FEDERAL COURT OF AUSTRALIA

Environinvest Limited (receivers and managers appointed) (in liq) v The Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller trading as HLB Mann Judd (Vic Partnership) [2012] FCA 1307

REASONS FOR JUDGMENT

INTRODUCTION

1    The plaintiff, Environinvest Limited (receivers and managers appointed) (in liquidation) (Environinvest), sought an order pursuant to r 8.21(1)(c) of the Federal Court Rules 2011 (Cth) (FCR) or alternatively r 8.21(1)(d):

1.    to correct a mistake in the name of the defendant as HLB Mann Judd (Vic) Pty Ltd ACN 083 156 469 (the Corporate Entity), rather than by the correct name, the partnership of Geoffrey C Webster, Clyde P White, Colin S Gridley, David J Nairn, Philip Newman, Mark Peters and Aubrey B Miller with the trading name HLB Mann Judd (VIC Partnership) ABN 20 696 861 713 (the Partnership); or

2.    to correct the identity of the defendant to the Partnership.

Environinvest submitted that it did not seek to substitute a new party.

2    The Partnership was served with the application. The Corporate Entity and the Partnership opposed the application on the grounds that:

1.    the material provided was inadequate;

2.    it was brought in respect of causes of action which were statute barred against the Partnership; and

3.    the Partnership would be prejudiced by the grant of leave.

Alternatively, the Partnership submitted that if leave was granted, then leave should be granted on terms that preserved any limitation defences available to the Partnership at the date of the amendment.

3    On 16 November 2012, the Court made Orders that:

1.    The Plaintiff be granted leave to amend the originating application and further amended statement of claim in the proceedings pursuant to Rule 8.21(1)(d) of the Federal Court Rules 2011 (Cth) in order to correct the identity of the Defendant from HLB Mann Judd (Vic) Pty Ltd (ACN 083 156 469) to the former partnership of Geoffrey C Webster, Clyde P White, Colin S Gridley, David J Nairn, Philip Newman, Mark Peters and Aubrey B Miller with the trading name HLB Mann Judd (VIC Partnership) ABN 20 696 861 713.

2.    The Plaintiff to file and serve an amended originating application and a further amended statement of claim reflecting the terms of the order in paragraph 1 above, and otherwise in the form notified to the Defendant on 19 October 2012, before 4:00pm on Monday 19 November 2012.

3.    By 4:00pm on Monday 26 November 2012, the Defendant file and serve its defence.

4.    By 4:00pm on Monday 10 December 2012, the Plaintiff file and serve its reply, if any.

5.    By 4:00pm on Monday 10 December 2012, the Plaintiff give standard discovery by serving a list of documents.

6.    The Defendant give discovery by serving a list of documents identifying audit work paper files for purposes of the conduct of its audit of the Plaintiff’s 30 June 2005 accounts by 10 December 2012.

7.    By 4:00pm on Monday 10 December 2012, the Defendant file and serve any application for the transfer of the proceeding to the Supreme Court of Victoria.

8.    By 4:00pm on Monday 10 December 2012, the Defendant serve such cross claim and/or make any application for joinder of additional parties as it may be advised.

9.    That this matter be listed for further directions at 9:30am on 13 December 2012.

10.    The matter be listed for trial commencing at 10:15am on 29 April 2013 on an estimate of 4 weeks.

11.    Costs reserved.

12.    Liberty to apply

These are the reasons for making those Orders.

FACTS

4    Mr Michael Barrett, a partner of Finlaysons, the lawyers for Environinvest, filed affidavit evidence in support of Environinvest’s application pursuant to r 8.21 of the FCR. The Partnership did not seek to cross-examine Mr Barrett.

5    Mr Barrett was instructed by Environinvest’s liquidator in mid November 2011 to prepare and issue proceedings against Environinvest’s auditor in respect of the audit of Environinvest’s statutory accounts for the year ended 30 June 2005 (the 2005 year). The audit opinion had been provided on 7 December 2005. There were concerns about the possible effluxion of statutory limitation periods.

6    Mr Barrett explained his understanding and experience in November 2011 was, and remains:

1.    that the appointment of an auditor of a public company in 2011 was and remains a statutory appointment regulated by Pt 2M.3 of the Corporations Act 2001 (Cth) (the Corporations Act); and

2.    the appointment of auditors of public companies were, and are, required to be notified to the Australian Securities and Investments Commission (ASIC) as are any changes in those appointments.

