Geagea v The New South Wales Ministerial Corporation

[2004] NSWSC 232

CITATION:	Geagea v The New South Wales Ministerial Corporation [2004] NSWSC 232
HEARING DATE(S):	18 March 2004
JUDGMENT DATE:	30 March 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The plaintiff's Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. I order that paragraphs 11-14 of the statement pursuant to Pt 33 r 8A filed on 21 August 2003 be struck out. The plaintiff is to pay the costs of the application. The Exhibits may be returned.
CATCHWORDS:	Leave to amend - aggravated damages and negligence - exemplary damages - substantive punishment - adequacy of particulars - striking out of matter in a document - irrelevant material in Part 33 rule 8A statement and matters that should be specifically pleaded.
LEGISLATION CITED:	Motor Vehicles (Third Party Insurance) Act 1942, s 35B, s 35C. Supreme Court Rules 1970, Pt 16 rules 5A and 5B, Pt 33 r 8A, r 8A (2), r 8A (2) (d) (vi), Pt 65 r 5.
CASES CITED:	Gray v Motor Accident Commission [1998] HCA 70. Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268. Lamb v Cotogno (1987) 164 CLR 1.
PARTIES :	John Geagea (Plaintiff) v The New South Wales Ministerial Corporation (formerly the Government Insurance Office of New South Wales) (Defendant)
FILE NUMBER(S):	SC 15305 of 1985
COUNSEL:	N/A (Plaintiff) Maurice Neil QC/Mr I McGillicudy (Defendant)
SOLICITORS:	T D Kelly & Co (Plaintiff) J M Crestani (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Tuesday 30 March 2004

15305 of 1985 John Geagea v The New South Wales Ministerial Corporation (formerly the Government Insurance Office of New South Wales)

JUDGMENT

1 MASTER: There are two Notices of Motion listed before the court for hearing. There is a Notice of Motion filed by the plaintiff on 27 October 2003. It seeks leave to amend the Statement of Claim as set forth in the annexure thereto. There is a Notice of Motion filed by the defendant on 21 October 2003. It seeks an order directing the plaintiff to file and serve an Amended Statement of Particulars which delete references to and claims for:-

“ 11. STRUCTURED SETTLEMENT – FUTURE OUTGOINGS.
12. STRUCTURED SETTLEMENT – FUTURE WAGE LOSS.
13. COST OF INSURANCE BOND OR ANNUITY.
14. AGGRAVATED AND/OR EXEMPLARY DAMAGES. ”

2 The proceedings were commenced in 1985. The plaintiff claims damages in respect of personal injury suffered in a motor vehicle accident on 3 May 1985. An admission of liability was made on 30 October 1986.

3 The defendant is the insurer of Nicholas Cosmidis (Cosmidis). He was the owner and driver of motor vehicle registered number GYT 304 (the vehicle).

4 At the time of the accident, the plaintiff was a minor (aged one year and eleven months). He turned 18 on 28 May 2001. He suffered serious injuries and was rendered paraplegic in the accident. He requires a wheelchair for ambulation.

5 The plaintiff was travelling in a vehicle driven by his father on Elizabeth Drive Mount Pritchard when it was struck by the vehicle. The vehicle was travelling on the incorrect side of the roadway and a head on collision took place.

6 Cosmidis had partaken of intoxicating liquor (he had a breath analysis reading of .190). He was travelling at excessive speed. His intoxication impaired his control of the vehicle and brought about the accident. It was considered likely that he had overestimated his capacity to drive and had underestimated the amount which he had to drink. It was considered that he would not have driven had he believed that his driving ability was affected. He did not leave the scene of the accident. He co-operated with the police (see District Court file – Exhibit 1). It was accepted that he was genuinely contrite.

7 Charges were laid. He pleaded guilty to four counts of culpable driving (other members of the plaintiff’s family suffered injury). The Crown did not proceed with a PCA charge. The trial judge said that but for certain personal factors “he would be gaoled at least by way of periodic detention”.

