FEDERAL COURT OF AUSTRALIA

Laing v State of Victoria [2005] FCA 791

COURTS – Practice and Procedure - claim for declaratory relief that the respondent contravened a law of the Commonwealth and for the imposition of a penalty – applicant for relief has no standing to claim a penalty – application after the limitation period to substitute an applicant who has standing to claim a penalty – whether there has been a mistake in the name or identity of the applicant - whether the proceeding should be stayed as an abuse of process because it was issued in order to prevent possible claims becoming statute barred –whether the Court has jurisdiction in the proceeding – whether the claim for a penalty should be struck out – whether the proceeding for a declaration without consequential relief should be struck out

Workplace Relations Act 1996 (Cth) ss 83BE(1), 83BH, 298K(2)(d), 298T(2)(d) and (e), 298U

Federal Court of Australia Act 1976 (Cth) s 21

Crown Proceedings Act 1958 (Vic) ss 20 and 22

Limitations of Actions Act 1958 (Vic) s 5(5)

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Federal Court Rules O 13 r 2

Williams v Spautz (1992) 174 CLR 509 – applied

Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 – applied

Evans Constructions Co Ltd v Charrington & Co Ltd [1967] 2 QB 703 – considered

Central Insurance Co Ltd v Seacalf Shipping Corporation (The “Aiolos”) [1983] 2 Lloyd’s Rep 25 – considered

“AA” - “JC” Inclusive v Hickey (1996) 70 ALJR 385 – considered

Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 – applied

Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 – considered

Felton v Mulligan (1971) 124 CLR 367 – cited

L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 – applied

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 – cited

Onus v Alcoa of Australia Ltd (1981) 149 CLR 1 – applied

International Bulk Shipping and Services Limited v Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017 – considered

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 – considered

Australian Competition and Consumer Commission v Frances [2004] FCA 487 – cited

Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 – cited

Wickremasinghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 – considered

Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 – considered

WILLIAM LAING v STATE OF VICTORIA

VID 111 OF 2005

MERKEL J

15 JUNE 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applicant’s claim for the imposition of a penalty be struck out.

2.                  The applicant have leave to substitute Nigel Hadgkiss for himself as the applicant for declaratory relief, which substitution is to have effect as from the date of this order.

3.                  The substituted applicant deliver an amended application and an amended statement of claim within 7 days.

4.                  The respondent deliver an amended defence within 7 days of the delivery of the amended statement of claim.

5.                  The respective motions of the parties dated 25 February 2005 and 15 March 2005 otherwise be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     On 16 February 2005 the applicant (“Laing”) filed an application against the respondent (“the State”) seeking relief under the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) and under the Workplace Relations Act 1996 (Cth) (“the WR Act”).  The relief sought was:

(a)                a declaration pursuant to s 21 of the FCA Act that, on or about 21 February 2003, the State contravened s 298K(2)(d) of the WR Act; and

(b)               an order imposing a penalty pursuant to s 298U of the WR Act in respect of the contravention.

2                     The contravening conduct was alleged to be a refusal by the State, for a reason that is defined as a prohibited reason under s 298L(1)(h) and (j) of the WR Act, to engage Able Demolitions and Excavations Pty Ltd (“Able”) as an independent contractor on a project at Morwell (“the project”).

3                     The persons authorised to make the application, in so far as it related to the penalty sought under s 298U, were the Employment Advocate or any other person prescribed by the regulations: see s 298T(2)(d) and (e) of the WR Act.  Section 83BE conferred power on the Employment Advocate to delegate any of his powers or functions.  Laing was not the Employment Advocate nor was he a person prescribed by the regulations or a delegate of the Employment Delegate.  Accordingly, he was not entitled to make the application in so far as it related to the penalty sought under s 298U of the WR Act.

4                     At the time the proceeding was commenced, Laing was a Commonwealth public servant attached to the Building Industry Taskforce (“the Taskforce”), which was conducting an investigation in relation to the conduct the subject of the alleged contravention.  Laing reported to Nigel Hadgkiss (“Hadgkiss”), the director of the Taskforce, who approved the commencement of the proceeding by Laing.  On 30 June 2004 Hadgkiss was appointed as a delegate of the Employment Advocate pursuant to s 83BE(1) of the WR Act.  By a notice of motion dated 25 February 2005, Laing and Hadgkiss moved the Court for orders amending the proceeding by substituting Hadgkiss for Laing as the applicant.  Leave was also sought to claim that the contravening conduct by the State occurred in the alternative on 26 February 2003 or on 7 March 2003.  The motion, which was opposed by the State, was returnable before the Court on 16 March 2005.

