Cp (Adelaide) & Ors v Hartford (Holdings) & Anor (No 11) No. DCCIV-01-617

Case •

[2003] SADC 8

•

31 January 2003

CP (ADELAIDE) & ORS v HARTFORD (HOLDINGS) & ANOR
[2003] SADC 8

Judge Lunn
Civil

REASONS ON PLAINTIFFS’ APPLICATION TO VARY THE JUDGMENTS

  1. On 28 June 2002 after a long trial I entered judgment for each of the five plaintiffs for varying sums against the 1st defendant.  On application by the 1st defendant under R84.12 on 9 August 2002 I reduced the judgment previously entered for the 1st plaintiff against the 1st defendant.  The 1st plaintiff then had judgment for $228,870, the 2nd plaintiff $4,360, the 3rd plaintiff $5,450, the 4th plaintiff $6,540 and the 5th plaintiff $3,270. These judgment sums included interest on the judgment amounts for pre-judgment interest under s39 of the District Court Act up until the date of judgment on 28 June 2002. As set out in my reasons No 7 ([2002] SADC 81) the damages awarded to each of the five plaintiffs against the 1st defendant had been reduced by 50% because of other contributing causes for the plaintiffs’ losses under the Commonwealth Trade Practices Act.  In making those reductions of 50% I followed the law as it was then stated to be by the Court of Appeal in Queensland in I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd, ((2000) 179 ALR 89) where it was held that even though there was a sufficient causal connection between the plaintiffs’ losses and the misleading conduct the damages could be reduced where other conduct of the plaintiffs, independent of the 1st defendant’s conduct, was also a cause of the loss suffered by the plaintiffs.

  2. The High Court of Australia had reserved its decision on 22 November 2001 in an appeal against the decision of the Court of Appeal of Queensland. During the trial before me it was unknown when the High Court would deliver its decision and whether it would definitively change the view of the law which I was to apply in reducing the plaintiffs’ damages by 50%. I explored with counsel the possibility that I should delay my judgment until the High Court had adjudicated on the appeal. I decided not to await the High Court’s decision before entering my judgment. My reasons for this were summarised in footnote 123 of my reasons No 7 ([2002] SADC 81) which read:

    “The plaintiffs are most anxious to have judgment in this action as soon as possible.  No one asked me to delay my decision until after the High Court had delivered its decision on that appeal.  If the High Court allows the appeal to it in I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd, that can be a ground of appeal against my judgment or possibly a basis for an application under Rule 84.12.”

  3. The High Court delivered its decision on 2 October 2002, (192 ALR 1), in which it reversed the decision of the Court of Appeal of Queensland and held that there was no power in circumstances akin to this matter for the plaintiffs’ damages under the relevant sections of the Trade Practices Act to be reduced by reason of other contributing causes of their losses. Thus, if this decision of the High Court had been available to me before I entered judgment, I would not have reduced the plaintiffs’ judgments as I did and I would have entered judgments for them for the full amounts of their proved losses. The 1st defendant has not argued that the decision of the High Court would not have had this effect.

  4. By an application dated 21 October 2002 the plaintiffs applied under Rule 84.12 to vary the judgments for them against the 1st defendant by deleting the deductions for 50% for other contributing causes and adjusting the amounts for pre-judgment interest to accord with the increased judgment sums. It also sought a variation of the costs order for the action which I had made on 3 September 2002 in accordance with my reasons No 10, ([2002] SADC 102). The application also sought a charge under s8(1) of the Enforcement of Judgments Act against land of the 1st defendant for the increased amount of any judgment sums.

  5. Both my judgments of 28 June 2002 and my costs orders of 3 September 2002 are subject to appeals and cross appeals by the 1st defendant and the plaintiffs.  These appeals have not yet been set down for hearing.  The 2nd defendant took part in the hearing of the application until the plaintiffs made a formal concession that they did not seek to vary any costs orders made in favour of the 2nd defendant.

  6. By my reasons No 9 ([2002] SADC 107), on 15 August 2002 I ordered that a charge be placed on the title of land owned by the 1st defendant for the judgments in favour of the plaintiffs.  The 1st defendant appealed to the Supreme Court against that order, but the appeal was not finalised as some agreement was reached between the parties for alternative security to be given by the 1st defendant to the plaintiffs to secure their judgment.