7    Prior to issuing the proceedings in 2011, Mr Barrett commenced his initial investigation into the audit of Environinvest. In about September 2011, Mr Barrett obtained a copy of the accounts of Environinvest for the 2005 year. He reviewed those accounts along with the independent audit report and noted that the opinion was signed “HLB Mann Judd” and Mr David Nairn.

8    In light of those facts, on 14 September 2011, Mr Barrett caused to be conducted online searches of ASIC’s records in respect of Environinvest. He was provided with the ASIC Current and Historical Company Extract in respect of Environinvest. A copy of that search was in evidence. Mr Barrett reviewed the extract and noted that:

1.    it recorded the current auditor of Environinvest as “081 985 515 HLB Mann Judd”; and

2.    the former auditor was “Geoffrey Charles Webster [of] Meyrick Webster & Co Pty Ltd”.

9    Armed with that information, Mr Barrett caused a further search to be conducted of “081 985 515” in ASIC’s records. The ASIC search result recorded the following message:

Document list not available for this organisation Requested: 081985515 Organisation is not of correct type.

10    On the same day, 14 September 2011, Mr Barrett then caused a further search to be conducted for the name “HLB Mann Judd” in the categories of registered companies, businesses, business name reservations, trusts and non-registered entities. That search produced a list of 10 names that were variously a partnership in Queensland, a partnership in Western Australia, and a number of companies including the Corporate Entity. The only entity with a link to Victoria was the Corporate Entity. Mr Barrett’s unchallenged evidence was that the search did not reveal any entity with the registered name “HLB Mann Judd (VIC) Partnership” or “HLB Mann Judd (Vic Partnership)”.

11    Mr Barrett did not stop there. Again, on 14 September 2011, he obtained an ASIC Current and Historical Company Extract for the Corporate Entity. Mr Barrett reviewed the search which revealed that the previous name of the Corporate Entity was “MGI Meyrick Webster Pty Ltd” and Mr David John Nairn had been a director since 1999. Mr Barrett’s unchallenged evidence was that in 2011 he understood Mr Nairn had been the lead auditor for Environinvest’s audits for a number of years.

12    On 21 November 2011, Mr Barrett wrote to Moray & Agnew, the solicitors for the Corporate Entity and the Partnership, and sought (and obtained) confirmation that there was no audit engagement letter for the audit of the 2005 year. Mr Barrett was advised by email from Moray & Agnew that “we are instructed engagement letters were not prepared in every relevant year. One was prepared in 2007 and another had been prepared prior to 2004.” On 24 November 2011, Moray & Agnew provided Mr Barrett with a copy of the audit engagement letter for the audit of the 2003 year. That letter was on the letterhead of “MGI Meyrick Webster”. Mr Barrett gave evidence that he drew a connection between that name and the former name of the Corporate Entity, which he knew from his searches conducted earlier in the month (see [11] above). Finally, Mr Barrett also reviewed time records produced in response to examination summonses served on members of the Partnership.

13    Based on those enquiries, Mr Barrett formed the view that the identity of the auditor of Environinvest was the Corporate Entity. The proceedings were filed on 6 December 2011. Environinvest’s claim alleged breaches of contract, duty of care, statutory duty and misleading and deceptive conduct arising out of the conduct and publication of statutory audit reports for the 2005 year signed by Mr Nairn.

14    The proceedings were served on the Corporate Entity through its solicitors Moray & Agnew on 17 February 2012 who accepted service on behalf of the Corporate Entity. On 24 February 2012, the Corporate Entity filed an unconditional appearance. An Amended Statement of Claim was served on the Corporate Entity on 27 March 2012. The Corporate Entity did not object. A number of interlocutory steps have been undertaken. On 5 September 2012, Environinvest produced to the Corporate Entity the documents provided to Environinvest’s expert for the purpose of the preparation of a report on the liability of the auditor. On 17 September 2012, Environinvest provided the Corporate Entity with a list of the documents that it intended to discover. Also on 17 September 2012, Environinvest informed the Corporate Entity that it relied on reports of two experts – Mr Morris and Professor Boymal – and replacement pages of their reports were provided. Copies of the reports were provided to the Corporate Entity. On 1 August 2012, a mediation was commenced but subsequently terminated by agreement.

