Hartley Poynton Ltd v Ali

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 2039 of 1999

HARTLEY POYNTON LTD.
	Appellant
v.
LIYAKAT ALI (as Executor and Trustee of the Estate of RAHMAT ALI)	Respondent

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JUDGES:	ORMISTON, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 & 21 April 2004
DATE OF JUDGMENT:	18 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 53

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PRACTICE AND PROCEDURE – Judgments and Orders – Power to give judgment nunc pro tunc and generally to antedate orders – Effect of death on cause of action and on conduct of proceedings – Addition of rules as to abatement – Claim in negligent misstatement, breach of contract etc. – Damages to be awarded included $260,000 punitive damages – Plaintiff died between end of argument and delivery of judgment (in April 2002) – Effect of sub-s.2(a) of s.29 of Administration of Probate Act 1958 – Judgment given “to bear date and take effect from 16 October 2001” (being last day of argument) – Whether proper to do so – Effect of principle said to be laid down in Turner v. London and South-Western Railway Co. (1874) L.R. 17 Eq. 561 – Whether should be applied to alter substantive rights.

DAMAGES – By way of interest – Award of damages including damages for loss of opportunities – Order for repayment of sum invested – Interest payable on repayable sums – Whether proper to order interest also on damages for loss of opportunities – How interest should be calculated for periods up to date of judgment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.D. Wyles	Phillips Fox
For the Respondent	Mr J.M. Selimi	Buxton & Assoc.

ORMISTON, J.A.:

This appeal by the defendant from a judgment of Smith, J.[1], whereby his Honour ruled in favour of the executor of the deceased plaintiff Rahmat Ali with respect to the antedating of and the interest payable on a judgment for damages (including exemplary damages) awarded by his Honour in an action for negligent misrepresentation and related claims arising out of the deceased plaintiff’s share trading through the appellant, raises two issues. The second of the issues relating to the calculation of interest is primarily concerned with an analysis of his Honour’s award of damages. The first issue, however, though on the surface technical, raises questions of some importance both as to the effect of death on parties’ rights and, more importantly, as to the power of the Court to antedate its judgments. These questions arise in the context of a proceeding where the plaintiff died between the reservation of judgment and its delivery and where, as for the last 60 years, the restrictions on the right of the personal representatives to sue and continue proceedings in the name of deceased persons have been modified by what is now s.29 of the Administration and Probate Act 1958 which, while removing the bar on such proceedings, qualifies (inter alia) the resultant rights of estates of deceased persons by providing that the damages recoverable “shall not include any exemplary damages”.
[1][2002] VSC 245.

For present purposes it is unnecessary to canvas the factual circumstances in great detail. It seems that Mr Rahmat Ali was a client of the appellant stockbroking firm for some time. In circumstances described in detail by Smith, J. in his principal judgment[2], the plaintiff invested a little over $100,000 with the appellant towards the end of 1997 for trading in securities listed on the Australian Stock Exchange and a further $195,000 a few weeks later to buy certain Telstra instalment receipts. Over the next 15 months it appears that these moneys were “invested” in various ways and the funds were used to buy and sell securities in a vigorously speculative manner. Regrettably the speculation was an overwhelming failure and by February 1999 the whole of the funds invested by the plaintiff had been dissipated in one way or another. Shortly thereafter in April 1999 Rahmat Ali commenced proceedings against the defendant appellant. The plaintiff alleged, among other matters, a number of negligent misrepresentations, false and misleading conduct, breach of contract constituted by negligent trading on his behalf and breach of fiduciary duty. At the end of the day most of the principal claims were made out, but a very significant proportion of his Honour’s judgment was given over to the calculation of damages, which in the circumstances involved a very complex examination of the facts. In a judgment delivered on 16 April 2002 the judge gave judgment for the plaintiff for $846,819 compensatory damages and $260,000 exemplary damages, against which was set-off some $67,017 by way of an undisputed counterclaim for broking fees. Interest and other matters were reserved for further consideration.
[2]See [2002] VSC 113; [2002] Aust. Torts Rep. 81-665, sub. nom. Liyakat Ali v. Hartley Poynton Ltd.

It was an exceptionally complicated case, but between the time that the judge reserved his decision on 16 October 2001 to the time he delivered his 303 page judgment just six months later the plaintiff Mr Rahmat Ali died. This immediately raised a procedural issue of some complexity as to what should be done as to the proper constitution of the action and what form the judgment should now take. There was little dispute that the present respondent as executor and trustee of his father’s estate should be substituted as plaintiff, nor was there any dispute that, if judgment was to be entered in the conventional way as at 16 April 2002 the provisions of s.29(2)(a) of the Administration and Probate Act denied the substituted plaintiff any entitlement to that amount of the judgment represented by exemplary damages. The assumption made by both parties for the purpose of this appeal was that the exemplary damages were awarded for a tort and that liability after death was controlled by s.29 of that Act.

Consequently the new plaintiff sought an order nunc pro tunc effectively antedating the judgment to the last day of the hearing, namely 16 October 2001. It was said that there was inherent power at common law and explicit power in the rules to make such an order which, so it was contended, should speak as at 16 October 2001 and thus at a time before Mr Rahmat Ali’s death, at which time he was entitled to recover the exemplary damages, so that judgment at that date should be for the full sum of damages without any reduction. The judge reserved on that issue, but later held that not only did he have power to make such an order but that he would do so and thereby directed that the judgment “bear date and take effect from 16 October 2001”. His Honour also resolved in favour of the respondent plaintiff the dispute as to interest on damages, to which I shall turn later in this judgment, and further ordered in the plaintiff’s favour damages in the nature of interest of $234,706.

It is from these orders that the appellant has appealed to this Court. Apart from the complaint as to the calculation of interest, the appellant asserts that the judge erred in holding that he could antedate the judgment so as to overcome the operation of s.29 of the Administration and Probate Act and that he erred in holding that thereby the substituted plaintiff, the executor, should thereby be entitled to recover the exemplary damages.

I POWER TO ENTER JUDGMENT NUNC PRO TUNC
General

The appeal has been argued upon the assumption that s.29 of the Administration and Probate Act applies to the cause of action upon which the plaintiff was successful and in respect of which the sum of $260,000 was awarded by way of exemplary damages. At the date of death s.29 relevantly read:

“(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 not include any exemplary damages;
(b)in the case of a breach of promise of marriage shall be limited to such damage (if any) to the estate of that person as flows from the breach of the promise to marry;
(c)where the death of that person has been caused by the act or omission which gives rise to the cause of action –
(i)shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;
(ii)shall not include any damages for his pain or suffering or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life;
(iii)shall be calculated without reference to the future probable earnings of the deceased had he survived and without any allowance for the loss of his earning capacity that relates to any period after his death.

(3)…
[Provisions are here made relating to the survival of actions against the estates of deceased persons, though not in identical terms to those contained in sub-section (2). Certain qualifications of those rights are set out in sub-sections (3A) and (4).]
(5)The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation from any rights conferred on the dependants of a deceased person by Part III of the Wrongs Act 1958, and this section shall apply in relation to causes of action under the said Part III as it applies in relation to other causes of action not expressly excepted from the operation of sub-section (1) of this section.”[3]

[3]Qualifications relating to dust-related diseases were added in the year 2000, which are not here relevant.

Although seen to be fundamental to the appellant’s argument, it is by no means clear, as the respondent contends, that the section, and in particular its exception relating to exemplary damages, ought to have an effect on the outcome of this appeal. Its significance lay, so it was said, only in the fact that, if the learned judge had not made the orders he did after the death of Rahmat Ali, the appellant could have raised the question of his death, amended its pleadings accordingly and contended that further evidence might properly have been called as to the consequences of his death having regard to the restrictions contained in s.29. On the other hand the judge cut through that difficulty, as it were, by determining that he had power to antedate the judgment, by an order commonly described as being made nunc pro tunc, so as to have the consequence that the judgment spoke six months earlier, as at the final day of the trial and some months before Mr Rahmat Ali died. The respondent vigorously supported this as the proper course to take. Of course, thereafter the action had to be reconstituted in the sense that for practical purposes the present respondent as executor had to be substituted as plaintiff: indeed that course had to be taken so that he might persuade the judge to make the orders that he did. The principal relevant rules prescribing what ought to be done now appear in rules 9.09 and 9.10 of the General Civil Procedure Rules 1996, although, where a deceased person has no personal representative, the Court may proceed in the absence of any person representing the estate, under r.16.03.