5                     On 15 March 2005 the State filed a notice of motion seeking orders that Laing’s application to the Court be struck out.  The State claims that the application is an abuse of process and that, in any event, the Court has no jurisdiction in the proceeding because it is not authorised by the WR Act.  The State’s motion was also returnable on 16 March 2005.

Background

6                     In order to appreciate the issues arising on the two motions, it is necessary to briefly outline the background to the present dispute.  The dispute arose out of Laing’s investigation, as a member of the Taskforce and as an authorised officer with the powers conferred by s 83BH of the WR Act, into whether the State contravened s 298K(2)(d) of the WR Act by refusing to invite Able to tender for the project.  Laing’s investigation commenced on or about 11 March 2003.  In order to properly conduct the investigation Laing required the production of certain documents by the State, which the State refused to provide.  Laing commenced a proceeding in the Court seeking a declaration that the State was required to provide him with the documents.  On 23 November 2004 the proceeding was dismissed.  Laing filed a notice of appeal but the appeal has not yet been determined.

7                     In the present proceeding Laing is suing the State pursuant to ss 20 and 22 of the Crown Proceedings Act 1958 (Vic), which permit civil proceedings to be taken against the Crown under the title of “the State of Victoria”.  Sections 22 and 25 of that Act provide that the jurisdiction of the court hearing the proceeding, and the rights of the parties, are to be the same as if the proceeding were between subject and subject.  It is common ground that s 5(5) of the Limitation of Actions Act 1958 (Vic) (“the Limitations Act”) applies to the proceeding by reason of s 79 of the Judiciary Act 1903 (Cth).  Under s 5(5) an action to recover a penalty “recoverable by virtue of any enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued”.   As the alleged contravention occurred, at the latest, on 7 March 2003, the period within which any proceeding for a penalty was to be commenced expired on 7 March 2005.  Although the present proceeding was commenced prior to that date, Laing, as the applicant, was not entitled to bring the proceeding in so far as it sought the imposition of a penalty.

8                     The State claims that the proceeding is an abuse of process because it was commenced for the purpose of avoiding the limitation period, rather than for the purpose of obtaining the relief sought in the application.  The State relies on the evidence set out in an affidavit of Craig Rawson (“Rawson”), a solicitor in the employ of the Australian Government Solicitor.  Rawson’s evidence, which was filed in support of the application to substitute Hadgkiss for Laing as the applicant, was as follows:

“7.      Depending on the facts which may ultimately emerge it is possible that the State of Victoria made a decision to refuse to engage Able as an independent contractor on or about any or all of the following dates:

7.1       21 February 2003 when Able were advised by the Project Manager retained by the State of Victoria that they would not be invited to tender for the Project;

7.2       26 February 2003 when representatives of Able met with the Project Manager and were (allegedly) informed that Able had not been on the tender list because its Registration of Interest did not comply with the requirement of the Latrobe Valley Ministerial Taskforce and there was a continuing dispute regarding a previous project undertaken by Able; or

7.3       7 March 2003 when solicitors for the State of Victoria wrote to Able’s solicitor confirming that Able would not be invited to tender for the project.

8.                 If the State of Victoria did decide to refuse to engage Able as an independent contractor and did so because of, or for reasons that included, a reason prohibited by section 298L of the WR Act then it contravened paragraph 298K(2)(d) of the WR Act.

9.                 If Laing is successful in obtaining the State’s documents it is likely that those documents will tend to suggest either that the State of Victoria has, or has not, contravened s 298K(2)(d).  Accordingly the Taskforce does not wish to prosecute proceedings under Part XA of the WR Act until Laing has exhausted his rights to ascertain whether the provision[s] of Part XA have been complied with.

10.             However, for the reasons which follow, in order to protect its position in relation to proceedings against the State of Victoria under Part XA, the Taskforce is required to commence the proceeding within 2 years of the date upon which the cause of action accrued.

The limitation period

11.             It appears that any application commenced in Victoria pursuant to section 298T of the WR Act that seeks the imposition of a penalty in respect of an alleged contravention of section 298K will be subject to the time limitation period provided by subsection 5(5) of the Limitations of Actions Act 1958 (Vic).  Subsection 5(5) of that Act provides that an action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any enactment ‘shall not be brought after the expiration of two years from the date on which the cause of action accrued’.  Accordingly the imminent expiration of any right to commence proceedings under s 298T requires that any such proceedings be commenced now.  If the Taskforce waited until the conclusion of Laing’s investigation to decide that it does wish to commence proceedings against the State it would be statute barred from doing so.