15    Then, on 28 September 2012, Mr Barrett received a letter from Moray & Agnew which relevantly stated:

In the interim, and in the light of our instructions, we consider that it is, at the very least, arguable that the auditor of your client at the relevant time was not the named defendant but rather the partnership of HLB Mann Judd.

16    On 5 October 2012, Mr Barrett received a further letter from Moray & Agnew which stated that “[w]e consider there is real doubt that our client was appointed auditor”. On 9 October 2012, following it having been pointed out that there was no record of any entity “the partnership of HLB Mann Judd”, Moray & Agnew advised that “[o]ur client’s position will be that it was not a contracting party”. On 16 October 2012, Mr Webster provided sworn evidence that “the auditor of [Environinvest] for the year ended 30 June 2005 was HLB Mann Judd (Vic) Partnership and not the [Corporate Entity]”. It was then pointed out by Environinvest’s solicitors that “HLB Mann Judd (Vic) Partnership” was not registered under any law of any State or Territory. Subsequently, on 19 October 2012, Moray & Agnew advised on instructions that:

1.    as at 8 December 2005 the appointed auditor of Environinvest was the “Victorian partnership of HLB Mann Judd trading under that name with ABN 20 696 861 713”; and

2.    the partners of the audit firm were Geoffrey C Webster, Clyde P White, Colin S Gridley, David J Nairn, Philip Newman, Mark Peters and Aubrey B Miller.

17    Mr Webster has sworn two affidavits, dated 23 and 26 October 2012, which depose to those matters.

18    It is now common ground that Mr Barrett’s view that the identity of the auditor of Environinvest was the Corporate Entity was erroneous but that Environinvest intended to sue its auditor. It is also common ground that the Partnership no longer comprises the partners referred to above.

ANALYSIS

19    It is against that background that Environinvest seeks an order pursuant to r 8.21(1)(c) or r 8.21(1)(d) of the FCR:

1.    to correct a mistake in the name of the defendant to the Partnership; or

2.    to correct the identity of the defendant to the Partnership.

20    Rule 8.21 of the FCR entitled “Amendment generally” relevantly provides:

(1)    An applicant may apply to the Court for leave to amend an originating application for any reason, including:

(a)    to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or

(b)    to avoid the multiplicity of proceedings; or

(c)    to correct a mistake in the name of a party to the proceeding; or

(d)    to correct the identity of a party to the proceeding; or

(e)    to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or

(f)    to substitute a person for a party to the proceeding; or

(g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

(2)    An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1)(c), (d), (e) or subparagraph (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.

(3)    However, an applicant must not apply to amend an originating application in accordance with subparagraph (1)(g)(ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.

21    The rule is relatively new. What then are the relevant applicable principles? In my view, the principles in Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 are applicable to r 8.21(1)(c) and (d).

22    One way of seeking to determine whether Environinvest’s application properly falls within r 8.21(1)(c) or r 8.21(1)(d) of the FCR is to ask two questions. First, did Environinvest intend to sue its auditor? Second, if so, did it mistakenly believe that the identity of the auditor was the Corporate Entity? In substance, these were the questions posed in Bridge Shipping: see esp at 260-2 adopted at 234. In the present case, the answers to those questions are straightforward: “yes” and “yes” respectively. As mentioned above, there was no dispute that Environinvest intended to sue its auditor. The Partnership accepted that, if Environinvest mistakenly believed that the Corporate Entity was its auditor, then the case would appear to fall within r 8.21(1)(d). The Partnership qualified that submission, however, with a contention that Mr Barrett’s affidavit evidence made it difficult to reach a firm conclusion on that question. I reject that contention. As the evidence considered above demonstrates, Mr Barrett was plainly mistaken as to the identity of Environinvest’s auditor. Environinvest made a mistake in the “identity of a party”. Environinvest should be granted leave to “to correct the identity of a party to the proceeding” (r 8.21(1)(d)).

23    The next issue is whether an amendment under r 8.21(1)(c) or r 8.21(1)(d) of the FCR takes effect on and from the date of the commencement of proceedings or the date of the order for amendment pursuant to r 8.22?

24    Rule 8.22, entitled “Date on which amendment takes effect”, provides:

If an originating application is amended with the effect that another person is substituted as a party to the proceeding, the proceeding is to be taken to have started for that person on the day the originating application is amended.

Environinvest contended that r 8.22 does not apply. The Partnership contended otherwise.