It will be seen that paragraph (1) of r.9.09 is expressed in the following terms: “Where a party to a proceeding dies, but the cause of action survives. … the proceeding shall not abate by reason of the death …, but may be carried on in accordance with paragraph (2)”, which makes provision for the obtaining of orders adding or substituting a party in place of the deceased person. The words emphasised have appeared in the rules, both here and in England, since the Judicature Acts in the late nineteenth century[4], but they refer to the concept of “abatement”, which over the centuries was productive of inordinate procedural complication, whether actions were brought at common law or in equity, and in relation to the making of orders nunc pro tunc after death that had a significance which for the most part has been implicit rather than explicit. For example, the two leading cases on both the common law and equity side, both cited by the learned judge, Cumber v. Wane[5] and Turner v. London and South-Western Railway Co.[6] were both decided before the plea in abatement and the related principles of revivor and supplement (on the equity side) had been abolished in their respective jurisdictions[7] and it is the continued application of those cases, and the circumstances in which they should be applied, which is critical to this appeal. I use the word “abolished” because, although the right to make a plea in abatement was abolished by Order XXI r.20 of the R.S.C. (thought unnecessary to repeat in the G.C.P.R.), nevertheless, as can be seen from the terms of r.9.09(1) (and its predecessor O.XVII r.1 of the R.S.C.), that was and is a qualified abolition, subject to the cause of action “surviving”. As it is accepted that the relevant causes of action here survived, it is not necessary to examine further the significance of that qualification.
[4]For common law proceedings a similar expression had earlier appeared in s.135 of the Common Law Procedure Act 1852 (U.K.) and also in the Common Law Practice Act 1856 of this State, but those earlier statutory provisions were also complex and did not apply to equity proceedings : see Daniell’s Chancery Practice (5^th ed., 1871) at pp.1377ff.
[5](1719) 1 Strange 426; 93 E.R. 613; 1 Smith’s Leading Cases (13 ed.) 373.
[6](1874) L.R. 17 Eq. 561.
[7]It should be noted that in Turner’s case Hall, V.-C., sitting in the Court of Chancery, in fact referred to the common law principles as stated in Chitty’s Archbold, to which it will be necessary to return, because it was said that the principles in the two jurisdictions were not greatly different, but, at least to my eyes, that is a great simplification.

What complicates the matter in the present case is the fact that the plaintiff’s claim in negligence was not merely one which would have given rise to a plea in abatement if the plaintiff were dead or died during the course of the proceedings but was also one which in this State until 1942 when the Survival of Actions Act 1942 first introduced s.29 into the Victorian Administration and Probate Act (and in England until 1934) could not have been brought in any court whether exercising common law or equitable jurisdiction. That might be thought to have given rise in addition to a claim on the part of a defendant sued in such circumstances that the death of the plaintiff or proposed plaintiff prevented any action being brought at all, which ordinarily up to the abolition of pleas in abatement, should have given rise to a plea in bar, but at least as a plea by way of demurrer or otherwise, that the plaintiff had no cause of action, as it had died with him: actio personalis moritur cum persona. At least, from my reading of the authorities, that was not the way in which death of a plaintiff in such circumstances was treated by the common law, but the effect of a plea in abatement by reason of death led frequently to a similar unfortunate conclusion, namely, that nobody could sue or continue the proceeding (or be sued) in the place of the deceased person. Again the reasons for this have to be examined, as does the distinction between abatement and non-survival of causes of action.

Significance of former right to make plea in abatement

The nature of a plea in abatement must first be examined for the purpose of understanding the relevant authorities as to the effect of death on a cause of action and, in particular, those cases which are said to stand for the proposition that judgment may be effectively backdated to a time before death, in particular to the time evidence or argument closed, in order to preserve the cause of action for the benefit of the executor or other personal representative or the heir of a person dying during the course of proceedings but before the giving of judgment. The distinction was drawn in these terms between pleas in abatement and pleas in bar by Joseph Chitty in his Treatise on Pleading and Parties to Actions (5^th ed., 1831) at p.481:

“Whenever the subject matter of the plea or defence is, that the plaintiff cannot maintain any action at any time in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show the plaintiff is forever concluded, should in general be pleaded in abatement.”

The plea in abatement was intended to enable a defendant to challenge the action on grounds that the parties were improperly named or unable in law to sue or to be sued, as well as permitting other challenges to the form of the writ or declaration, such as were described in detail in the following pages of Chitty’s work. In broad terms, however, successfully taking a plea in abatement did not in itself bring the plaintiff’s right to sue or the defendant’s liability to an end; it merely enabled the party to have the existing proceeding terminated as improperly constituted. At common law a party defeated in that way was not precluded from bringing a second action for the same cause of action by a writ which was properly constituted.[8]

[8]See Chitty’s Archbold’s Practice of the Court of Queen’s Bench (8^th ed., 1847) Vol. II at p.1406; (12^th ed., 1866) Vol. II at p.1569 fn.(c).

Likewise before the Judicature Acts a not dissimilar distinction was drawn between pleas in abatement and pleas in bar in courts of chancery, although the terminology used and the consequences were somewhat different. In general terms, in equity, the plea in abatement brought the existing proceeding to a halt. In order that the plaintiff might continue the suit complex proceedings by way of revivor and supplement had to be taken which, if ultimately successful, resulted in an order to revive the suit or carry on the proceedings. Whole textbooks were devoted to this subject: see White’s Treatise on Proceedings in Equity by Way of Supplement and Revivor (1843) and Pemberton on Revivor and Supplement (1867). The chancery practice and law in relation to pleas in abatement and revivor may be examined in early editions of Daniell: The Practice of the High Court of Chancery.[9]
[9]See, e.g., the 5^th ed. (1871) at p.539ff. on pleas in abatement etc. and at p.1377ff. on revivor. See as to the earlier practice: 2^nd ed. (1845) p.785ff.

The differences between abatement in courts of common law and chancery were sought to be summarised in Daniell’s Chancery Practice (8^th ed., 1914)[10]:

“The plea in abatement known to the Common Law Courts lay where, by reason of the non-joinder of parties, or of some personal disability of suing or being sued, the plaintiff was alleged to be precluded from recovering upon the writ and declaration as at the time framed. Under the practice of the Court of Chancery a defendant could raise similar objections to the suit by what was also termed a plea in abatement. There was, however, a practical distinction between the common law and the chancery plea; the former was what was termed a dilatory plea which pointed out some defect which in most cases, such as the non-joinder of parties, was under the circumstances either excusable or remediable by amendment of the writ and declaration; but the so-called plea in abatement in chancery appears to have had the same practical consequences as a plea in bar.” (Footnotes omitted.)

However, although usefully stated, what was there said, so far as death of a party was concerned, tended to overstate the difficulties in chancery and understate the consequences at common law. Undoubtedly, before the Chancery Procedure Act 1852 (U.K.) “an abatement cannot be remedied by amendment” in the Court of Chancery, but it seems that personal representatives appointed since the institution of a suit could be added by amendment, at least so the editors of the 5^th edition (1871) of Daniell’s Chancery Practice thought at that time. Moreover, the procedure by way of revivor and supplement, again described in the 5^th edition of Daniell at pp.1377ff., shows that the procedure, though complex, in some cases permitted orders to be made as of course.[11]

[10]Vol. 1 at p.437.

[11]One should note that one of the objects of the Chancery Procedure Act 1852 (15 & 16 Vic. c86) was to simplify matters of this kind, so that the procedure for amendment was to a degree simplified: see, e.g., ss.52-53.

On the other hand at common law, though the plea was in strictness dilatory, the original action was brought to an end at common law where a sole plaintiff or defendant died. The basic rule was stated (as was frequently cited) by Serjeant Williams in his notes to Underhill v. Devereux (1681) in Saunders’ Reports[12]:
[12](1845 ed.) 2 Wms. Saund. 71 at 72n though it has often been cited as at 72i; but pp.72i to 72l more precisely describe the rules as to survivorship after death of one joint plaintiff or joint defendant.

“At common law the death of the plaintiff or defendant, at any time before final judgment, would have abated the suit.”

So in the 8th edition (1847) of Chitty’s Archbold’s Practice it was stated[13]:
[13]Vol. 2 at p.1406. (This was the last edition before the passing of the Common Law Procedure Act 1852.)
“If a sole plaintiff or defendant die before verdict or judgment by default, the action abates, and the plaintiff or his executor is obliged to commence a new action against the defendant or his executor, provided the cause of action survive to or against the executor.[14] … Where a sole plaintiff dies pending the action, it seems the proper course for the defendant to take, if the action be continued, is by plea in abatement or writ of error, according to the stage of the cause.” [15]

To add to the complexities, some of these rules as to abatement were ameliorated over the centuries. Thus, according to Chitty’s Archbold[16], the effect of s.1 of the statute 17 Car. II c. 8 (U.K.) passed in 1666 was as follows:
“If a sole plaintiff or defendant die after verdict, or even after the assizes begin, or after the first day of the sittings, though before the trial, and before final judgment, the action [was] not thereby abated; but final judgment [might] be signed within two terms, as if the party were alive, and then revived by scire facias by or against the executor etc.”.

Nevertheless, where the plaintiff died after verdict, the Court might, so it appears, grant a new trial on the application of the defendant and “would in such case impose terms on him to prevent his taking advantage of the plaintiff’s death”. A further modest amelioration of the common law was effected in 1697 by 8 & 9 Wm. 3 c.11 s.6 in cases where death of a party occurred between interlocutory and final judgment.[17] By that act such an action “shall not abate by reason thereof”, as long as the cause of action survived, and the judgment might be revived by scire facias and thereafter proceed to final judgment.