Instructions to commence these proceedings

12.             On 15 February 2005 I spoke to Hadgkiss.  Hadgkiss told me that he had approved the commencement by Laing of proceedings on a protective basis against the State of Victoria in respect of its decision not to allow Able to tender for the project.  On 16 February 2005 I spoke to Laing.  Laing instructed me to commence proceedings on a protective basis pursuant to s 298T of the WR Act against the State of Victoria in respect of its failure to invite Able to tender for the project.  I understood the instruction to institute proceedings on a protective basis as an instruction to institute a proceeding prior to the expiration of any possible limitation period so as to protect the Taskforce against any argument (in the event that the Taskforce does decide to prosecute such proceedings) that the expiration of such a period had removed the Taskforce’s capacity to bring such proceedings.

13.             By reason of subsection 298T(2) of the WR Act Hadgkiss (as a delegate of the Employment Advocate) but not Laing (as an authorised officer) has standing to commence these proceedings.  Accordingly Laing was not entitled to instruct AGS (as he did on 16 February 2005) to commence these proceedings.  However Hadgkiss was so entitled to instruct AGS to commence these proceedings.  While Hadgkiss, in the conversation referred to [in] paragraph 12 above, did not instruct me to commence proceedings against the State of Victoria in his name, I regarded his advice to me that he had approved the commencement by Laing of such proceedings as an affirmation that he wished such proceedings to be commenced by the Taskforce.  On 24 February 2005 I spoke to Hadgkiss who instructed me to seek to substitute himself or Laing as the Applicant in these proceedings, and if successful, to maintain these proceedings on a protective basis on his behalf.  On 24 February 2005 I spoke to Laing who told me that he also wished me to have Hadgkiss substituted for himself as the  Applicant in these proceedings.

14.             Although Laing and Hadgkiss have instructed us to commence these proceedings and to have Hadgkiss substituted as the Applicant, AGS is instructed to do so on a protective basis only and that neither Laing nor Hadgkiss wishes AGS to take any steps to prosecute the proceedings at this stage.  Accordingly the applicant seeks an order that the proceedings should be adjourned to a date to be fixed with liberty given to the Applicant to apply for direction at some later stage.  Both Laing and Hadgkiss have also instructed me to seek leave to file and serve an Amended Application in these proceedings in the form now shown to me and marked ‘CLR-7’.”

9                     Laing and Hadgkiss concede that the proceeding was commenced to prevent the claim for the imposition of a penalty becoming statute barred but deny that that is an abuse of process.  They claim that the proceeding was commenced for the purpose of obtaining the relief sought if evidence became available to enable the applicant to determine that there was a contravention by the State.

10                  The State also claims that the proceeding commenced by Laing is incompetent.  It contends that the Court has no jurisdiction in the matter because Laing had no authority to commence the proceeding under the WR Act.  It then claims that, as the proceeding is a nullity, there is no power to substitute Hadgkiss for Laing.  The State’s alternative submission is that, even if the proceeding is not a nullity, the Court should not permit the substitution as it is not authorised by the Federal Court Rules and, in any event, the Court should not deprive the State of the limitations defence it has to the proceeding.

11                  The substance of Laing and Hodgkiss’ riposte is that the State is confusing jurisdiction with power.  They contend that there is plainly a justiciable dispute about whether the State contravened the WR Act.  The fact, so it is said, that one aspect of that dispute concerns whether the applicant in the proceeding, whether he be Laing or Hadgkiss, has the power to bring the proceeding, does not change that characterisation.  They also claim that the amendment they seek is authorised by O 13 r 2 of the Federal Court Rules, which specifically provides that the amendment may be made, notwithstanding that it is made after the expiration of any relevant limitation period.

12                  The issues that arise on the motions are:

(a)        whether the proceeding is an abuse of process and should therefore be struck out;

(b)       whether O 13 r 2 authorises the substitution of Hadgkiss for Laing as the applicant; and

(c)        whether the Court has jurisdiction in the matter.

Abuse of Process

13                  The abuse of process claim can be disposed of briefly.  The test for an abuse of process is set out in the joint judgment of Mason CJ and Dawson, Toohey and McHugh JJ in Williams v Spautz (1992) 174 CLR 509 at 526-527, where their Honours stated that an abuse of process can arise:

“… when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.”

14                  Brennan J at 535 stated:

“To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include – at least to any substantial extent – the obtaining of relief within the scope of the remedy.”

15                  In my view the present proceeding is not an abuse of process.  It has not been issued for some collateral advantage nor is it being used to obtain some advantage for which it was not designed.  Rather, the proceeding has been issued for the purpose of ensuring that the relief sought can be obtained if and when the applicant has determined that he has the evidence available to establish the cause of action upon which he has relied.

16                  The applicant suspected that there might have been a contravention of s 298K(2)(d) by the State and then sought, and was required to issue a proceeding for, the production of documents to enable a decision to be made as to whether there was a contravention.  However, in order to prevent the limitation period expiring, the applicant commenced the present proceeding to enable the relief sought to be obtained if the documents he was seeking resulted in sufficient evidence being obtained to warrant the continuance of the proceeding. 

