Aristotite, Rosetta v Gladstone Park Shopping Centre Pty Ltd

[1983] FCA 165

ARISTOTITE v. GLADSTONE PARK SHOPPING CENTRE PTY LTD (1983) 71 FLR 276
Trade Practices

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Trade Practices - Practice and procedure - Statement of claim - Leave to amend statement of claim to include allegations of injury - Whether amendment introduced statute-barred cause of action - Trade Practices Act 1974 (Cth), ss 4K, 52(1), 53A(1), 82(1), 82(2).

HEADNOTE

In an action based upon conduct allegedly in contravention of s. 52(1) or of s. 53A(1) of the Trade Practices Act 1974 (Cth) the applicant sought leave to amend the statement of claim to add, as particulars of loss and damage, physical and psychological harm. The applicant also sought leave to amend the statement of claim by pleading an action for damages upon the case based upon the decision in Beaudesert Shire Council v. Smith (1966) CLR 145.

Held: (1) The applicant should be granted leave to amend the particulars to allege physical or psychological harm as:

(a) every kind of "loss or damage" which the law recognises as compensable in damages and which has been suffered by conduct of a description comprehended by s. 82(1) of the Trade Practices Act 1974 is within the single cause of action which that section read with s. 4A creates;

(b) the proposed amendment introduced no new cause of action.

Weldon v. Neal (1887) 19 QBD 394, distinguished.

Cutrona v. Harnishchfeger of Australia Pty Ltd (1977) VR 306, referred to.

(2) The applicant should be refused leave to amend the statement of claim to allege an action on the case because the proposed pleading lacks sufficient precision; however, such refusal was without prejudice to any further application.

HEARING

1983, July 25. #DATE 25:7:1983

APPLICATION.

The applicant sought leave to amend a statement of claim filed in an action under the Trade Practices Act 1974.

W. J. Martin, for the applicant.

L. Glick, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: T. Irlich.

Solicitors for the respondents: Mercer Lewenberg & Pryles.

T.J.G.

JUDGE1

25 July 1983.

JENKINSON J. Motion for leave to amend the applicant's statement of claim.

The statement of claim, which was filed with the application on 13 December 1980, alleges that certain conduct which occurred in and before August 1979 was done in contravention of s. 52(1) or of s. 53A(1) of the Trade Practices Act 1974 (Cth) and that the respondents were involved in each contravention. It is then alleged, in a later par.: "16. By reason of the facts aforesaid, the applicant has suffered loss and damage."

Neither in the particulars under that par. nor elsewhere in the statement of claim is it suggested that the applicant was caused any physical or psychological harm by the conduct pleaded.

In March 1981 the respondents delivered a request for further and better particulars of the statement of claim. Paragraph 10 of that request is in these terms:

"10. Under par. 16 thereof:

Of the allegation that the applicant suffered a nervous breakdown -

(a) precise particulars of the type and nature of the injuries and/or complaints constituting the nervous breakdown;

(b) the date or dates when the applicant suffered the nervous breakdown;

(c) particulars with dates and amounts of all earnings lost in consequence of the injuries;

(d) particulars of any loss of earning capacity resulting from the injuries specifying -

(i) the period for which the applicant claims he has lost and will lose earning capacity;

(ii) the extent to which the applicant claims he has lost and will lose earning capacity;

(iii) the nature and cause of the loss of earning capacity;

(iv) the earnings of the applicant claims he has lost and will lose by reason of his loss of earning capacity."

It was said that this request was mistakenly copied into the document because of some confusion between this application and another application in which the respondents' solicitors were engaged.

Further particulars filed on 30 April 1981 in response to that request included the following:

"10. Pursuant to par. 10 thereof:

The applicant intends to apply to amend the statement of claim herein to claim for her personal pain and suffering and will do so once the precise particulars sought in par. 10 of the request are available."

One of the amendments which the applicant now, in July 1983, seeks leave to make is to add to par. 16 of the statement of claim and the particulars thereunder the following italicised words:

"16. By reason of the facts aforesaid, the applicant was injured and has suffered loss and damage.

Particulars of Injuries

Moderate to severe anxiety with depression, with nervous ticks marked by tremor and also grimacing of the mouth.

Particulars of Economic Loss

But for her medical condition the applicant who was born on 12 July 1932 would have been able to conduct a business of a similar kind to that which she conducted at the Gladstone Park Shopping Centre and earn a net annual (sic) income of $300 from 17 January 1980 to the present.