[14]For this proposition was cited (inter alia) 2 Wms. Saund. 72i, but, again, the correct reference for death of a sole party is to pp.72n to 72t.

[15]It seems, however, that if the plaintiff had the good fortune to die between interlocutory judgment by default and final judgment, the action did not abate as such, “if it be such as might originally be prosecuted by or against the executors”, though the executors had to go through a procedure of revival by scire facias. It appears also that after judgment the same procedure had to be adopted: Chitty’s Archbold (8^th ed.) p.1408.

[16]8^th ed., p.1407. The statute had been largely restated by author and editor: cf. the text at 2 Wms. Saund. 72n.

[17]See Chitty’s Archbold (8^th ed.) p.1407 (see also pp.1017-1018) and 2 Wms. Saund. 72o-72q.

Thereafter general amendments to the practice were made by the Common Law Procedure Act 1852 which had the consequence at common law that in general terms death did not cause an action to abate (see s.135), though again the remedy was by no means simple. By s.137 of that Act the personal representative of the deceased plaintiff was required, by leave of the Court, to “enter a suggestion[18] of the death and that he is such legal representative, and the action shall thereupon proceed …”. But then the truth of the suggestion had to be tried generally at the trial and judgment might follow as if the personal representative had been the plaintiff. However according to Chitty’s Archbold (12^th ed. 1866)[19] the right of a personal representative to enter a suggestion and continue an action was only permitted where the cause of action would have survived in favour of the personal representative.[20]
[18]The procedure for entry of suggestions is described in Chitty’s Archbold (12^th ed.) pp.1566-1568.
[19]At 1570. A similar procedure was prescribed by s.138 in cases where it was the defendant who had died. See generally the 12^th ed. for these procedures, esp. at pp.1569-1571. (This was the last edition before the Judicature Act.)
[20]See also Flinn v. Perkins (1862) 32 L.J.Q.B. 10.

What may be gathered from this esoteric law and its application is that it was common for defendants to raise a plea in abatement and to hope thereby that the plaintiff’s personal representative either would not persist or would make some further error which would make it impossible to take or pursue proceedings thereafter. But it is also important to understand that, until the statutory amendments of the procedural rules, the death before verdict of a sole plaintiff always resulted in abatement of the action itself, whether or not it was capable of revival and whether or not the defendant then had a more substantive defence to the claim, e.g. non-survival of the cause of action. Consequently the absence or otherwise of a cause of action and whether or not an existing right “died” with the plaintiff was largely irrelevant in the first place to the taking of such a plea, for an action could not proceed in circumstances where the plaintiff (or defendant) had died (or in equity it could not immediately proceed). It is also important to realise that cases determined before the abolition of pleas in abatement arising out of the death of a party were not universally resolved by the application of the maxim actio personalis moritur cum persona, although that often would be the case, but rather by reason of the simple necessity arising from the death of a party that the action could no longer proceed as originally constituted. It may also be seen that this formal defect resulted in numerous applications, some of which resulted in orders being made retrospectively, or nunc pro tunc, in order to save the action as originally constituted, but in which no issue arose as to the right of a personal representative to pursue the claim or of a plaintiff to pursue the claim against the personal representative of the deceased person. Thus it by no means follows that, where orders having a retrospective effect were made during this early period, any issue was or could have been canvassed as to whether the cause of action in or against a

deceased person survived against or in favour of an executor or other personal representative.

Moreover, in most (if not all) cases, where after a party died applications were made for orders nunc pro tunc and whereby judgments or orders were antedated, at first to the first day or to the essoign day of an earlier term and then later to the last hearing day of the proceeding before death, there was simply no discussion of the issue whether the cause of action had passed to an executor or, alternatively, whether it could be enforced against one. So nothing was said of this issue in Cumber v. Wane, nor was it discussed in what has been treated as the leading case of Turner v. London and South-Western Railway Co. Indeed it may be noted in the latter case, which was a suit in equity, that Hall, V.-C. acted in circumstances where the plaintiff’s death had come to his notice, but where there seems to have been little argument about the issue.[21] The reason for this, I would suggest, was that, as his Honour said, no detriment was incurred by either party by the dating back of the judgment.[22] It simply enabled the suit to be brought to an end without the necessity of going through the Chancery procedures which would otherwise have been required at that time to reconstitute or revive the action. (Those procedures and the Chancery practice generally at that time will be looked at below, and it is sufficient to say that they had been somewhat modified[23] from the rules which earlier applied in the Court of Chancery, although those changes did not replicate the reforms made in the common law courts by the Common Law Procedure Act 1852 (U.K.)[24].)
[21]The report at 43 L.J. (Ch.) (N.S.) 430 at 432 suggests that there was “discussion” about jurisdiction and the “state of the record”, but gives no details, but one member of counsel (not referred to in the Authorised Reports) is thanked for his “searches”.
[22]At 572.
[23]In part by reason of the passing of the Chancery Procedure Act 1852.
[24]See paras.[39]ff.

Survival of causes of action

The second element in this enquiry, as to the right of personal representatives to obtain a judgment or order nunc pro tunc in favour of the estate whom they represent where the action was originally commenced in the name of a deceased person, requires a brief description of the circumstances in which, after the death of the person in whom the right originally vested, the substantive right survived death and was capable of being enforced thereafter by that party’s personal representatives.[25] For present purposes it is sufficient to enquire as to the state of the law, and changes made to it, in the period up to the passing of “survival of actions” legislation (in 1934 in England and 1942 in Victoria). For practical purposes I shall confine that enquiry to the period up to the passing of the Judicature Act rules in England and Victoria (for practical purposes 1883) when the current general provisions as to antedating judgments and orders were introduced. See e.g. the original order XLI r.3, now represented in this State by r.59.02.[26] However it should be noted that somewhat more flexible powers as to entry of judgment had already been given by ss.120 and 138 to 142 of the Common Law Procedure Act 1852 and, especially, rr.56 and 57 of the Hilary Term Rules 1853.[27]
[25]See also, generally, Woolworths Ltd. v. Crotty (1942) 66 C.L.R. 603 at 612-615 per Latham, C.J.
[26]See also the power under r.49.04 to “give” judgment notwithstanding the death of a party after a verdict or finding of fact but that rule says nothing as to antedating a judgment. Formerly O.XVII r.1 (see the second half of that rule) gave a right to have a judgment “entered”, “whether the cause of action survives or not”.
[27]See Chitty’s Archbold (12^th ed.) Vol. II p.524. A similar rule seems to have been passed in 1834: Hilary Term Rules 1834 Wm. IV r.3; for its terms and doubtful effects see para.[35].

Perhaps the obsession during the last century, both of certain lawyers and of those who would appear to take an interest in the law, with claims for personal injuries has tended to push to one side the fact that there has always been a vast range of causes of action, in the common law sense, and rights to bring proceedings in the more general sense, none of which require proof of either an injury or of damage arising therefrom. Commentary upon, and criticism of, the actio personalis rule, as I will proceed to call it, has concentrated greatly on the practical deficiencies of the law in the personal injuries field and it would be foolish to deny that the rule produced many injustices, which were rightly corrected by legislation, and about which Knox, C.J., Higgins and Starke, JJ. said in Ryan v. Davies Bros Ltd.[28]: “The maxim is not, as has been said, a very rational part of the law …”. Moreover the amending legislation has been seen, at least in some of its manifestations, to have had its own deficiencies which Sir Owen Dixon, for one, pointed out in his terse commentary on it published in the first volume of the Queensland University Law Journal.[29] As he said[30], “few friends could be found for the rule … but … there has grown almost as much dissatisfaction with the reform …”
[28](1921) 29 C.L.R. 523 at 533.
[29](1948) 1 University of Queensland Law Journal 1.
[30]At p.1.

The actio personalis rule, however, was not otherwise seen as having a broad scope beyond the range of injuries inflicted by tortious conduct. It seems to have had no direct application to claims in equity nor, so far as I can gather, to other common law claims, especially those derived from contracts, albeit that up to the early part of the seventeenth century there was considerable dispute as to that question, largely arising out of the derivation and development of the cause of action in assumpsit. There seems, however, to have been little dispute about the enforceability of claims on specialties and (generally) in covenant.[31] Actions in debt were within the “rule”, largely because trial had been by wager of law, but that restriction did not affect the executor’s right to sue.[32]
[31]See Holdsworth’s History of English Law, Vol. III pp.574-575, 578; Simpson History of the Law of Contract, 37, 83.
[32]Holdsworth, loc. cit., pp.575, 584; Simpson loc. cit. 83-84, 558-560.

