of the party" and equity, good conscience and the substantial merits of the case require the mistake to be remedied.  On the application of the principles set out in Bridge Shipping Pty Ltd v Grand Shipping SA and Anor the jurisdiction of Commission is invoked to enable it to exercise the powers in s.27(1)(l) or (m) to amend.

23      I am of the view that I should exercise the Commission's discretion to amend the name of the Respondent by deleting the name of Ms Lawrence and substituting the name of Canning Division of General Practice Ltd.  The reasons why I have reached this view are as follows:

(a) In matters of practice and procedure it is a principle that where a Court or Tribunal is called upon to consider the actions of a litigant and his or her legal advisers in making a decision whether to grant an interlocutory application and the conduct complained of is conduct for which the adviser alone is responsible, the Court or Tribunal, will regard the conduct as less severe against the litigant than when the litigant is personally responsible for conduct complained of (see Ulowski v Miller [1968] SASR 277 at 282, 285).

(b) Both Ms Lawrence and the Canning Division of General Practice Ltd were given notice within 25 days of filing the application that the Applicant's claim was made against the Canning Division of General Practice Ltd.  Plainly the Respondent's contention that the Applicant has inordinately delayed in making an application to amend is misconceived.  The issue was raised at an early stage of the proceedings.

24      In light of the matters set out above I will make an order that the name of the Respondent be deleted and that there be substituted therefor the name, Canning Division of General Practice Ltd.