17                  Of course, it is correct that when the proceeding was commenced it was not the applicant’s intention to prosecute it to a conclusion.  However, it was his intention to do so if, and when, the evidence warranted that course.  That was not a purpose outside of the scope of the remedy nor was it a purpose that involved seeking some advantage for which the proceeding was not designed.  The course taken by the applicant was proper and reasonable in the circumstances.

18                  No authority was cited for the contention of the State that commencing a proceeding in order to prevent the limitation period expiring was an abuse of process.  Nor was any authority cited for the further contention of the State that an applicant who commences a proceeding on the basis that the applicant merely suspects that the cause of action relied upon might be established, but must await the production of documents to determine if it can be established, is an abuse of process.  The absence of authority in support of the State’s contentions is not surprising as neither of the situations postulated could properly be characterised as a collateral purpose of the kind considered to be an abuse of process in the abuse of process cases.

19                  Accordingly, the State’s abuse of process contentions must be rejected.

Substitution of the applicant

20                  If the substitution of Hadgkiss for Laing is permitted, it will deprive the State of its limitations defence.  However, that consequence is permissible if the amendment enabling the substitution is made pursuant to O 13 r 2 of the Federal Court Rules, which, relevantly, provides:

“(1)     Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(2)       All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

(3)       Where an application to the Court for leave to make the amendment mentioned in sub-rules (4), (5) or (6) or paragraph 7(a) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that sub-rule if it thinks it is just to do so.

(4)       Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.

(5)       Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.

(6)       An amendment to alter the capacity in which a party sues may be made if the new capacity is one which that party had at the date of the commencement of the proceeding or has since acquired.”

21                  Plainly, O 13 r 2(1) and (2) can apply where the amendment does not relate to the name, identity or capacity of a party and no limitation issue arises.  However where, as is the situation in the present case, the amendment relates to the name, identity or capacity of a party and is applied for after the limitation period, the intention of the rule appears to be that O 13 rr 2(3), (4), (5) and (6) apply.  Laing and Hadgkiss contend that the amendment they seek is authorised by O 13 rr 2(3) and (4) as there was a mistake as to the name or identity of the applicant and they are therefore entitled to the retrospective substitution provided for in O 13 r 2(5).

22                  The Victorian counterpart to O 13 r 2 was considered by the High Court in Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 (“Bridge Shipping”).  In that case an amendment to the name of a party was sought after the expiry of the relevant limitation period.  The defendant issued a third party notice against the owner of the vessel that carried goods that were damaged in transit.  However, the defendant subsequently discovered that at the relevant time the vessel was under charter to another company, which it sought to substitute as the third party in place of the owner.  The application failed as there had not been found to be a mistake by the defendant “in the name of a party”.  The reason for that conclusion was that the defendant had intended to sue the owner of the vessel believing that its right of action lay against the owner.

23                  McHugh J (with whom Brennan and Deane JJ agreed) (at 260-261) considered the requirement that there be “a mistake in the name of a party”:

“Moreover, a plaintiff may make ‘a mistake in the name of a party’ not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. 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 person'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, eg 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 property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: ‘The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X.’ The sub-rule applies equally to the case where the plaintiff says: ‘The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X.’ In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else.

Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted 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, was mistaken as to the name of the person who answers that description. In my opinion, Evans v Charrington and Lloyd Steel were correctly decided.”

24                  McHugh J (at 257-258) discussed Evans Constructions Co Ltd v Charrington & Co Ltd [1967] 2 QB 703 (where the court permitted the substitution of the relevant landlord for the original landlord as the party to the proceeding) and Central Insurance Co Ltd v Seacalf Shipping Corporation (The “Aiolos”) [1983] 2 Lloyd’s Rep 25 (“The Aiolos”) (where the Court refused to permit the substitution of an insured for the insurer as a plaintiff):

“On appeal [in Evans v Charrington], Donaldson LJ accepted that it was the intention of the solicitor for Evans to sue the relevant landlord. Accordingly, his Lordship found that there was a genuine mistake of a character to which O 20, r 5(3) could apply. Donaldson LJ said:

‘In applying Ord 20, r 5(3) it is, in my judgment, important to bear in mind that 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.’

Waller LJ who dissented said:

‘In the present case there was no mistake as to name. Mr Greenwood, Evans' solicitor, in his affidavit frankly stated he thought Charringtons was the landlord. The mistake here was not a mistake as to name; it was a mistake as to identity.’