Indeed, there is much doubt as to the origins of the actio personalis maxim, not because the rules ultimately were uncertain as to whether particular claims did or did not pass to the executor or other personal representative (or were unenforceable against them) after death, but because the express terms of the maxim seem, so far as one is able to detect, not to have been used before the latter part of the fifteenth century. At one time it was suggested that Coke devised the maxim in the early seventeenth century but later research has showed that it had been used in the year books as early as 1479.[33] Reference to, and reliance upon, it gradually became more frequent in the next century or so, but it is here unnecessary to examine the dispute, if it can now so be called, between Goudy, Holdsworth & Winfield (see in the next paragraph) as to its origins, but see Simpson: A History of the Common Law of Contract (1975) pp.562-565 for a recent summary. The expression “actio personalis” has itself caused difficulties of definition. The assumption in recent years has been that, notwithstanding its language, for practical and present purposes it has largely been confined to actions in tort while, on the other hand, it has not been treated as synonymous with actions in personam. The time when the maxim first came to be used suggests that assumptions even then were being made as to the limits of its use, but it is equally clear that it did not at first necessarily exclude actions in contract, for there were heated debates in the courts, and in particular between the Courts of King’s Bench and of Common Pleas, until the opinions expressed (in the Court of King’s Bench) in Pinchon’s Case[34] that an executor might sue in assumpsit for a debt owed to the deceased spread to the other courts, who appeared to accept that likewise an executor could be sued for a debt made by a deceased person: see Fawcet v. Charter[35].
[33]See Mich. 18 Edw. IV fol. 15 pl.17, a case of trespass for cutting trees.
[34](1612) 9 Co. Rep. 86b, 77 E.R. 859.
[35](1623) Cro. Jac. 662; 79 E.R. 573.

For this purpose one must not forget the distinction between the effect of death of a party on a specific proceeding and its effect on the right of action itself, in terms of transmission of interest or burden. Even in tort, where the operation of the rule was later seen so harsh as to require reform, there was by no means uniformity. Apart from the chapter by Professor Simpson in his History of the Common Law of Contract, just referred to[36], the question was examined in detail by Professor Goudy in “Two Ancient Brocards” in Essays in Legal History (1913) (ed. Vinogradoff), by Holdsworth in his History of English Law Vol. III 576ff. and by Winfield in “Death as Affecting Liability in Tort” in 39 Columbia Law Review 239 (1929). The latter article most comprehensively deals with questions of liability in tort, from which it is clear that, although the rule must be treated as having its basis in common law[37], trespass was seen as sufficiently affected by the rule as to require remedial legislation at a very early stage of the common law: see, starting with two doubtful examples in the thirteenth century, 52 Hen. III, c.28; and 20 Edw. I. c.2, and then the string of legislation in the fourteenth century (in more general terms relating to various trespasses): 4 Edw. III c.7; 25 Edw. III st.5 c.5; 31 Edw. III st.1 c.11.[38] Those particular provisions remained part of the law of England and Victoria until the survival of actions legislation, as can be seen from their re-enactment as s.26 of the Imperial Acts Application Act 1922 of this State, which was incorporated into s.25 of the Administration and Probate Act 1928.[39]
[36]Chapter 11.
[37]See Winfield loc. cit. 243.
[38]See especially Winfield loc. cit. at pp.242-244.
[39]This section was repealed by the Survival of Actions Act 1942.

In general terms these statutes had done little to alleviate the plight of those who wished to sue for a tort committed during the deceased’s lifetime, although there were a few torts (in addition to those affected by legislation) which remained outside what was understood to be the actio personalis rule, as it was developed. Moreover, what was truly “personal” and what was not remained uncertain. By 1583 the courts were able to hold that the representatives of a deceased person were liable for a wrong done by the deceased insofar as that wrong had produced actual benefit or enrichment to his estate: see Sherrington’s Case[40], but even three centuries earlier, in Bracton’s time, it seems that an obligation to restore property did not die with the person, so that executors were almost invariably held liable in detinue.[41]
[40](1583) Savile 40; 123 E.R. 1000. The claim was for a “coup de 100 querks” and “pur prisel de 20 boves le Roigne”, which was translated by Bowen, L.J. and Cotton, L.J. in Phillips v. Homfray (1883) 24 Ch. D. 439 at 457-458 as referring to a claim “for cutting 100 oaks … and for taking 20 cattle of the Queen”.
[41]See Holdsworth, Vol. III p.579.

It will be seen therefore that the rule was, or certainly became, one covered with exceptions[42], albeit that at its heart real injustice might be and certainly was in the future likely to be caused. It was the development of the torts of trespass and case into what is now known as that of negligence which resulted in the greatest injustices, for the rule was held firmly to apply to actions for damages in those kinds of cases. Indeed, Winfield, after referring to one of the few later significant remedial statutes (3 & 4 Will IV c.42) passed in 1833, thought fit to observe that, by enabling personal representatives to sue for damage to the real estate of a deceased and by making personal representatives liable for injuries committed by a deceased person to real and personal property, “the Act filled up most of the gaps in this branch of the law”.[43] Moreover, whatever may have been said in recent years as to the scope of the rule, and there seems to have been a real dispute as to the extent to which it applied to statutory rights of action, there appears little basis for believing that the rule extended much beyond the common actions for damages in tort arising out of harm caused to an individual. In broad terms, therefore, one might say that the word “personalis” should be translated as “personal”, but only in the sense that it relates to harm to the person, in contrast to claims which involved assertion of claims of right whether related to real or personal property, as was reflected in the exception relating to claims in detinue, at least from the time of the amendments made in 1833 by the legislation just referred to.
[42]In Holdsworth’s view “the exceptions have to a large extent eaten up the rule”, Vol. III p.585, though that was not a unanimous view. (Holdsworth was writing before the 1934 Act.) But cf. Phillips v. Homfray (1883) 24 Ch.D. 439 at 454 per Bowen and Cotton, L.JJ.
[43]29 Columbia Law Review at p.244. Cf. the more critical opinion of Bowen and Fry, L.JJ. in Finlay v. Chirney (1888) 20 Q.B.D. 494 at 502-503.

Common law practice as to entry of judgments nunc pro tunc

For present purposes it is not necessary to go further than to give this broad view of the operation of the actio personalis rule, for the enquiry I am embarking upon, convoluted though it may seem, is to ascertain the circumstances in which courts may have seen fit to give judgment or make orders nunc pro tunc, by antedating the effect of those judgments and orders. The issue here is whether the rule has been held to be capable of being bypassed, as it were, by the making of a retrospective order, other than by one which was directly authorised or required by statutory provisions such as that contained in the statute of Charles II. Furthermore, it seems that the actio personalis rule had no operation in relation to equitable claims, save for those which were directly dependent upon proof of a right of action at common law.[44] It is, however, necessary to see how the various rules of practice as to antedating judgments were applied in the period, for practical purposes, up to the decision in Turner in 1874. In particular, as previously noted, it is important to identify those circumstances in which orders were made of a retrospective kind, nunc pro tunc, in cases where the procedural rules, both on the common law and equity sides, would have brought the action to an end for all practical purposes unless some such order nunc pro tunc was made.
[44]But see, e.g. Phillips v. Homfray (1883) 24 Ch.D. 439 (a suit for a declaration etc. arising out of trespass).

But there is another matter which first ought to be examined before looking at those authorities. In the early textbooks the subject of judgments nunc pro tunc appears invariably, in those that I have examined, and in particular in Chitty’s Archbold, only[45] in sections which deal with death after verdict (or interlocutory order) and before entry of final judgment. This may seem a curious arrangement, but since the time of Charles II all parties with the benefit of a verdict were entitled to delay entry of judgment at least for a period up to two terms after the verdict.[46] The general proposition as to entry nunc pro tunc may be taken from the 12^th ed. of Chitty’s Archbold[47] where it was said, (significantly) under the heading: “Death between Verdict and Judgment”:

“The Court will, in general, permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by the act of the Court. Therefore, if a party dies after a special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for argument, or whilst the Court are considering of their judgment, the Court will allow judgment to be entered up after the death nunc pro tunc in order that a party may not be prejudiced by a delay arising from the act of the Court.”[48] (Emphases added except for “nunc pro tunc”.)

The proposition was then qualified by a statement that, if the judgment was not entered up “by reason of the laches of the plaintiff, or of those representing him, or by reason of a proceeding in the common course of law, as by proceeding in error or the like”, then the Court would not allow the judgment to be so entered up.[49] In fact it seems that the Court would not grant such leave in any case “except where the party entitled to sign judgment has been prevented from so doing by reason of an unavoidable delay occasioned by an act of the court”. At the same time the editor reminds[50] one that “judgment must be entered up of the day of the month and year when signed, and shall not have relation to any other date, but it shall be competent for the court or judge to order a judgment to be entered nunc pro tunc …”. This aspect of the proposition was there (and elsewhere) said not to depend upon statute, “it is a power at common law, and by the ancient practice of the court, to prevent an unjust prejudice to the suitor by the delay unavoidably arising from the act of the court”, citing Evans v. Rees, per Lord Denman, C.J. (speaking for the Court of Queen’s Bench)[51].

[45]There is a brief mention of the expression in the chapter on “The Judgment after a Verdict” but always with a bare cross-reference to the chapter on “Death etc.”: see, e.g., 12^th ed. at pp.525, 527.

