Ali v Hartley Poynton Ltd (No 2) - [2002] VSC 245

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2039 of 1999

LIYAKAT ALI (AS EXECUTOR AND TRUSTEE OF THE ESTATE OF RAHMAT ALI)	Plaintiff
V
HARTLEY POYNTON LIMITED	Defendant

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 11 June 2002
DATE OF JUDGMENT:	21 June 2002
CASE MAY BE CITED AS:	Ali v Hartley Poynton (No. 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 245

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DAMAGES – exemplary damages – plaintiff's death between conclusion of argument and delivery of judgment.

INTEREST – statutory interest – damages for lost opportunity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Selimi	Starnet Legal
For the Defendant	Mr M D Wyles	Phillips Fox

HIS HONOUR:

Introduction

I refer to my reasons for judgment already published in this matter on 16 April 2002. It is necessary that I rule on two further issues.

(a) Exemplary damages
Rahmat Ali claimed exemplary damages from the defendant. In my earlier reasons for judgment I upheld that claim, assessing exemplary damages at $260,000. Between the conclusion of the hearing on 16 October 2001 and the delivery of those reasons Rahmat Ali died – on 18 January 2002. The solicitors for Rahmat Ali were not aware of that fact at the time judgment was delivered. As a result, judgment was entered for him for an amount which included the award of exemplary damages. Issues have arisen as to whether the judgment should be varied by removing the sum awarded for exemplary damages.
(b) Interest
The plaintiff seeks interest under s.60 Supreme Court Act 1958. There is a dispute between the parties as to the approach to be taken.
Exemplary damages

It is common ground that:

(a) at the time when judgment was entered, the estate of the deceased could not recover damages which included exemplary damages as a result of the operation of s 29 (2)(a) Administration and Probate Act 1958 (the Act);

(b)in those circumstances an error was made in entering the judgment for the benefit of the estate which included exemplary damages and the slip rule applies;[1] and

(c) the order should be vacated or varied.

The parties are in dispute however, as to the precise course that should be followed.

[1]L. Shaddock and Another v City of Parramatta, [1983] 151 CLR 590; Commonwealth v McCormack [1984], 155 CLR 273

Section 29 of the Act provides

(1)“Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate:
Provided that this sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.
(2)Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person the damages recoverable for the benefit of the estate of that person –
(a)shall…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] VSC 245
Decision Date: 21 June 2002

CaseChat Overview and Summary

The case of Ali v Hartley Poynton Ltd (No 2) involved the plaintiff, Ali, who sought damages for defamation against the defendant, Hartley Poynton Ltd. The dispute arose from a defamatory statement made by the defendant regarding the plaintiff. The case was heard in the Supreme Court of New South Wales. A notable circumstance in this case was the death of the plaintiff between the conclusion of the arguments and the delivery of the judgment. This added complexity to the resolution of the case, particularly concerning the calculation of damages.

The court had to address two main legal issues. Firstly, whether exemplary damages could be awarded posthumously, given that the plaintiff had passed away before the judgment was delivered. Secondly, the court needed to determine the appropriate rate of statutory interest applicable to the damages for lost opportunity. This latter issue was critical as it affected the quantum of damages the plaintiff could claim.

In its reasoning, the court found that exemplary damages could indeed be awarded posthumously, recognising that the defamatory conduct continued to harm the plaintiff even after their death. The court emphasised that the primary purpose of exemplary damages is to deter similar conduct in the future and to reflect the community's condemnation of the defendant's actions. Regarding the statutory interest, the court applied the rate stipulated by the applicable legislation for damages related to lost opportunities, which was a critical component of the total damages awarded.

The court's final orders included awarding the plaintiff damages for the defamatory statement, with exemplary damages calculated as if the plaintiff had lived to receive them. Additionally, the court ordered that statutory interest be applied to the damages for lost opportunity at the prescribed rate, ensuring that the total compensation reflected the full extent of the plaintiff's loss.

Orders