Peter Raymond Smart, Geoffrey Robert Whatley, Anna Marie Flynn and St. John Ambulance Australia (N.T.) Inc. v Dulcie Stuart (as Personal Representative of the Estate of Jennifer May Shillingworth) No. Ap 5/1991 (1992) 107 FLR 119 (1992) 83 NTR 1 (1992) 2 NTLR 43

(1992) 107 FLR 119; [1992] NTSC 19

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Interrogate

Catchwords

1. Practice and Procedure
2. › Amendment
3. › Amendment of writ and statement of claim
4. › Mistake in capacity of party
5. › Whether error in describing plaintiff as personal representative is correctable mistake or incurable nullity
6. › Whether amendment permitted after expiry of limitation period
7. › Supreme Court Rules (NT), O36.01(1), (4), (6)
8. › Limitation Act (NT), s 48A
1. Limitation of Actions
2. › Expiry of limitation period
3. › Amendment of proceedings after limitation period expired
4. › Abrogation of rule in Weldon v Neal
5. › Whether defendant prejudiced by amendment
6. › Limitation Act (NT), ss 48, 48A
7. › Supreme Court (Rules of Procedure) Act 1987 (NT), s 20
1. Practice and Procedure
2. › Parties
3. › Capacity to sue
4. › Plaintiff suing as personal representative without authority
5. › Whether writ is nullity
6. › Compensation (Fatal Injuries) Act 1980 (NT), ss 7, 8, 13

Quick Take

A writ commenced by a plaintiff described as suing in a representative capacity she does not hold is not a nullity but contains a correctable mistake amenable to amendment under O36.01(1) of the Supreme Court Rules (NT). The amendment may be permitted notwithstanding expiry of the limitation period under s48A of the Limitation Act (NT), provided no prejudice beyond loss of the limitation defence is shown. The English authorities treating such writs as incurable nullities ([name withheld] v Sutton Steam Laundry, [name withheld] v [name withheld]) are not followed in the Northern Territory.