[46]See below, at para.[35].

[47]At 1572; 8^th ed. at 1016. This is the passage relied on by Hall, V.-C. in Turner at 566: see below para.[45]. Similar propositions to those referred in this paragraph appear also in Tidd: The Practice of the Courts of King’s Bench and Common Pleas in Personal Actions and Ejectment (9^th ed., 1828) pp.932-935. See also 2 Wms. Saund. at 72(o)-(p). Tidd’s discussion is in a chapter entitled “Of Judgments”, but only in the context of abatement by reason of death etc.

[48]This latter qualification seems to rest on the maxim, referred to in later cases: “actus curiae neminem gravabit”, but it seems never to have been used to alter substantive rights.

[49]At 1572-1573.

[50]At 1573.

[51](1840) 12 Ad. and E. 167 at 175; 113 E.R. 774 at 777.

On the other hand in the section of Chitty’s Archbold[52] describing the consequences of “Death before Verdict or Judgment by Default”, there is no suggestion that judgment could in some such circumstances be obtained or entered nunc pro tunc, for it is there reiterated “at common law … the suit abated”, subject to various statutory powers sometimes permitting reconstitution. This is likewise subject to the qualification that the expression “before the verdict” was generally interpreted to treat death from the beginning of the assizes as “after” verdict, on the then accepted fiction that the sittings were considered “as one day in law”.[53]
[52]12^th ed. at pp.1569-1571; 9^th ed. pp.1406-1407.
[53]Chitty’s Archbold, 12^th ed. at p.1572; Tidd at p.933.

What may be seen from this and every other statement as to the court’s powers that I have examined is that the rules of practice as so stated were directed entirely to the question of entry of judgment, not to the giving of judgment (otherwise than by entry), nor to the pronouncement of a judgment in accordance with verdict or otherwise. As will be seen shortly (see paras.[32]ff.), pronouncement of judgment did not follow as of course so that entry was critical to final relief. It seems that the rules were devised, at least in the first place, to ensure that judgments which ordinarily had to be entered up some time after verdict (or other order), and thus faced the potential risk of abatement by reason of the death of a party, could be antedated to the effective date on which the matter was determined in court, ordinarily the day of verdict, by entry or signing of the judgment nunc pro tunc. The reasoning in such circumstances was entirely logical. It required no hypothetical antedating, but merely the practical effectuation of what had already been decided, ordinarily at a time when the party was capable and suffering from no relevant disability. What is remarkable is that the same concept is still preserved in the current General Civil Procedure Rules, where by r.49.04 it is laid down: “Where a party to a proceeding dies after the verdict or finding on the questions of fact, the Court may give judgment notwithstanding the death.” That provision can be traced to what formerly appeared in the latter part of Order XVII r.1, introduced (doubtless as reflecting the former common law practice) as part of the original Judicature Act rules in both England and Victoria.

It may therefore be thought, subject to the authorities on the subject, that the common law rule of practice was not intended to deem a result to have occurred which could not lawfully have been so decided at the time when the verdict was given or some other determinative order was pronounced. In other words, it was

not intended, at least at first, to permit a court to say, whenever a particular party no longer had the relevant legal capacity because of death and that party’s claim ought otherwise to have been treated as abated, that it would deem the order or judgment to have been made or given at some time in the past, when the party was alive and the claim enforceable. It must be conceded, of course, that Turner’s Case, in a suit in equity, deemed the decision to have been given on the merits earlier than the pronouncement of judgment, but why and in what circumstances will have to be examined.

It is now necessary to see how and in what circumstances orders directing entry of judgment were made nunc pro tunc. As previously noticed, the emphasis, certainly in the earlier cases, was on the concept of entry rather than the giving of judgment or the making of orders, although some confusion may be engendered by the fact that virtually all common law decisions arose out of verdicts of juries rather than out of findings by judges. Unfortunately it is not always possible to determine in what circumstances the orders were made, nor precisely what was the form of the order, but, as will be seen, most, if not all, were expressed in terms of permitting the entry (or the signing) of judgment.

If one may take first Cumber v. Wane decided in 1718, then it was certainly a case where the Court ordered that the plaintiff “might enter the judgment nunc pro tunc”.[54] The need for an order arose out of the death of the defendant in error between the time that the Court sitting in banc reserved its decision and the time at which it was announced. From the report it appears that there had already been judgment for the plaintiff on a demurrer to which objection was made in error. So, although technically there had not been a verdict of a jury, the proceeding, at least in modern terms, had already resulted in a decision in favour of the plaintiff and it was the defendant who was seeking to review it. The decision of the Court was to affirm the decision already given and so the question was simply whether the plaintiff

might enter that judgment nunc pro tunc which had the effect of affirming the original decision. The claim was in indebitatus assumpsit, so that by then ordinarily no question could have arisen as to the plaintiff’s right to enforce its claim against the personal representatives of the defendant after the defendant had died. The issue was thus entirely procedural and it seems that there was no argument, certainly no argument is reported, although a number of decisions appear as part of a footnote to the judgment of Pratt, L.C.J. in his conclusion on this issue[55], but which do not appear inconsistent with this analysis.
[54]1 Strange at 427; 93 E.R. at 614.
[55]Ibid. Their dates suggest that they were added by the reporter.

On this appeal counsel cited one of the cases noted to the report as describing an order or judgment nunc pro tunc in relation to a cause of action which, so it was argued, could not then have survived against the defendant’s personal representative, the defendant having died after the Court had taken time to consider its decision: Craven v. Hanley[56]. Clearly it was an action in trespass, although, having regard to Sherrington’s Case and the three statutes which ultimately became s.25 of the Administration and Probate Act 1928, it does not follow conclusively that there was no cause of action which might have survived against the defendant. There certainly was argument, but the Court determined that the defendant’s executor was not to blame for joining an immaterial issue and ought not to suffer by the Court’s having taken time to consider its decision.[57] But again it is critical to notice that the defendant had obtained a verdict while he was alive and that the reported issue arose when the plaintiff moved in arrest of judgment. On this occasion the original verdict was set aside and the plaintiff, having won on the legal argument, obtained leave to sign and enter judgment nunc pro tunc because the trespass was (otherwise) confessed by the plea. The difficulty, however, facing the respondent in relying on this particular judgment is that it was in effect an appeal and not a case relating to the obtaining of a primary judgment. There are ordinarily considerations of a different kind which have always given appellate courts in these circumstances the discretion, used very cautiously, to antedate orders to the time of trial rather than at the date that the appellate court makes its findings: cf. Ryan v. Davies Bros, Wing Lee v. Lew[58] and Nicol v. Allyacht Spars Pty. Ltd. (No. 2)[59]. Again in another case cited in the reporter’s footnote to Cumber v. Wane, Astley v. Reynolds[60], an action in assumpsit, a case was reserved, but at what stage it is not clear. In the end the plaintiff obtained judgment but the defendant had died pending the argument, so that judgment was ordered to be entered nunc pro tunc, in reliance on Cumber and others. There seems not to have been any argument on the issue.
[56](1738) Barnes 255; 94 E.R. 902.
[57]Barnes at 255; 94 E.R. at 903.
[58][1925] A.C. 819 (P.C.)
[59](1988) 165 C.L.R. 306.
[60](1729) 2 Str. 915, 93 E.R. 939.

A detailed examination of many more of these earlier cases is unnecessary, at least those in the common law courts. As already noted, most, if not all, of the statements of the practice or rule, explicitly refer to the entry of judgment, not the giving (or oral pronouncement) of judgment. The reason is not hard to find, though it may surprise modern lawyers. The process of obtaining judgment for a very long time in the common law courts did not require, nor ordinarily even include, the pronouncing of judgment in open court. As Serjeant Stephen in 1824 explained it in his work, Principles of Pleading (1st ed)[61]:

“Judgments…were formerly pronounced in open court: and are still always supposed to be so. But, by a relaxation of practice, there is now, in general, except in the case of an issue in law, no actual delivery of judgment, either in court or elsewhere.”

[61]At p 132. The passage is cited and the discussion is relied on generally by Holdsworth op. cit. Vol. IX pp 259ff.

This curious outcome arose from the fact that the signing, entry and enrolment of judgments at this time flowed from the verdict or from some other step or failure to act (such as default in delivering pleadings or the like) or order, conclusive in effect but interlocutory in form[62], and was not dependent on a judge formally pronouncing the outcome of litigation in court, but on some court official signing an appropriate document recording the verdict. Ordinarily a common law action had to be resolved by jury verdict, unless some interlocutory order or step had previously brought it to an end. The former common law practice[63] was summarised by Jordan C.J. (on behalf of Halse Rogers J., Maxwell J. and himself) in Storer v Smith’s Newspapers Ltd[64], which was in effect accepted by Dixon and Williams JJ. in Opie v Opie[65]:

“Under the old practice, at the conclusion of a trial a formal record of the jury’s verdict on the issues was prepared which was called the postea[66] … ; and the method of obtaining judgment[67] was to procure an officer of the Court to stamp the postea. The stamping operated as a signing of judgment, which was inchoate until costs had been taxed, and became final when costs were taxed and inserted … Formal judgment was then entered on the judgment roll …”

[62]At the time they were many and complex, but for convenience’ sake I shall call them “interlocutory orders or steps”. For some examples, see the passage cited from Chitty’s Archbold (12^th ed.) p.1572 in para.[25] above.