  7. The 1st defendant opposed the application to vary the judgments.  Its counsel conceded I had the power under Rule 84.12 to vary the judgments as sought, but said as a matter of discretion I should not exercise it.  He argued that the plaintiffs had elected at the trial for me to give judgment without waiting for the decision of the High Court and they were now precluded by some form of “forensic estoppel” from having the judgments varied in accordance with the decision of the High Court.  I do not accept this.  At trial the 1st defendant did not ask me to delay my judgment until the decision of the High Court.  In taking a course which was acquiesced in by all parties I expressly left it open for the plaintiffs to apply under Rule 84.12 if the High Court decision was in their favour.

  8. Under Rule 84.12 I am to do what the justice of the case requires.  The issue is clear cut.  There is no doubt on the version of the law now laid down by the High Court in the I&L Securities Pty Ltd case that the plaintiffs are entitled in the circumstances of this matter to the whole of their damages without deduction for any other contributing causes of their losses.  While this point could be left to be dealt with by the Full Court on the plaintiffs’ cross appeal against my judgment there is a significant potential for the plaintiffs to suffer prejudice if the point is left until the determination of the appeal as at the moment under my order of 15 August 2002 they have in effect security for only half of what they are entitled to in law.  If the history of this litigation to date is any indicator, there could well be a substantial delay before the appeal is determined.  If the financial affairs of the 1st defendant were to deteriorate in that time, the plaintiffs may be prejudiced in the recovery of the full amount of the judgments, to which they would otherwise be entitled, if their cross appeals succeed.  (There is no evidence to suggest they are likely to deteriorate.)  Accordingly, the justice of the case requires that I should vary the judgments so that the plaintiffs can have a charge or other security for the full amount of their entitlements under my judgment and the decision of the High Court.

  9. The variation of the judgments will also include a variation of the amount for pre-judgment interest.  As the judgments as varied operates from 28 June 2002 the pre-judgment interest will only be varied to that date.  (The amounts allowed for it will be doubled.)

  10. My increasing of the judgment sums does not necessitate any variation of my costs order of 3 September 2002.  That order did not give the 1st defendant its costs of the issues of the other contributing causes for the plaintiffs’ losses on which it had succeeded before me at trial.  That order was based upon the plaintiffs obtaining the costs of the action as a whole against the 1st defendant subject to various reductions for discrete issues which are not relevant here and for the way in which the plaintiffs conducted the trial.  If the High Court decision had been delivered before 28 June 2002, my costs order of 3 September 2002 would have been no different.

  11. The 4th plaintiff also sought by the application to revisit that part of my order of 3 September 2002 by which he was only to receive costs on the basis of a litigant in person who was not a legal practitioner for his attendances at the trial and at interlocutory hearings and for his work which would otherwise have attracted counsel fees.  He sought to rely on the recent decision of the English Court of Appeal in Malkinson v Trim delivered on 13 September 2002.  That decision does not directly address the point in issue.  It is not appropriate under Rule 84.12 to reopen my order on this topic by reason of that decision, which, in any event, is not binding upon me.  It is a point best left to the Full Court.

  12. The application seeks orders for a charge against the 1st defendant under s8(1) of the Enforcement of Judgments Act for the plaintiffs’ judgments as increased. I will adjourn further consideration of that part of the application. If the agreement between the parties under which the appeal is against my previous order under s8(1) was varied cannot be further varied by agreement between the parties to cover the increased amounts of the judgments, then the plaintiffs can bring the application on for further hearing on the point.

  13. My orders on the application of 21 October 2002 are as follows:

    1.That the judgment pronounced on 28 June 2002 for the 1st plaintiff against the 1st defendant, as subsequently varied on 15 August 2002, be further varied by substituting in the declaratory judgment for the 1st plaintiff against Hartford, an interim assessment for $457,740 in lieu of $228,870.

    2.That the judgment pronounced on 28 June 2002 for the 2nd plaintiff against the 1st defendant in the sum of $4,360 be increased under Rule 84.12 to $8,720.

    3.That the judgment pronounced on 28 June 2002 for the 3rd plaintiff against the 1st defendant in the sum of $5,450 be increased under Rule 84.12 to $10,900.

    4.That the judgment pronounced on 28 June 2002 for the 4th plaintiff against the 1st defendant in the sum of $6,540 be increased under Rule 84.12 to $13,080.

    5.That the judgment pronounced on 28 June 2002 for the 5th plaintiff against the 1st defendant in the sum of $3,270 be increased under Rule 84.12 to $6,540.

    6.The plaintiffs’ application to vary the costs orders made on 3 September 2002 is dismissed.

    7.Further consideration of paragraphs 8 and 9 of the application is adjourned to a date to be fixed.

  14. I will hear the parties concerning the costs of this application.

Most Recent Citation