8 The trial judge concluded as follows:-

“What I’m going to do is disqualify him from driving for a period of five years all told and otherwise defer passing sentence for a period of three years, conditional upon his being of good behaviour.
IN RESPECT THEREFORE OF ALL MATTERS THE PRISONER IS CONVICTED.
I DEFER PASSING SENTENCE CONDITIONAL UPON HIS ENTERING INTO A RECOGNIZANCE HIMSELF IN THE SUM OF A THOUSAND DOLLARS TO BE OF GOOD BEHAVIOUR FOR A PERIOD OF THREE YEARS AND TO APPEAR FOR SENTENCE AT ANY TIME IF CALLED UPON DURING THAT PERIOD.
IN RESPECT OF THE CHARGE INVOLVING JOHN GEAGEA THE PRISONER IS DISQUALIFIED FOR HOLDING A LICENCE FOR THREE YEARS FROM TODAY.
IN RESPECT OF THE CHARGE INVOLVING ANNE MARIA GEAGEA THE PPRISONER IS FURTHER DISQUALIFIED FOR HOLDING A LICENCE FOR A PERIOD OF TWO YEARS, THAT PERIOD TO COMMENCE UPON THE EXPIRY OF THE FIRST PERIOD OF DISQUALIFICATION IMPOSED.”

9 The plaintiff wishes to amend the Statement of Claim so as to include claims for aggravated and exemplary damages. The rules have been taken to require that such claims be specifically pleaded. The rules also require that particulars of the facts and matters relied on to establish the claim be given.

10 The annexure sets out the particulars of the proposed claims as follows:-

“ Particulars of the facts and matters relied upon in the Plaintiff’s claims for aggravated and exemplary damages:
(a) The Defendant’s insured Nicholas Cosmidis drove his vehicle onto the incorrect side of the roadway and into head on collision with the motor vehicle in which the Plaintiff was travelling with his family. At the time the said Cosmidis had a blood alcohol reading of .190. A copy of the Police report is attached and marked ‘A’.
(b) Such action by the said Cosmidis was highhanded and in contumelious disregard of the rights of the Plaintiff and his family.
(c) The Plaintiff was thus at aged 1 year 11 months rendered paraplegic and condemned to life in a wheelchair. In the same accident both his parents sustained multiple injuries and were hospitalised.
(d) The said Cosmidis on 8 May 1987 in the Penrith District Court pleaded guilty to four counts of culpable driving and the Crown dropped a PCA charge that had been brought against him.
(e) Neither the Plaintiff nor his family are aware of any reason for the Crown to have dropped the PCA charge.
(f) The said Cosmidis was placed by the Court on a three year good behaviour bond in the amount of $1,000.00 and his driving licence was suspended for a total period of five years.
(g) The Plaintiff’s solicitor on 25 May 1987 wrote to the then Attorney General Sheahan in relation to this sentence. A copy of that letter is attached hereto and marked ‘B’.
(h) The said then Attorney General Sheahan responded to that letter by correspondence to the Plaintiff’s then Parliamentary Representative Mr P Rogan MP by letter dated 16 September 1987. A copy of that letter is attached hereto and marked ‘C’.
(i) The foregoing matters, when added to the Plaintiff’s grave and permanent injury inflicted upon him in his infancy, have caused distress, upset and anger additional to the injury itself. ”

11 The application is opposed by the defendant on a number of grounds. Principally, it says that this is not a case which is capable of giving rise to claims for aggravated and exemplary damages. Also, it challenges the sufficiency of the proposed particulars. Further, it says that there is unexplained delay for a period of about 18 years which gives rise to both presumptive and actual prejudice.

12 The defendant has referred the court to a number of decided cases (including Gray v Motor Accident Commission [1998] HCA 70 and Lamb v Cotogno (1987) 164 CLR 1 and Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268).