[63]Over the centuries the practices of each of the common law courts varied to a greater or lesser degree, so the practices here referred to largely represent those up to the passing of the Common Law Procedure Acts of 1852 and 1854 (U.K.), but the general descriptions which follow comprehend some of the changes brought about by those acts.

[64](1939) 39 S.R. (N.S.W.) 77 at 79.

[65](1951) 84 C.L.R. 362 at 370.

[66]Meaning “afterwards”, as taken from the first word of that part of the nisi prius record which was added after verdict had been taken.

[67]This varied from one common law court to another and changed over the centuries, but in each case only in detail.

A similar brief summary was given by Lord Esher M.R in Holtby v Hodgson[68], who proceeded to contrast common law judgments with those given in Chancery (“without the verdict of a jury”), and then with those generally given after the Judicature Act, when, as he said, it was desired to make the relevant procedures identical, so that “power is given to the judge at nisi prius to do what he could not have done before, to direct judgment to be entered according to verdict, which is the same thing as giving him power to give or pronounce judgment”[69]. The old procedure is also described in some detail in Tidd’s Practice (9^th ed) Ch XXXIX (“Of

Judgments”) and is usefully discussed by Young C.J. in Eq. in Minister for Environment v Carson[70]
[68](1889) 24 Q.B.D. 103 at 106, concurred in by Lindley and Lopes, LJJ.
[69]At 107.
[70](1994) 35 NSWLR 342 at 358-361. His Honour (at 359G) suggests that, at least in the early days of the Colony (at 361C), it was necessary to move the Full Court for judgment, but that seems to have fallen into disuse much earlier in England and was not required in the Court of Common Pleas. The chancery practice was contrasted at 361-362.

This practice meant that upon verdict no judgment was pronounced orally and that the effective date of the ultimate judgment was its date of entry (in the sense of signing, which was treated as final[71] judgment), as still applies to the entry of default judgments. The modern rule that judgments speak from the moment they are pronounced had no practical common law equivalent. But the delays inherent in the old system led to cases where a party lost the benefit of a verdict by reason of death and consequent abatement. So practices developed, and eventually statutory and rule changes were made, which preserved the rights of a plaintiff with a successful verdict. Many of the reported cases as to the making of orders nunc pro tunc are merely examples of circumstances in which the courts considered it fair, and occasionally unfair (or in breach of some existing rule of practice), to allow a judgment as entered or signed to operate from the date of verdict or of some interlocutory order entitling the plaintiff or defendant to succeed. In appropriate circumstances the antedating of the entry of judgments merely gave expression to the fact that the plaintiff (or defendant) had already been successful and, to that extent, there was no element of artificiality. But, as Tidd[72] observed, “as the judgment relates to the first day of term, if the party be alive after that day, it may be entered, and costs taxed thereon, after his death”. This flowed from the principle[73], if so it can be described, that a “judgment, by general intendment of law, has relation to the first day of the term whereof it is entered …”.
[71]Finch v. Brook (1836) 2 Bing (N.C.) 710;. 132 E.R.274;. and see Chitty’s Archbold 8^th ed. at pp.457-458.
[72]9^th ed. at p.932 and other rules of practice allowed, e.g., entry of judgment during the succeeding vacation as of the first day of the preceding term, where a party died during vacation: ibid.
[73]Tidd 9^th ed at p935. See, as to dating judgment to beginning of trial: Macansh v. Bowman (1872) 10 S.C.R. (N.S.W.) 370 (F.C.).

Moreover, from the time of Charles II, not only did judgments continue to be dated back to the first day of term when duly entered, but in addition, by 17 Car. II c.8 s.1 , if “judgment be entered within two terms after the verdict”, then the death of a party after verdict could “not be alleged for error” and judgment could be entered “as if the party were alive”. This antedating (as of course) of the entry of judgments was continued under ss.135-139 of the Common Law Procedure Act[74] modified, at least in effect, by the Hilary Term Rules of 1834[75], applicable to all common law courts, which laid down that “all judgments , whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed; and shall not have relation to any other day: Provided, that it shall be competent[76] for the court, or a judge, to order a judgment to be entered nunc pro tunc”. Almost identical rules were passed as part of the Hilary Term Rules of 1853 (r.56) and of the Trinity Term Rules of the same year (r.32). Nevertheless the editor of Williams’ Saunders[77] commented both in 1845 and again as late as 1871: “This rule does not appear to have made any alteration to the common law practice”, as stated in Williams’ notes, largely, one would surmise, because the Common Law Procedure Act had preserved the practice of antedating judgments to the date of verdict.
[74]Which maintained the existing practice: see Flinn at 11.
[75]R. Pl Gen. H. 4 W. IV reg.3. See Tidd’s New Practice (1837) p. 548, being in effect a supplement to the 9^th edition of his Practice.
[76]See as to the meaning of this word, i.e. that it gives the judge a discretion, per Pollock, B. in Hemming v. Batchelor (1875) L.R. 10 Ex 54 at 58, speaking of the successor r.56 of the Hilary Term Rules of 1853.
[77]6^th ed. (1845), at 72p fn.(p); Notes to Saunders’ Reports (1871) at p.244 (a 7^th edition which abridged the actual reports). The editor was the son of Sarjeant Williams, Edward Vaughan Williams, who was a judge of Common Pleas from 1846.

The complexity and inconvenience of these rules are obvious, such that it is not surprising that there are well over 50 cases reported in the English Reports and other nominate reports as to how and in what circumstances the various common law courts saw fit to make orders nunc pro tunc to antedate judgments to an appropriate date and to preserve the benefit of verdicts and other orders for or against parties who had died. It is pointless to canvas them all, but the complexity of

the process can be gauged by what occurred in what was treated as one of the leading cases on the subject, Evans v. Rees[78]. There it appeared that (1) verdict was brought in on 27 March 1839, (2) the defendant died on 3 April 1839, before the Easter term began, (3) the plaintiff moved for a new trial during that term but the motion was refused on the last day of that term, (4) costs were not sought to be taxed until after Trinity term expired on 12 June 1839, so that (5) judgment was not signed until 24 June, being more than two terms after verdict[79]. The Court asserted its power to permit judgment nunc pro tunc pursuant to its inherent powers “to prevent an unjust prejudice”[80], but for present purposes it is significant to note that the order made (on 11 June 1840) was that there be leave to enter judgment “as of 22d May, in Trinity Term, 1839”. The effect of that judgment when entered, as Lord Denman C.J. explained[81], would nevertheless be good in favour of the defendant because of the operation of the statute 17 Car II c.8, despite the recent Hilary Term rule, for its proviso permitted the Court still to make an order nunc pro tunc. The obscurity of the outcome (in particular the choice of 22 May), depending on so many factors for the resuscitation of the plaintiff’s rights against the deceased defendant, suggests that the general rule of practice and its many variants were devised to cope with a procedural milieu quite different from our own, one beset with technicalities which even modern lawyers would find hard to appreciate.

[78](1840) 12 Ad & E. 167; 113 E.R. 774, in the judgment of Lord Denman, C.J. for the Court of Queen’s Bench.

[79]I shall not examine the further complications arising from the fact that, as in that case, the plaintiff died during the vacation: see, e.g., Tidd’s Practice 9^th ed. p.932.

[80]At 175; 777.

[81]Ibid

There is thus little purpose in examining further the myriad cases except to add that in Evans v Rees[82] the Court emphasised that the Court’s powers did not depend on statute or rule but on the common law “to prevent an unjust prejudice to the suitor by the delay unavoidably arising from the act of Court”, unless delay was imputable to the party applying. But the rule’s complexities serve to explain why so many cases arose in the period up to the Judicature Acts and are emphasised by the rarity of reported applications of the rule in later common law actions. What is also suggested is that the rule was primarily designed to overcome the technicalities concerning entry of judgment, not to impose an artificial liability after death of a party. That even the common law courts were coming to see the rule’s limitations may be gauged by the comment of Pollock, B. In Hemming v. Batchelor[83], when, in speaking of rule 56 of the Hilary Term Rules of 1853 specifically enabling orders nunc pro tunc, he said:
[82]At 175; E.R. 777.
[83](1875) L.R. 10 Ex. 54 at 58.

“I refer to this rule for the purpose of drawing attention to the word ‘competent’. This word is explained by what was the practice before any such rule of court existed. It was then the practice of the courts, if either party died pending the time taken for argument on a motion in arrest of judgment or for a new trial, to enter judgment as of the term in which judgment would otherwise have been given. This judgment nunc pro tunc was a fiction[84] of the which the courts availed themselves for the purpose of aiding the party whom they thought entitled to judgment.”