25    The Partnership submitted that the effect of the amendment would be to substitute the Partnership for the Corporate Entity and that, whichever sub-rule of r 8.21(1) applies, the Partnership would be entitled to the benefit of r 8.22, which preserves any limitation defences available to them. So, the Partnership submitted it was entitled to an “order as to Rule 8.22”. The order in fact sought by the Partnership was that:

… in accordance with Rule 8.22 it should be granted on terms that preserve any limitation defences available to the proposed substituted defendants at the date of the amendment.

26    The Partnership submitted that r 8.22 was applicable because it should be construed as seeking to establish a regime consistent with Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 whereby, except in clear cases, decisions on limitation questions are not made at an interlocutory stage and parties’ rights are preserved for argument and final determination at trial.

27    The Partnership has conflated two separate principles or ideas – the application of r 8.22 and the ability to maintain a limitation period defence. It is necessary to deal with each issue separately.

28    First, does r 8.22 apply to the present application? The answer is no. The Partnership’s construction of r 8.21(1)(c) and (d) and r 8.22 is contrary to the express words of the FCR, would render r 8.21(2) otiose and, finally, is contrary to established principle.

29    Rule 8.21(2) expressly provides that an applicant may apply to the Court for leave to amend an originating application in accordance with rr 8.21(1)(c), (d), (e) or (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. Put simply, r 8.21(2) expressly provides that amendments made under, inter alia, r 8.21(1)(c) or (d) can be made notwithstanding the effluxion of a relevant limitation period. Such a result is not surprising. It is not surprising because, consistent with the earlier analysis of “mistake”, such an amendment does not change or alter the substantive basis on which the proceeding was commenced. There was a change in name but that is all – at all relevant times Environinvest intended to commence proceedings against its auditor for the 2005 year. There has been no substantive change in the purpose of the proceedings, the identity of the party intended to be sued, the subject matter of the proceedings or the causes of action pleaded.

30    Indeed, as Environinvest submitted, if the Partnership was correct in its construction of r 8.22 and it was held to apply to a grant of leave under r 8.21(1)(c) or (d), then an order made under r 8.21(1)(c) or (d) would be futile if the relevant limitation period had already expired. Such a result is absurd and should not be adopted.

31    In any event, contrary to the Partnership’s further submission, r 8.22 does not in its terms apply to the circumstances of this case. Rule 8.22 applies when an originating application is amended with the effect that another person is substituted as a party to the proceeding. “Substitution” of a party is addressed in rr 8.21(1)(a), (b), (f) and (g)(ii). “Substitution” is not addressed in r 8.21(1)(c) or (d): cf Ketteman v Hansel Properties Ltd [1987] AC 189 at 200-1. Rules 8.21(1)(c) and (d) address a misdescription of an identified party or an incorrectly identified party. Adapting the analysis of McHugh J in Bridge Shipping at 262, Environinvest made a mistake as to the description of the party that it wished to sue. It intended to sue the auditor and no other party. Environinvest’s mistake was one of misnomer. Put another way, it intended to sue the party that it identified by a particular description (the auditor) but it was mistaken as to the name of the person or persons who answered that description. Although there was arguably a “substitution” in the technical sense, it was not a substitution of “another person” of the kind with which r 8.22 is concerned.

32    If the Partnership’s submission that r 8.22 applied was correct, the consequence would be that any change, however minor, “having the effect” of substituting a new party would take effect on and from the date of the amendment. That would include, for example, the correction of a spelling error. Such a result is absurd, contrary to the express terms of the FCR and established principles.

33    Before leaving this aspect of the judgment, it is important to consider what the Partnership sought – it submitted it was entitled to an “order as to Rule 8.22”. What that means is not entirely clear. If it is intended to refer to an order along the lines that “any limitation defences available to the proposed substituted defendants at the date of the amendment” are preserved, then for the reasons just stated, it is inappropriate for such an order to be made in this case under r 8.22.

34    However, notwithstanding the inapplicability of r 8.22 to the facts of this case, the Partnership may plead any limitation defences. That is not because r 8.22 applies but because the long standing pleading rules permit it: Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 at 488. Accordingly, and contrary to the Partnership’s submission, it is not necessary for there to be an express order to “preserve [their] rights to any limitation defences that may be available to them”. The authorities relied upon by the Partnership (Ketteman and Simplot Australia Pty Ltd v PSL Industries [2001] VSC 419 affirmed (2003) 7 VR 106) do not support the proposition that the Court should do otherwise. Ketteman involved the joinder of an additional party and Simplot concerned an application to amend a claim to rely upon certain pre-contractual conduct. This case is neither of those. The proposition in Wardley at 533 that “it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases” does not arise: cf Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2001) 112 FCR 336 at [40].