In Central Insurance Co Ltd v Seacalf Shipping Corporation (The ‘Aiolos’), the Court of Appeal refused to extend Evans v Charrington to a case where the applicants were mistaken as to the nature of the rights which they had as plaintiffs. The Court upheld the refusal of an application to add the names of the buyers of goods to the names of the plaintiffs who were the insurers of the buyers. The insurers had sued the defendants in reliance on their rights of subrogation under their contracts of insurance with the buyers. Oliver LJ said:

‘The analogy which Mr Gruder seeks to draw with the Charrington case is not, in my judgment a permissible one. No doubt if the fact were that the actual insurer was not the plaintiff, but, say, a subsidiary company there could or might be a true analogy with that case. But the instant case was not a case, as was the Charrington case, of a mistaken belief that the person made party to the proceedings fulfilled a particular description, videlicet that of landlord or insurer, but a case of an erroneous belief that the plaintiff, because he was in fact what he was thought to be, that is, the insurer, had as a result of that certain legal rights which he did not in fact have. There was therefore no error either as to the name or as to the identity of the party which fell to be corrected, but simply an error of law as to the rights possessed by the correctly identified party. Order 20, r 5(3) simply does not extend to this sort of error and the application under this rule must, therefore, fail.’

Evans v Charrington was followed by Clarke J in Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA.”

25                  In “AA” - “JC” Inclusive v Hickey (1996) 70 ALJR 385 (“Hickey”) the High Court, applying Bridge Shipping, refused special leave to appeal against a decision that refused to allow the substitution of the corporation sole named “Roman Catholic Archbishop of Perth” for the incumbent Roman Catholic Archbishop of Perth, who was sued as the defendant in his name.  The Court concluded (at 385-386) that, on the material, the substitution application could not succeed because the individual named “was the person whom the plaintiffs sued and intended to sue”.

26                  The present case is analogous to Bridge Shipping, The Aiolos and Hickey.  The evidence clearly establishes that it was the intention of Laing and Hadgkiss, and of their solicitor Rawson, that Laing be named as the applicant.  There is no evidence that he was selected to be the applicant by reference to some property or characteristic which is peculiar to Laing (see Bridge Shipping at 260).

27                  The evidence does not even establish that when the proceeding was commenced Laing was named as applicant because it was believed that he possessed some capacity or authority to sue which he did not have.  Rather, the highest that it might be put was that it was subsequently ascertained that there had been an error “as to the rights possessed by the correctly identified party” (see The Aiolos at 31).  The error was that by reason of s 298T(2) of the WR Act Laing was not entitled to commence the application for a penalty.  That error is not a mistake in the name of a party and therefore cannot attract the power of the Court under O 13 r 2(5) to retrospectively substitute the name of a party notwithstanding the expiry of a limitations period.

28                  Laing and Hadgkiss also relied on O 13 r 2(4), claiming there was a mistake as to the identity of the applicant.  Although there is a minor difference between the rule considered in Bridge Shipping (which concerned a mistake in name), and O 13 r 2(4) of the Federal Court Rules (which concerns a mistake in name or identity) I do not regard that difference as material for present purposes as the facts set out above do not establish that there was a mistake as to name or identity.  I would add that the approach of McHugh J in Bridge Shipping may be wide enough to make the distinction between a mistake in name and a mistake in identity one that will have little practical consequence: cf Dawson J at 245.  In any event, the rule that permits the amendment to be retrospective, and is therefore the relevant rule for present purposes, is O 13 r 2(5) which, for some reason, is limited to a mistake in the name of a party and does not extend to a mistake in the identity of a party.

29                  Notwithstanding the apparent intent that O 13 rr 2(3), (4) and (5), rather than O 13 rr 2(1) and (2), apply to the circumstances of the present case, Laing and Hadgkiss argued in the alternative that, even if they failed under O 13 rr 2(3), (4) and (5), they nonetheless were entitled to the amendment they sought under O 13 rr (1) and (2).  In support of that contention they relied on the decision of the Full Court in Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 (“Yong”).  The issue in Yong was whether the Court had jurisdiction in respect of an application for judicial review under the Migration Act 1958 (Cth) (“the Migration Act”), which was commenced by the applicant against the Immigration Review Tribunal within the requisite 28 days after the notification of the decision.  Before the primary judge the Minister claimed that the proceeding was incompetent because the Court lacked jurisdiction in the matter.  The Minister contended that the applicant, by only suing the Tribunal, failed to comply with s 480 of the Migration Act which, relevantly, provided that the parties to the review of a judicially reviewable decision “are” the Minister and the applicant.  In order to ensure the proceeding conformed to the requirements of s 480 the primary judge directed that an amended application be filed naming the Minister as a party.  The Minister’s objection to competency, based on the contention that the Court lacked jurisdiction because a proceeding naming the Minister as the respondent had not been commenced within the requisite 28 day period, was referred to a Full Court.