In the same case Kelly, C.B.[85], in refusing a rule that judgment be entered nunc pro tunc, said:
“There are cases, no doubt, where a decision upon the merits has been obtained and where, owing to the death of one of the parties, effect cannot be given to this decision without the intervention of the court.”

This seemingly cautious approach after the making of the Hilary Term Rules may suggest that the common law rule of practice was not designed to overcome bars to legal liability but only to overcome formal difficulties arising out of earlier practices giving rise to delays in the entry of judgments. Moreover there seem to have been no common law decisions, at least that I have discovered, which deal with the effect of death before verdict.

[84]The word “fiction” was adopted with seemingly greater enthusiasm by Darley, C.J. on behalf of the Full Court of New South Wales in Hoskins v. Thomson (1893) 10 W.N. (N.S.W.) 121 at 123 (in a case where both Turner and Hemming were cited), where the Chief Justice said: “This is one of those cases where the court will adopt a fiction of law in order that justice may be done.” The order related only to the costs of a successful demurrer by one of two defendants who died before the demurrer was heard.

[85]At 57.

Practice in courts of equity as to antedating judgments

These technicalities may also prompt an enquiry as to why courts of equity adopted the common law rule with relatively little examination of its purpose. Strangely the Chancery Division seems largely the jurisdiction in which the rule has been applied since the Judicature Acts, at least in the majority of the relatively few reported cases in England[86]. Entry of decrees and orders in Chancery, though complicated by delays in their drawing up, passing and entering, did not affect their operative effect, for they took “effect from the time the judgment of the Court was given, and the decree pronounced…”.[87] The power to make orders nunc pro tunc, however, had been exercised frequently for a related but more mundane purpose, namely to allow the enrolling of decrees and orders out of time, indeed as a matter of course, in a jurisdiction where (unlike at common law[88]) there was a time limit prescribed for so doing: Man v Ricketts.[89] Lord Lyndhurst L.C. there[90] made clear that for that purpose abatement by reason of death was of no consequence because, when entered, the decree had relation back to the day of its pronouncement.
[86]The only cases in the Authorised Reports in which Turner (or Cumber) has been applied were decided in the Chancery Division: Ecroyd v. Coulthard [1897] 2 Ch. 554; Bonsor v. Musicians Union [1954] Ch. 478 at 525. The court refused to apply Turner in Re Wilks [1891] 3 Ch. 59 and Borthwick v. Ellerslie Steamship Co. (No. 2) [1905] 2 K.B. 516. The pattern in Australia and elsewhere is less obvious (though not frequently applied), but in recent years Turner has been occasionally applied with relatively little attention to its antecedents and purpose.
[87]Clapham v. Phillips (1674) Rep. temp. Finch 25 (per Lord Nottingham L.C.); Man v. Ricketts (1845) 2 Coop. temp. Cott. 8 at 36; 47 E.R. 1022 at 1037; Re Risca Coal Mining Co. (1862) 4 De G. F. & J. 900. And see Daniell 9^th ed 844 fn (b).
[88]See, e.g. Chitty’s Archbold (8^th ed.) Vol. I p.459: “The party entitled to the judgment may postpone the signing of it as long as he pleases”, subject to the “two terms” rule: p.460.
[89]At 13; E.R. at 1023. The case contains extensive discussion and commentary on the Chancery practice to that time, including the effect of abatement: see at 35ff: E.R. at 1037ff.
[90]At 36: E.R. at 1037-1038.

The Chancery practice as to the consequences of abatement by reason of death before the giving of judgment (or the pronouncing of an order or decree) is presently of greater importance, since I have found no common law decisions dealing with that issue, but that practice was by no means clearly worked out on the basis of principle.[91] In the comparatively few Chancery decisions preceding Turner there is virtually no discussion of principle and the basis for the adoption of the rule in Chancery and its application there is by no means clear. In the first case which seems to have adopted the rule, Davies v. Davies[92], Lord Eldon, L.C. had reserved judgment for some time, but the defendant died in the interval before the matter was set down for judgment. Counsel for the plaintiffs relied on what is called an unreported decision of Jones v. Davis (or Jones v. Le David, see fn.94) in the Court of Exchequer to the effect “that the death of a defendant does not necessarily prevent judgment”. All that the report of Davies states about the decision is that: “Judgment was pronounced accordingly by the Lord Chancellor a few days afterwards.” In the later case of Belsham v. Percival[93] the reporter refers to Davies and says the case cited was “probably” Jones v. Le David[94], which he cites as appearing in an early practice book, Fowler: The Practice of the Court of Exchequer Upon Proceedings in Equity[95]. He gave[96] a brief summary of the latter case. The note of Jones v. Le David given by Fowler in his work reads[97]:

“So where a cause was finally heard, and the court took time to consider of their judgment, and in the mean while the party plaintiff died, the court gave judgment nunc pro tunc, and ordered that their decree should have relation to, and be entered upon, the day that the cause was finally heard; and in this decree the plaintiff had relief. Jones v. Le David Hil. T. 1791, in Scac.”

Nothing further was said about the case or the practice but it should be noted that it described the Exchequer Court’s practice in its equity jurisdiction (abolished in 1841), not that relating to common law proceedings.

[91]Nothing seems to have been said in Man v. Ricketts about the problems caused by earlier death.

[92](1804) 9 Ves. Jun. 462; 23 E.R. 681.

[93](1847) 2 Coop. Temp. Cott. 176; 47 E.R. 1111 (but not in the report of the latter case in 8 Hare 157). See below para.[31].

[94](1791) cited in 2 Fowl. Exch. Pract. 200. In Belsham the page is wrongly given as 169.

[95]2^nd ed., 1795.

[96]At 176; E.R. at 1111.

[97]I set out the note in full as Fowler’s work is difficult to obtain.

What Lord Lyndhurst, L.C. had said in Man v. Ricketts may be of general interest in relation to the making of orders nunc pro tunc but his discussion relating to the effect of death of a party, in particular a plaintiff, is of assistance only in a limited way. The defendant’s contention was that it was irregular to pass and enter a decree whilst the suit was abated or had become defective by reason of the death of one of the parties. To this Lord Lyndhurst said[98] that, because a decree when drawn, passed and entered bears date on the day on which it was pronounced, it therefore had “relation back to that day”, so that it followed that it was “unaffected by any event subsequent to that day”. Technically a revivor might have been required but it seems that the Lord Chancellor considered that the practice was not to insist on that course being taken to overcome such an irregularity. None of the other cases discussed in the report took the matter further as they each related to events after judgment had been pronounced.
[98]At 36; E.R. at 1037.

The next reported example of the application of the rule in the Court of Chancery is, so far as I am aware, Belsham v. Percival[99]. Again this was a case where a party had died between the hearing of the suit and the giving of judgment. The only case directly referred to was Davies. Wigram, V.-C. observed “that the death of a defendant between the hearing of the cause and the judgment did not render a revivor necessary. This had frequently happened from the pressure of business in Lord Eldon’s time, and the point had been repeatedly decided by his Lordship.” Again it is not known what were the other decisions of Lord Eldon to which the Vice Chancellor was referring and the discussion is of little assistance. No further explanation of the practice was given in the briefly reported decision of Lord Cottenham, L.C. in Kirk v. The Bromley Union[100] where it is said the suit had abated by reason of the plaintiff’s death, but judgment was nevertheless given.
[99](1849) 8 Hare 157; 68 E.R. 313; 2 Coop. Temp. Cott. 176; 47 E.R. 1111.
[100](1848) 2 Coop. Temp. Cott. 177; 47 E.R. 1112.

Again later decisions throw no further light on the basis for permitting the antedating of judgments in chancery. In Collinson v. Lister[101], the cause became abated between the hearing and delivery of judgment by Sir John Romilly, M.R. Objection having been made to the drawing up of a decree, the Master of the Rolls said, without further elaboration, that he was satisfied that the matter presented “no difficulty”, as the point was “settled by the case of Cumber v. Ware [sic]”. Collinson was one of the cases cited in Turner, as was Troup v. Troup[102], where the issue was raised whether a proceeding could be revived after death for the purpose of taxing costs. Here the plaintiff had died after argument was completed but before judgment had been handed down. It was noted that the Lord Chancellor (Lord Chelmsford) had directed that the decree be entered up nunc pro tunc as of the day when argument concluded. The report, however, did not deal with that issue and so it provides little help as to the Lord Chancellor’s reasons. Another authority referred to in Daniell[103] was in fact a case of abatement by reason of bankruptcy where the Vice-Chancellor (Sir William Page Wood) simply stated that “one or both of the parties have become bankrupt since the hearing”, but said that “upon the authorities the course of the Court” permitted him to deliver judgment in those circumstances: see Boucicault v. Delafield[104]. However no authorities were cited.
[101](1855) 20 Beav. 355; E.R. 639.
[102](1868) 37 L.J. (Ch.) 390; 10 W.R. 573.
[103]5^th ed., vol. 2, p.869-870 fn.(b).
[104](1863) 1 H. & M. 597 at 600; 71 E.R. 261 at 262.