13 A distinction is drawn between aggravated and exemplary damages. Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done. Exemplary damages are intended to punish the defendant, and presumably to serve one or more of the objects of punishment (moral retribution or deterrence). See Gray at p2.

14 There is authority that supports the view that aggravated damages may not be awarded in negligence cases. This seems to be the position in England. Mason P in Hunter (at pp 284 – 288) found no clear guidance in Australian case law. He observed that he seriously doubted the need to grant an award of aggravated damaged upon a negligence claim. He further observed that compensatory damages would normally include damages for mental distress or injured feelings so long as they can be linked to the tort. The authorities suggest that the position in Australia is not yet finally settled.

15 Leaving aside the question of legal entitlement, on the material before the court in this application at the very best it would seem that there is but limited scope for aggravated damages in this case.

16 The question of exemplary damages was addressed in Gray. It was a motor vehicle case. The plaintiff had suffered injury when a motor vehicle had been driven at him deliberately.

17 At p7 of the joint judgment of Gleeson CJ, McHugh, Gummow, and Hayne JJ, it was said:-

“ [40] Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say ‘may not’ because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.”

18 At p9 of the said judgment, it was further said:-

“ [53] Putting the question in these terms emphasises the importance of addressing the underlying question of principle. How are the civil courts to set about a task of punishing a defendant when the criminal courts have already done so? In particular, how is the civil court to assess the adequacy of the punishment inflicted as the result of a criminal prosecution? If the criminal process has taken its course, why should it be open to a plaintiff in a civil proceeding to contend that the punishment inflicted is inadequate? Is it enough (as the Ontario Law Reform Commission suggest) that the victim of a crime may bring forward at a civil trial matters that go to punishment but are not brought forward at a criminal trial? How does that proposition fit with provisions made for sentencing courts to consider victim impact statements?
[54] No doubt, if the punishment inflicted by a criminal court is properly regarded as substantial (and a term of imprisonment would seem always to be so) no question of inadequacy should arise. But what if a financial or other non-custodial penalty is exacted? How is the adequacy of that penalty to be judged?
[55] Again, none of these questions arises here. On any view, substantial punishment has been inflicted on the wrongdoer in this matter. But to express the rule to be applied by a civil court in deciding whether exemplary damages may be awarded, simply as a discretion to be exercised according to whether, having regard to the nature of the defendant’s conduct and the need to punish it and deter others from repeating it, exemplary damages should be awarded, may very well obscure deep-seated and difficult questions of principle.
[56] Here, however, because substantial punishment was imposed on Bransden for the conduct that was the subject of this action exemplary damages could not be awarded.”

19 Accordingly, as the law presently stands, exemplary damages may not be awarded where substantial punishment has been inflicted for what is substantially the same conduct as the conduct which is the subject of the civil proceedings.

20 In this case, the same conduct is involved in both proceedings. The question at issue is whether or not substantial punishment has been inflicted upon Cosmidis.

21 The authorities do not appear to lay down any test for determining whether or not that has taken place. As I understand the authorities, the punishment inflicted by the criminal court can be regarded as substantial whether or not a term of imprisonment has been imposed. The court, in which the claim for exemplary damages is being advanced, has to make a finding as to whether or not substantial punishment has been inflicted. Further, it seems to me, that the performance of the exercise does not involve the court in considering questions of the adequacy of what was done in the criminal court. That is not the issue thrown up by the authorities.

22 On the material placed before the court in this application the view may be open that substantial punishment has been inflicted. Be that as it may, I would be hesitant to express a final view. It seems to me that this is better done at either trial or on the hearing of a separate question when all of the relevant material is before the court.

23 Leaving aside the considerations that I have mentioned, it seems to me that for other reasons the proposed amendment should not be allowed.