30                  The Full Court held (at 167-169) that the failure by the applicant to join the Minister as a party to the proceeding did not deprive the Court of jurisdiction as s 480 was not framed as an imperative requirement but, rather, was declaratory of who the parties are to a proceeding commenced within the requisite period.  Although the objection to competency was overruled, the Full Court made the following observations (at 169) concerning amendment:

“For completeness, we should add that, assuming as we have held, that the Court has jurisdiction in the claim for judicial review, it must follow that the Court has power, in the proper exercise of its judicial discretion, to permit any necessary or appropriate amendment to the form of the application filed, including any amendment necessary to ensure that the form of application names the correct parties on both sides of the record.  It must also follow that it is within the jurisdiction of the Court to exercise this power either before, or after, the expiration of the period of 28 days after the applicant is notified of the Tribunal’s decision.  Upon lodgement of a form of application in the matter within the 28 day period, the Court is, as has been said, seized of the claim and the Court may at any time thereafter deal with the matter in accordance with the Court’s practice and procedure, including its power of amendment.  If necessary, that power may be exercised by the Court of its own motion (see O 13 r 2(1)).”

31                  Laing and Hadgkiss contended that Yong is authority for the proposition that O 13 r (2) empowers the Court to amend a proceeding by substituting or adding a party notwithstanding that the amendment is made after the expiry of the limitation period.  In support of that contention they rely on the observations set out above and on a passage in the Full Court’s decision at 168-169 that suggests that Bridge Shipping is not applicable “in a public law context”.  There are three answers to the contention.

32                  The first is that, properly analysed, the amendment in Yong was able to be made under O 13 r 2(2) because the proceeding seeking judicial review had been validly commenced within the requisite period and therefore the subsequent amendment of the proceeding, by substituting the Minister as the respondent, did not deprive the Minister of a limitations defence.  Thus, Yong is distinguishable from the amendment sought in the present case because here it will have the effect of depriving the State of its limitations defence.

33                  The second reason may be expressed as follows.  It is correct that the Full Court in Yong (at 168-169) distinguished Bridge Shipping on the ground that Yong was concerned with “public law” and therefore “the considerations which are relevant to the joinder of parties in private litigation, as Bridge [Shipping] was, are not pertinent”.  However, that observation was made in the context of the Full Court’s consideration of the jurisdictional issue, and not in the context of whether O 13 r (2) may be resorted to if the amendment will deprive a party of a limitations defence.  I would add that the Full Court’s public and private law dichotomy distinction is not easy to follow if it intended it to apply to O 13 r 2.  Plainly, the rationale of O 13 rr 2(3), (4) and (5) is that, if the amendment of the name of a party in any proceeding in the Court is to be retrospective to the commencement of the proceeding, and therefore can deprive a party of a limitations defence, the amendment can only be made under O 13 r 2(5).  Laing and Hadgkiss could not point to anything in O 13 r 2, or in the numerous cases that have applied the rule or its counterparts in other jurisdictions, that indicates that its provisions are to operate differently if the amendment arises in a public law, rather than a private law, context.  It may be that the Full Court was differentiating between cases involving judicial review, where the proper parties are not self evident, and litigation concerning private rights where the parties might be self evident.  Whatever the basis of the distinction might be, I do not accept that the Full Court’s observations have the consequence that O 13 r 2, rather than O 13 r(3), (4) and (5), may be resorted to in a public law context notwithstanding that the amendment is to the name of a party, is to be retrospective and will deprive a party of its limitations defence.  In any event, the present case is not one that involves judicial review of a decision of a tribunal.

34                  The third reason is that even if, contrary to my view, O 13 r 2(2) was applicable, I am not satisfied that I should exercise any discretion the Court has to make the amendment retrospective and therefore deprive the State of its limitations defence.  Any error that may have occurred was not caused or contributed to by the State and I am not satisfied that the circumstances relied upon warrant depriving the State of the benefit of s 5(5) of the Limitations Act.  Of course, if the amendment under O 13 r 2(2) was not retrospective, there would be no point in making it, in so far as the claim for a penalty is concerned.

35                  For the above reasons the application under O 13 r 2(2) to substitute Hadgkiss for Laing as the applicant is to be refused in so far as it concerns the claim for a penalty.  A consequence of that decision is that that claim is untenable as it is not authorised by s 298T(2) of the WR Act and therefore should be struck out.  Before turning to the alternative basis for the substitution, being that Hadgkiss is the appropriate applicant to pursue the claim for declaratory relief (which is not statute barred), it is appropriate to deal with the State’s contention that the Court lacks jurisdiction in relation to the proceeding and therefore there is no valid proceeding to amend.

