Bridge Shipping Pty Ltd (Bridge) organised the carriage of 32 containers of tobacco on the Green Sand from Rio Grande, Brazil, to Melbourne, Australia. The Green Sand's registered owner was Grand Shipping SA (GS). Bridge did not know who the carrier was at the time that it arranged the shipment. Several containers of tobacco were found to be missing or their contents damaged when the vessel arrived in Melbourne. After Bridge was sued for damages by the consignee, Philip Morris Ltd (PM), it sought an indemnity or contribution from GS. After the limitation period for bringing an action against GS had already expired, Bridge discovered that the Green Sand was bareboat chartered to Rainbow Line SA (Rainbow) at the time the tobacco was shipped, making Rainbow the carrier. Bridge applied under r 36.01(1) of the Victorian Supreme Court Rules to substitute Rainbow for GS. Rule 36.01(1) allows the Court to order that a document in the proceeding be amended, or to grant a party leave to amend a document for the purpose of correcting an error.

The application was initially refused and Bridge appealed to the High Court. This case concerned the validity of that application and whether the complete shift from one party to another in fact constituted a 'mistake in the name of a party' able to be corrected in compliance with r 36.01(4). This rule states that mistakes in the names of parties can be corrected under r 36.01(1) whether or not another person is substituted as a party as a result.

Held: Appeal dismissed. The issue at hand was not a mistake in the name of a party, but rather the complete misapprehension as to which party Bridge could sue.

When the containers were shipped, bills of lading were issued on behalf of the master of the Green Sand. The carrier was not named in the bills. The bills also incorporated the Hague Rules, rendering these applicable. Bridge assumed that GS was the carrier because it was also the owner, as listed in Lloyd's Register.

Article 3.6 of the Hague Rules provides that the carrier and vessel will be released from liability for loss or damage to cargo after a year has passed since the date of delivery, or the date when the goods ought to have been delivered. The containers of tobacco arrived in Melbourne and were unloaded between 21 July and 23 August 1986, with PM commencing action against Bridge on 8 January 1987.

Bridge was unable to join Rainbow as a third party under the Victorian Supreme Court Rules. If Bridge joined Rainbow as a party, proceedings would be deemed to have commenced at the point of amendment, not at the point when proceedings were initiated against GS. Rainbow could then have relied on art 3.6 of the Hague Rules as a defence, and Bridge's application to add it as a party would inevitably be denied.

The Court revisited the background of the Victorian Supreme Court Rules, specifically in relation to what was meant by 'mistake' and the history of substituting or striking out parties. The most important question in this matter was what the difference was between correcting a misdescription or mistake, and adding or substituting parties. In general, no new person is substituted when a mistake is corrected, because the same person remains, only they are no longer misnamed or misdescribed. This would also not defeat a statute of limitations, theoretically, because it is a minor change. The purpose behind correcting an error is to put a plaintiff's intentions on paper - that is, the intention all along to sue the one party, who has been misnamed or misdescribed up until that point. These types of changes have been allowed even when an action would have been statute-barred at the time of amendment (Whittam v WJ Daniel & Co Ltd [1962] 1 QB 271).

Rule 36.01(1) is concerned only with the Court's inherent jurisdiction to amend defects or errors; the substitution, addition and removal of parties is specifically dealt with elsewhere in the Victorian Supreme Court Rules (in r 9.06). Rule 36.01(4) allows for party substitution only in limited cases and where it is unavoidable as a result of fixing a misnomer.

The appeal of r 36.01 is that it allows the Court to order the substitution of a party for another regardless of the expiry of any relevant limitation period (here, the limitation period imposed by art 3.6 of the Hague Rules). Usually the addition, removal, or substitution of a party (r 9.06) would mean that proceedings against that party commence upon amendment, and if the limitation period for the plaintiff's cause of action has already come and gone by that point, the whole act is pointless.

There is a difference between mistaking the name of a party and mistaking their identity. The distinction can be a fine one and it depends on the facts of the case at hand. Whether there is a mistake as to one or the other depends on whether the party whose name is being amended would remain identical in all but name or description if the amendment was allowed. If yes, there is a misnomer or misdescription in issue, and r 36.01 applies, even if a different party is substituted due to the change. If the party's entire identity will be changed by the correction, the rule does not apply.

The Court concluded that Bridge did not make a mistake when it joined GS to the proceedings, because it fully intended to sue GS as the owner of the Green Sand and did so. Bridge's mistake was thus not one of misnomer, clerical error or misdescription. Nor was it one where, intending to sue a person whom it identified by a particular description, it was mistaken as to the name of the person who answered that description.The mistake which Bridge made was that it believed that it had rights against the owner of the vessel. But that was not 'a mistake in the name of a party'. Bridge could therefore not rely on rr 36.01(1) and (4) to substitute Rainbow instead.