24 In my view, there are serious deficiencies in the particulars that have been provided.

25 Composite particulars are provided for both claims. The need for particulars for each claim may be found in Pt 16 rules 5A and 5B of the Supreme Court Rules 1970 (the Rules). In my view separate particulars should be provided. A defendant is entitled to know the identity of the particulars relied on in respect of each of the claims.

26 Apart from this deficiency, it seems to me that what has been provided falls well short of being adequate.

27 A significant part of the material that has been provided is on any view irrelevant.

28 The function of exemplary damages is to punish the defendant for what it has done (not that which has been done by others such as the Crown dropping the PCA charge and the failure to provide reasons for so doing and the action or inaction of the Attorney General in relation to representations made to him on behalf of the plaintiff in and about the bringing of an appeal).

29 For these reasons alone, I would refuse the application. Accordingly, it is unnecessary to deal with the arguments concerning other discretionary considerations.

30 The application to amend is brought about 18 years after the commencement of the proceedings. This is a very lengthy delay which is left unexplained. There will be presumptive prejudice. In the light of the inadequacy of the particulars, it is not really possible to make an assessment of actual prejudice.

31 For completeness, I observe it appears that Cosmidis remains available. Also, it appears that the member of the force who investigated the accident is available.

32 The plaintiff bears the onus of satisfying the court that the discretionary power to allow the proposed amendment should be exercised in his favour. I am not satisfied that such onus has been discharged.

33 The plaintiff’s Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion.

34 I now turn to the defendant’s Notice of Motion. It relies on the provisions of Pt 65 r 5 of the Rules. The rule is in the following terms:-

“ [65.5] Scandal, etc
5 The Court may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.”

It seeks to have struck out part of the material contained in the plaintiff’s statement pursuant to Pt 33 r 8A filed on 21 August 2003 on the basis that such material is either irrelevant or otherwise oppressive.

35 The function of a statement complying with Pt 33 r 8A is to provide the prescribed particulars so that the other parties will be aware of what they will be expected to meet at trial. The serving of the statement is a condition precedent to the filing of a Notice to Set Down for Trial. The rule operates in the context of what is alleged in the Statement of Claim. It is contemplated that the particulars so furnished will be particulars of what is alleged in the Statement of Claim. It is not intended that it be used as a vehicle to avoid making necessary amendments to the Statement of Claim.

36 The particulars to be included in the statement are specified in sub-rule (2). For present purposes only what is prescribed by (2) (d) (vi) could be of relevance (particulars of any claim in respect of services of a domestic nature or services relating to nursing or attendance).

37 The part of the statement which the defendant seeks to have struck out may be found in pages 16 – 20 of the document (the paragraphs). Paragraph 11 calls upon the plaintiff to enter into a deed to effect a structured settlement for future outgoings. Paragraph 12 makes a similar call upon the defendant in respect of future wage loss. Paragraph 13 informs that in the event that the defendant is not prepared to enter into a structured settlement as contemplated by paragraphs 11 and 12 then the plaintiff claims the cost of an insurance bond or annuity written by a reputable and suitable Australian company to provide either the benefits sought from the defendant in paragraphs 11 and 12 or specified alternatives. Paragraph 14 informs that the plaintiff also claims aggravated and/or exemplary damages and furnishes the particulars which are set forth in the proposed Amended Statement of Claim.

38 Paragraphs 11 and 12 are presented as alternatives to what is claimed in paragraph 7 (Future Needs) and paragraph 8 (Loss of Income).

39 During the course of the hearing, I deferred ruling on three questions of admissibility. The defendant objected to the tender of Annexures “C” to “F” to an affidavit sworn by Mr Watson on 28 October 2003. The defendant also objected to Annexure “A” to a further affidavit of Mr Watson sworn on 17 March 2004. Annexure “A” was a copy of a report from Miss Campbell. The plaintiff objected to the tender of the correspondence comprised in MFI “1”. In my view, each of the tendered documents should be rejected (inter alia on the ground of relevance).