Jurisdiction

36                  Jurisdiction is conferred on the Court by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) in any matter “arising under any laws made by the Parliament”.  Jurisdiction is also conferred under s 412(1)(a) and (b) of the WR Act with respect to matters arising under the Act in relation to which “applications may be made to it under [the] Act” or in relation to which “actions may be brought in it under [the] Act”.

37                  Section 298T(1) provides for applications to be made to the Court for orders under s 298U.  Laing’s application is an application under s 298T(1) and an action under the WR Act.  Significantly, s 298T(1) is not subject to the application being by a person having standing under s 298T(2).  Rather, s 298T(1) is expressed to be subject to s 298T(4), which, although not relevant to the present case, does state the circumstances in which an application “cannot be made” under s 298T(1).  Thus, standing is not expressed to be a precondition to the conferral of jurisdiction.  As Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ observed in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 28 [25], “s 298T is not defining a condition that must be satisfied before an application can be made or the jurisdiction to hear and determine the application can be exercised”.

38                  In Felton v Mulligan (1971) 124 CLR 367 at 382, Menzies J stated that a matter arises under a law in a proceeding when “it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law.”  Other members of the Court expressed views to the same effect: see 387-388 per Windeyer J, 408-409 per Walsh J and 415-416 per Gibbs J.  Subsequently, in L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 at 581 Gibbs CJ and Mason, Wilson, Brennan, Deane and Dawson JJ approved the statement of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154:

“that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.”

39                  The application of Laing and Hadgkiss, which is contested by the State, is that the State contravened the WR Act.  Plainly, there is a justiciable controversy based upon that Act.  Also, the duties in issue between the parties owe their existence to that Act.

40                  The power to grant the relief sought in respect of the controversy is to be found in s 21 of the FCA Act (the declaratory relief) and in ss 298T(1) and 298U of the WR Act, (the penalty).  The fact that one aspect of the controversy between the parties relates to whether Laing had standing to apply for the imposition of a penalty and another aspect of that controversy relates to whether the Court should retrospectively substitute Hadgkiss for Laing does not affect the characterisation of the dispute as a matter arising under the WR Act.

41                  However, the State contends that, because Laing had no entitlement to commence the proceeding, there was no justiciable dispute between him and the State.  The contention is without merit.  First, it disregards Laing’s claim for declaratory relief, which can stand independently of his claim for a penalty.  Of course, to establish his standing to seek declaratory relief Laing must satisfy the Court that he has a “special interest” in claiming that the State contravened s 298K(2)(d) of the WR Act: see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 36 per Gibbs CJ.  However, that is one of the matters in issue and, even if it is ultimately resolved adversely to Laing, it does not follow that the Court has no jurisdiction in the matter.  Given Laing’s involvement in the dispute with the State, the present case is not one in which it can be said that he is a mere busybody or outsider who has no capacity to create a justiciable controversy with the State in relation to whether it contravened the WR Act: cf Re McBain, Ex parte Catholic Bishops Conference (2002) 209 CLR 372.  Also, the present case can be easily distinguished from cases relied upon by the State where there was no jurisdiction because the applicant lacked any legal capacity to commence a proceeding: see for example International Bulk Shipping and Services Limited v Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017 where the proceeding was a nullity because the plaintiff companies had been dissolved and therefore ceased to exist when the proceeding commenced.

42                  There is also an issue as to whether the Court should exercise its discretion under s 21 of the FCA Act to decline to grant a declaration that the State contravened the WR Act because no consequential relief is being sought.  However, that issue goes to the Court’s discretion, rather than to its jurisdiction: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 98-101, 110 and 113, Australian Competition and Consumer Commission v Francis [2004] FCA 487 at [109]-[110] and Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 32.  Thus, independently of the issue of Laing’s authority to claim a penalty the proceeding is one in respect of which the Court has jurisdiction.

43                  Second, there is no basis for the State’s claim that the requirement that the applicant have the possession of authority to claim the relief sought in the proceeding is an imperative jurisdictional requirement.  In Yong the Full Court considered a similar contention in relation to the failure of the applicant to sue the Minister as a party.  The Full Court (at 167) approached the question of jurisdiction by considering whether, as a matter of construction of the relevant provisions of the Migration Act and in particular of s 480, the existence of the Court’s jurisdiction is dependent on the applicant naming the Minister as a respondent in the application with the consequence that the omission to do so must mean that the Court, either before or after the relevant limitation period, never has jurisdiction to entertain the matter in question.