Alternatively, the applicant would have been employed as a shop assistant earning (at present rates) the sum of approximately $160 net per week. In fact, apart from casual work with relatives varying from one to five days per week for which the applicant is not paid otherwise than by receipt of food for her personal use, the applicant has been unable to obtain employment and has accordingly suffered since 17 January 1980 to 14 July 1983, a period of 182 weeks at the rate of $160 per week, a loss of $29,120 which loss is continuing.

Particulars of Loss of Earning Capacity

But for her medical condition the applicant had the capacity to conduct a profitable business of a kind similar to that which she conducted at the Gladstone Park Shopping Centre and she is unable to say when her medical condition will permit her to conduct such a business in the future, if ever. Alternatively the applicant would have been employed as a shop assistant but she is unable to say when her medical condition will permit her to again commence such employment, if ever."

Whether in s. 4K of the Trade Practices Act 1974 the word "injury" be understood in the sense of injuria or as denoting physical or psychological harm to the person, I consider that I should assume, for the purposes of this motion, that s. 52(1) confers a right to recover the amount of the loss or damage suffered in respect of such physical or psychological harm by conduct of the kind alleged. No submission to the contrary was advanced. The submission of Mr Glick of counsel for the respondents in opposition to the application for leave to amend par. 16 of the statement of claim was that the amendment introduced into the pleading a cause of action distinct from that which the pleading disclosed before amendment and that, because an action upon that new cause of action commenced now, more than three years after the date on which the cause of action accrued, might be barred by the respondents relying on s. 82(2) of the Trade Practices Act 1974, the rule in Weldon v. Neal (1887) 19 QBD 394 required that the application be refused.

Mr W. J. Martin of counsel for the applicant denied that the proposed amendment would introduce a new cause of action. He also advanced the alternative submission that in the exercise of the power conferred by O. 13 of this Court's Rules the rule in Weldon v. Neal (supra) is to be allowed no determinative influence and that the considerations upon which the rule is based are no more than some of the considerations to be weighed in the exercise of a discretion unfettered by rules. In support of the latter submission Mr Martin drew attention to what he argued were similarities between provisions contained in O. 13 and provisions of the Supreme Court Rules 1970 of the Supreme Court of New South Wales which were considered by the Court of Appeal of that State in McGee v. Yeomans (1977) 1 NSWLR 273.

The dissimilarities of the two sets of provisions seemed to me much more relevant to an evaluation of the submission than the similarities, but I need not express, and refrain from expressing, any conclusion about the submission, because I accept Mr Martin's first submission, that the proposed amendment introduces no new cause of action.

Personal injury by negligence raises a cause of action distinct from property damage by the same negligent act causing the same physical events: Brunsden v. Humphrey (1884) 14 QBD 141. But in my opinion every kind of "loss or damage", including "injury", which the law shall recognise as compensable in damages and which has been suffered by conduct of a description comprehended by s. 82(1) is within the single cause of action which, as I think, that subsection, read with s. 4K, creates in relation to each act of that description. It is not difficult to suppose that the draftsman of the Act expected that the words "loss" and "damage" in s. 82(1) and the word "injury" in s. 4K would be interpreted as importing common law conceptions the expression of which involves the use of those words. But neither the use of those words nor anything else in the language of s. 82 suggests an intention to split the causes of action created by reference to analogous common law causes of action which are differentiated upon the nature of the damage suffered.

The proposed amendment of par. 16 introducing no new cause of action, the rule in Weldon v. Neal constitutes no bar to the amendment: Cutrona v. Harnischfeger of Australia Pty Ltd (1977) VR 306. (Cf. the article by S. Campbell in 54 ALJ 643). Upon the assumption - which only the imperative language of O. 13 r. 2(2) might be thought to call in question - that a discretionary power is conferred on the court to grant or refuse leave to make the amendment as the justice of the case requires, I think that leave should be granted. The delay in formulating the allegations contained in the amendment was not said to have prejudiced the respondents' prospects of contesting successfully any of the allegations on the facts.

The other amendment for which leave is sought is the introduction into the statement of claim of this paragraph:

"15A. Further and alternatively, the false and misleading statements referred to in par. 12 hereof and the conduct that was misleading and deceptive and likely to mislead and deceive referred to in par. 13 hereof were intentional and positive acts of the respondents forbidden by law as an inevitable result of which the applicant was injured and has suffered the loss and damage referred to in par. 16 hereof."