40 The defendant has advised the plaintiff that it does not propose to enter into any structured settlement arrangements. It is common ground, that the court can only make orders in respect of a structured settlement with the agreement of the parties. Accordingly, for that reason alone, what appears in paragraphs 11 and 12 has no further utility.

41 What appears in paragraph 13 informs the defendant of a head of damages that it is proposed to claim at trial. There is issue between the parties as to whether or not it is open for the court to award such a head of damages.

42 The Statement of Claim advances a claim for damages pursuant to the Motor Vehicles (Third Party Insurance) Act 1942 (the Act). It is common ground that the Act has application to the assessment of damages in this case.

43 The defendant says that the court’s power to award damages is governed by s 35B. It is in the following terms:-

“ 35B Discount rate applicable to certain awards of damages
(1) Where an award of damages to which this Part applies is to include compensation, assessed as a lump sum, in respect of damage for future loss which is referable to:

(a) deprivation or impairment of earning capacity,

(b) loss of the expectation of financial support, or

(c) a liability to incur expenditure in the future,
the present value of the future loss shall be qualified by adopting:

(d) a discount rate of the prescribed percentage, or

(e) where no percentage is prescribed as referred to in paragraph (d), a discount rate of 5 per cent,

in order to make appropriate allowance for inflation, for future changes in rates of wages generally or of prices, and for tax (either actual or notional) upon income from investment of the sum awarded.

(2) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages.”

44 The plaintiff contends that s 35B has no application to this head of damage as the plaintiff is not relevantly seeking compensation assessed as a lump sum. This contention was merely stated. It was not supported by developed argument.

45 As a result, this issue was not fully argued. This application can be determined without deciding the issue. I must say that I doubt that it is appropriate to deal with such an issue in the context of the present application.

46 It may be that, it is an issue which either should be dealt with at trial or at an earlier stage as a separate question.

47 For completeness, although it was not debated, it might be added that the provisions of s 35C may be thought to stand in the path of the plaintiff’s claim.

48 During the course of argument, I invited the parties to address the question of whether or not what is contained in the paragraphs was the proper subject for inclusion in a statement pursuant to Pt 33 r 8A. Unfortunately, the parties did not address that question. On any view, the requirements of the rule can have but limited application to the paragraphs.

49 The head of damage claimed in paragraph 13 is not yet pleaded in the Statement of Claim. On one view, it may be seen as being in conflict with the content of the present pleadings. That is a matter that may have to be addressed in the future.

50 It seems to me that what is claimed is matter that should be specifically pleaded.

51 What is claimed in paragraph 14 is not material contemplated by the Rules. It is not presently pleaded in the Statement of Claim. The present application to amend such claim has been refused.

52 It was the court that brought the attention of the parties to the provisions of Pt 65 r 5. It is a little used provision. It is cast in wide terms and may be applied in respect of any document (including the statement pursuant to Pt 33 r 8A). On any view, what is set forth in paragraphs 11 – 14 of that document is on the present pleadings irrelevant.

53 During the course of argument, I also asked the parties to the address the question of the utility to the parties of striking out these paragraphs. It was a question on which I received little assistance.

54 Statements served pursuant to Pt 33 r 8A should comply with its requirements. They should not be used for other than their intended purpose (such as advancing claims that are not pleaded in the Statement of Claim). In this case, a substantial body of material is involved. The striking out of the relevant part of the statement has utility in that it confines the document to relevant material. Of course, it will not determine any question of law binding the parties as to what claims can be advanced in the proceedings.

55 The court has a discretionary power to make the order. I am satisfied that an order should be made. It best serves the interest of justice. Accordingly, I order that paragraphs 11-14 of the statement pursuant to Pt 33 r 8A filed on 21 August 2003 be struck out. The plaintiff is to pay the costs of the application. The Exhibits may be returned.

**********

Last Modified: 04/05/2004