44                  The Full Court stated (at 167-168):

“It would be surprising if the Act were to be construed to mean that the consequence of a failure by an applicant to take the procedural or formal step of  correctly naming  a particular party as respondent, is that the Court lacks any jurisdiction to deal with any aspect of the matter.  On the other hand, failure to take such a step could readily be seen as a question of practice and procedure and thus within the jurisdiction, and power, of the Court to entertain in the exercise of its discretionary powers to control its procedures.

In our view, the language of Div 2 of Pt 8 makes it clear that the ‘matter’ in respect of which the Court is invested with jurisdiction is, relevantly, an application under s 476, pursuant to s 475(1), to review the decision of the Tribunal.  The Court is seized of that matter upon the filing of an application applying for review of that decision.”

45                  The Full Court also noted (at 168) the absence of mandatory language in s 480, such as “must” or “must not”, that might indicate that the correct naming of parties was an imperative jurisdictional requirement.  Although Yong concerned the correct naming of a respondent, North J in Wickremasinghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 at 130 applied Yong to a case where a visa applicant, rather than the applicant’s sponsor, was incorrectly named as the applicant in an application for judicial review under the Migration Act.  His Honour observed (at 130):

“The failure to correctly name an applicant is no less likely to be dealt with in a statute as a procedural matter than the failure to correctly name a respondent.”

46                  See also Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 at [18]-[19] per Gray J.

47                  In my view, the same principles may be applied in the present case.  The language employed in s 21 of the FCA Act and ss 412(1)(a) and 298T(1) of the WR Act does not warrant the conclusion that it is an imperative jurisdictional requirement under those provisions that only a person having standing to do so may apply for relief.  Rather, the incorrect naming of an applicant for relief is a procedural matter that may go to the Court’s power to grant the relief sought, but is not a matter that leads to it having no jurisdiction in the matter.  Put simply, s 298K prescribes the norm of conduct and other provisions, such as s 21 of the FCA Act and s 298T of the WR Act, provide the remedies while s 39B(1A)(c) of the Judiciary Act and s 412(1)(a) and (b) of the WR Act confer jurisdiction to grant or refuse the remedies.  There is nothing in that legislative scheme that indicates that the correct naming of an applicant is a statutory precondition to the invocation of the Court’s jurisdiction.  Accordingly, the Court has jurisdiction in the proceeding.

48                  That only leaves remaining the question of whether the Court should accede to the application that Hadgkiss be substituted for Laing as the applicant for declaratory relief, albeit that that is the only relief now being sought in the proceeding.  In my view, the substitution should be permitted under O 13 r 2(2).  As explained above, the State has no limitations defence to the declaratory relief, about which there is a real controversy.  In order to enable that controversy to be determined, it is appropriate to substitute Hadgkiss as the applicant. As the delegate of the Employment Advocate and the Director of the Taskforce he plainly has a stronger claim to have standing than Laing and, notwithstanding the State’s submissions to the contrary, there is no discretionary reason why the substitution should be refused.  In allowing the substitution I am proceeding on the basis that Laing and Hadgkiss have acted in good faith in commencing and prosecuting the proceeding to date and wish to claim the relief sought if the documents the State has in its possession warrant that course being pursued.  In those circumstances I am not satisfied that the discretionary reasons put forward by the State constitute an adequate reason to refuse the substitution applied for by both Laing and Hadgkiss.

49                  Finally, Laing and Hadgkiss requested that the Court adjourn the proceeding sine die to await the outcome of the Full Court appeal in relation to the production of the State’s documents.  One of the oddities of the present case is that there has been no request that the Court order that the relevant documents be discovered in the present proceeding.  There may be a reason for that but it is not self evident.  It is correct that the proceeding, as originally formulated, was for the imposition of a penalty, but that will no longer be so.  In any event, the privilege that might lead the Court not to grant discovery in the original proceeding may not have been a privilege which the State, as opposed to an individual, is able to claim.  I need not finally determine that issue at this stage as I am not satisfied that it is not open to the applicant to request discovery and there therefore is no reason to adjourn the proceeding sine die in order to await the outcome of the Full Court appeal.

Conclusion

50                  For the above reasons, Laing and Hadgkiss have failed to satisfy me that O 13 r 2 can, or should, be invoked to substitute Hadgkiss for Laing as the applicant in the proceeding, in so far as it claims a penalty.  Thus, as Laing remains the applicant for a penalty and I am satisfied that he is not authorised to claim a penalty that claim should be struck out summarily.  As the only remaining relief sought is for a declaration that the State contravened the WR Act, it is appropriate to grant Laing and Hadgkiss’ application that the Court exercise its power under O 13 r 2(2) to substitute Hadgkiss for Laing as the applicant in respect of that relief.  The substitution is to be as from the date of the order and is not to be retrospective.  Otherwise the motions of the parties are to be dismissed.

Associate:

Dated:              14 June 2005