This paragraph was said by Mr Martin to raise a cause of action declared by the High Court in Beaudesert Shire Council v. Smith (1966) 120 CLR 145 at 156 to lie at common law:

"the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other."

Mr Glick's submission was that in the circumstances which the statement of claim alleges all the elements of that cause of action are elements of the cause of action created by s. 82(1) of the Trade Practices Act 1974 and all the elements of that statutory cause of action are elements of the cause of action declared by the High Court, and that therefore s. 82(2) of that Act affords the respondents a good defence to the cause of action sought to be alleged in the terms of par. 15A. If Mr Glick's premise were granted, his conclusion could not be accepted, for the reasons already given in relation to the other proposed amendment. Mr Glick also submitted that the proposed par. 15A had a tendency to cause prejudice and embarrassment in this proceeding in that it did not unambiguously identify each act of each respondent which was alleged to have constituted an element of each cause of action intended to be raised, nor unambiguously specify the intention with which each act was done. I accept that submission. The cause of action is not one found in common practice and its precise definition may be thought to be open to argument: see Fleming, The Law of Torts, (6th ed.), at 661-662; Kitano v. Commonwealth

(1974) 129 CLR 151; Dunlop v. Woollahra Municipal Council (1981) 1 NSWLR 76; Elston v. Dore (1982) 57 ALJR

83. Precision in pleading the cause of action is therefore essential, in my opinion. Paragraph 15A, if added to the statement of claim, would in my opinion cause prejudice and embarrassment, and for that reason leave to add it should not be granted. One of the many questions which amendment of the statement of claim in the terms proposed would leave unanswered is the basis of a claim for damages upon this common law cause of action against the respondent George Herscu, against whom the only allegations outside the proposed par. 15A are as follows:

"2. The third-named respondent is and was at all material times a director of the first and second-named respondents.

. . .

8. The third-named respondent at all material times knew of and approved of the contents of the advertisements referred to in par. 5 hereof and of the contents of the pamphlet and thereby aided, abetted, counselled and procured and was directly and indirectly and knowingly concerned in and a party to such contents."

The conduct alleged to have been done in contravention of s. 52(1) or of s. 53A(1) included procuring the publication of the advertisements referred to in par. 5 of the statement of claim and giving to the applicant the pamphlet referred to in par. 8 thereof.

Mr Glick advanced other submissions against the grant of leave to add par. 15A, but I think I should not pass upon them now. Leave to amend in the terms of par. 15A will be refused without prejudice to any further application for leave to amend the statement of claim by adding a claim or claims for damages against any respondent upon a cause of action at common law.

It is ordered that par. 16 of the statement of claim filed 13 December 1980 be amended by inserting after the word "applicant" therein the words "was injured and" and that the particulars under the said par. 16 be amended by inserting after the heading "Particulars" therein and before the sub-heading, "A. List of Expenses" therein the words following, that is to say:

"Particulars of Injuries

Moderate to severe anxiety with depression, with nervous ticks marked by tremor and also grimacing of the mouth.

Particulars of Economic Loss

But for her medical condition the applicant who was born on 12 July 1932 would have been able to conduct a business of a similar kind to that which she conducted at the Gladstone Park Shopping Centre and earn a net annual (sic) income of $300 from 17 January 1980 to the present.

Alternatively, the applicant would have been employed as a shop assistant earning (at present rates) the sum of approximately $160 net per week. In fact, apart from casual work with relatives varying from one to five days per week for which the applicant is not paid otherwise than by receipt of food for her personal use, the applicant has been unable to obtain employment and has accordingly suffered since 17 January 1980 to 14 July 1983, a period of 182 weeks at the rate of $160 per week, a loss of $29,120 which loss is continuing.

Particulars of Loss of Earning Capacity

But for her medical condition the applicant had the capacity to conduct a profitable business of a kind similar to that which she conducted at the Gladstone Park Shopping Centre and she is unable to say when her medical condition will permit her to conduct such a business in the future if ever. Alternatively the applicant would have been employed as a shop assistant but she is unable to say when her medical condition will permit her to again commence such employment if ever."

It is further ordered that save as aforesaid the motion (of which notice was filed 4 July 1983) on the part of the applicant that the applicant have leave to amend the statement of claim be dismissed but that this order be without prejudice to any further or other application on the part of the applicant that she have leave to amend the statement of claim by adding a claim or claims for damages against any respondent upon a cause of action at common law.

I will hear the parties on the question of costs.

ORDER

Orders accordingly.