35    What then were the remaining grounds of opposition relied on by the Partnership? First, the Partnership submitted that the application was brought on inadequate material. Four grounds were listed, namely:

1.    there was no affidavit from Environinvest’s liquidator, only its solicitor;

2.    there was no explanation for Environinvest’s delay in issuing the proceeding in the first place;

3.    there was no explanation for Environinvest having ignored the obvious evidence about who conducted the audit; and

4.    no draft of the amended pleading was provided.

36    Those grounds are rejected. There was an affidavit from Environinvest’s liquidator. There was no explanation for Environinvest’s delay in issuing the proceeding in the first place; such an explanation was irrelevant. Next, the contention that there was no explanation for Environinvest having ignored the obvious evidence about who conducted the audit is surprising and may be put to one side. The Corporate Entity (and the Partnership) did not themselves raise the issue of the name or names of the auditor for the 2005 year until 28 September 2012 and, then, in far from concluded terms. The final issue was that the form of the proposed amended pleading had not been provided. No amended pleading was necessary; Environinvest intended to sue the auditor and no other party and the causes of action had not changed.

37    The Partnership also submitted that leave should not be granted to Environinvest because of prejudice to the Partnership and other discretionary factors. It was common ground that the Court’s power under r 8.21 is discretionary and that, inter alia, prejudice to a party or persons who may be affected by an exercise of the discretion may be considered by a Court in the exercise of that discretion.

38    The principal facts or matters of prejudice identified by the Partnership were that:

1.    members of staff have left the employ of the Partnership; and

2.    a file asserted to have been created by Mr Nairn concerning the sale of Environinvest’s cattle managed investment scheme business to Great Southern Limited had been lost.

39    In addition, the Partnership also identified the following facts and matters in support of the contention that there was prejudice to the Partnership:

(b)    some of the former partners have only recently become aware of the claim;

(c)    assets of [Environinvest], being the Eurambeen and Beenak properties, are said to have been disposed of by related parties (see section P.5 of the statement of claim);

(d)    further, the proposed substituted defendants are likely, if joined to the proceeding, to raise the liability of the directors of [Environinvest] and parties related to the directors either by way of a third party claim, or a claim for contribution or a defence of proportionate liability. If a claim is made for contribution, then Section 24(4) of the Wrongs Act 1958 (Vic) extends the limitation period in respect of a claim for contribution by the proposed substituted defendants against persons liable in respect of the same damage for a period of twelve months after the writ in the action against the proposed substituted defendants was served on them. Even so, by the time such a claim is brought it will be over 7 years, perhaps well over 7 years, since the events in question and the age of the claim may prejudice the ability of the proposed substituted defendants to prosecute a claim for contribution;

(e)    the proposed substituted defendants have also been prejudiced by the fact that claims against Mr Roger Pescott, a former director of [Environinvest] are barred by his bankruptcy.

40    In the present case, none of the facts or matters identified by the Partnership tend against the grant of leave to amend the originating application under r 8.21(1)(c) or (d). Most, if not all, of the facts and matters identified by the Partnership have existed since the proceedings were commenced. There was no suggestion that a witness had died or was otherwise unavailable. Indeed, the audit personnel who were said to have carried out the bulk of the audit work for the 2005 year have already been examined pursuant to the Corporations Act. Their evidence is known and sworn. It is now not unusual for staff employed by accounting and legal firms regularly to move employers. The old cradle to grave work history path is a thing of the past. Moreover, the matters set out in subparagraphs (b), (d) and (e) in [39] above are not supported by evidence. Indeed, the contention in subparagraph (d) is no more than there may be prejudice. In relation to the bankruptcy of Mr Pescott, the Bankruptcy Act 1966 (Cth) provides procedures for the obtaining of leave to proceed against the bankrupt estate should the Partnership choose to do so. As a consequence, there is no substantive prejudice of the kind considered in MAM Mortgages Ltd (in liq) v Cameron Bros [2002] QCA 330.

41    Finally, there is nothing to suggest that the Partnership is prejudiced by a want of insurance cover: Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 at 219.

42    It is for those reasons that the orders were made on 16 November 2012.

Associate:

Dated:    22 November 2012