This was the flimsy material upon which the Vice-Chancellor sought to rely in his decision in Turner v. London and South-Western Railway Co. Although some of the cases mentioned above had been referred to in various works of practice such as Daniell and Seton’s Judgments and Orders[105] over the years, none had given rise to any discussion of principle. There is little doubt that in his reasoning the Vice-Chancellor was concerned as to the precise nature and effect of orders nunc pro tunc, but he nevertheless saw his way clear, at least in the circumstances of that case, to order that his judgment be entered “as of the day when the argument terminated”[106]. He did so, nevertheless, in a case where no issue as to the actio personalis rule could arise and where it seems there was no suggestion of prejudice to any party. Indeed he made clear that in exercising his discretion certain factors were not to be ignored, in particular his conclusion that he did not “think that any injustice can accrue to anybody else in doing that, either as between different judgment creditors or persons having the benefit of judgments in the present state of law”.[107] He concluded[108]: “Therefore there is apparently no benefit or loss to accrue to anybody by the course being taken of antedating the judgment.” It may be that his Honour intended that last statement to refer to benefits or losses accruing to third parties, but his language was general and seemed consistent, at least, with common law authority. It is harder to be confident, with respect, that the Vice-Chancellor had correctly discerned the basis for antedating orders in the Court of Chancery. There was no doubt a practice, carefully recited in the footnotes to his judgment, of treating all decrees and orders, when passed and entered, as operating from the day of their pronouncement and that this applied notwithstanding the failure to comply with a General Order of 1691 requiring the entry of decrees and orders within a period of effectively twelve months.[109] Orders as of course could be obtained to ensure that the ultimate order spoke as at the time judgment had been delivered and the decree pronounced, and a good proportion of a few cases cited (as well as several others that I have looked at) were simply examples of the court giving leave after some years to enter decrees out of time and as of the day of judgment.
[105]Although, significantly, not in the last (7^th) edition in 1912.
[106]At 569.
[107]Ibid. He explained that formerly there may have been prejudice, but that judgments by that time could not be relied upon until they were actually registered, so far as priorities were concerned.
[108]Ibid.
[109]See at 567-568 and fn. (1).

The few other cases cited seem to speak of a power to antedate a judgment to the time when argument had concluded to overcome abatement and so as to make it unnecessary to take proceedings by way of revivor, in order to bring the proceedings to a conclusion. Apart from the Vice-Chancellor’s reference to the common law cases, to which I will return, there seems to have been no discussion of principle in the few cases where an order nunc pro tunc effectively made it speak from a date before judgment was delivered and before the suit had otherwise abated. In the relevant cases, Davies, Belsham, Collinson and Troup, such orders were made but no explanation was given except to the extent that the judges were following some earlier practice either in the common law courts or in the Courts of Chancery and Exchequer (on the equity side). Most weight seems to have been placed on Lord Eldon’s practice as exemplified in Davies, but that was said to depend, at least in part, on practice in the Court of Exchequer, but Jones v. Le David was not thought worthy of reporting except to the extent of a note in Palmer’s practice work relating to equity proceedings in that Court. In Collinson, however, the Master of the Rolls had preferred to place reliance on the common law practice as derived from Cumber v. Wane. Likewise Hall, V.-C. sought[110] in part to rely on the common law practice which he cited from Chitty’s Archbold[111], as expressed in the passage, already quoted, which commenced: “The Court will in general permit a judgment to be entered nunc pro tunc, where the signing etc.” But that, as I have already endeavoured to show, explicitly relates to entry and signing and does not suggest, nor had it been accepted, that a judgment might be antedated to a time before some decision on the merits, whether by verdict or otherwise, had been obtained at common law.
[110]At 566.
[111]10^th ed. p.1502; 12^th ed. p.1572: see para.[25] above.

The Vice-Chancellor appreciated the significance between a true antedating and the entry of orders otherwise nunc pro tunc, for the practice as of course in chancery had been to permit entry of judgment or decree back to the time it was pronounced, but that merely reflected the fact that the court had orally pronounced its decree at an earlier time and was seeking only to make the formalities of entry coincide with the date of pronouncement. The common law rule was more elaborate, and had been worked out in far greater detail, because of the various practices there relating to the taking of verdicts and the later obtaining of rules to set them aside (a kind of process by way of review or appeal on questions of law). That might fairly be said likewise to reflect an intent on the part of the common law courts to date judgments back to a time when the effective decision had been given, ordinarily by verdict of a jury, but also, as the practice books noted[112], in other cases back to what otherwise might be described as interlocutory orders of a kind which resolved the case in favour of one side or the other but which were likewise capable of review under the complex procedures of those times.
[112]See the works on common law practice already cited, passim.

The complexities of the issue relating to interest arise out of the nature of the claim and the way in which the plaintiff sought to estimate his damages and which the trial judge thought to be the appropriate measure of damages for losses over and above the return of the principal sums invested with the appellant defendant. No appeal was brought against the damages award and thus there is no reason to query its propriety, though others may have gone about the actual calculations in a slightly different way. Some brief detail of what in fact were the bases for these awards of damages must be set out.

The first sum advanced for the purpose of investment was the sum of $101,818.54 paid to the appellant in late October 1997 to buy and sell ASX listed securities for the plaintiff upon the various representations which the judge found to be made out. Secondly in November 1997 the plaintiff provided the brokers with $195,000 for the purchase of 100,000 Telstra shares which were bought on 17 November that year and which were to be used as a foundation to buy and sell listed securities for the profit of the plaintiff. Each of those sums were lost and indisputably had to be repaid to the plaintiff. That those two sums should bear interest from the date the action commenced to the date of judgment has never been disputed.

Different calculations may require different consideration of each of the two investments. As to the first sum of $101,818.54, the learned judge found that the value of the commercial opportunities lost as a result of negligent representations and seemingly other breaches of duty amounted to $50,000 over a period of nearly three years from October 1997 to 18 August 2000. His Honour fixed on that sum, not as a precise calculation, but as broadly representing what the appellant should have produced if it had not acted negligently or otherwise in breach of its duty to the plaintiff. It is unnecessary to examine the detail further as carefully analysed by the learned judge, but it may be stated broadly that the lost opportunity seen by his Honour was that of the plaintiff’s capacity to continue to invest the sum of $100,000 over the relevant period which was judged in this case by reference to a consideration of movements of the stock market in particular classes of securities over the period, but making some allowance for contingencies. This figure was reached by the judge in respect of the various causes of action pleaded but in each case the compensation he thought appropriate for the loss of the relevant commercial opportunities was fixed at $50,000 for the period to August 2000.

A slightly different approach was taken to the claim arising out of the deposit of $195,000 with the appellant for the purpose of purchasing the Telstra shares. Here the Telstra shares were to be used as the basis for some vigorous speculative trading on the market which was promised to produce significant profits. The loss was contended to be as high as nearly $2.8M. by the plaintiff, at least on one basis formulated by an expert called on his behalf. The judge did not accept that calculation but equally he did not accept the defendant’s contentions that there were no relevant losses of opportunities. He concluded that there was “a very valuable opportunity at the time the Telstra shares were sold [as they were, early in the piece] to embark on a margin-lending program to build up a substantial Telstra and bluechip portfolio”. This also required extended consideration by the judge but, despite the difficulties, and taking what he said was a “cautious” approach, he found that there were opportunities lost, although, having regard to the nature of the proposed dealings at high risk, there had to be some significant discounting. In the end the damages were again a broad brush figure which the judge estimated to be $500,000.[228]
[228]There were some inconsistent statements in the judge’s summary of findings at [587], but the analysis set out here uses the figures which must have formed the basis of the ultimate judgment and there seems to have been little dispute on the appeal as to the final figures adopted by the judge for the purpose of estimating the total award of damages.

The essential point taken by the appellant in relation to the judge’s finding on interest was that it involved a doubling-up of compensation by way of damages in that the primary sums misapplied ($101,818 and $195,000) were the subject of an award of statutory interest from issue of writ to 19 August 2000 (and beyond to 16 October 2001) while at the same time damages were awarded for loss of opportunities in respect of the same period. Substantially this was the argument put to the learned trial judge which was rejected in somewhat peremptory terms. While there is no cause to criticise the judge for failing to set out the various components of the award of damages in detail, for he had already done that in his primary judgment, there was at this stage relatively little analysis of the nature of the two awards. In substance (see his judgment at paras.[17] to [22]) his Honour accepted that the sum of $50,000 “reflected the lost investment opportunity in respect of the relevant period of nearly three years”[229]. Likewise he said that the award of $500,000 was for similar lost investment opportunities arising from the purchase of the Telstra shares and their potential reinvestment in accordance with the plaintiff’s instructions. The appellant-defendant had submitted to the judge that a further award of statutory interest would be “the equivalent of awarding interest on interest which is not authorised by the Act”. It seems also that the defendant had submitted that interest should not run from the commencement of the writ but “from the date of the judgment”. The latter is clearly untenable in that it confuses the right to claim interest under s.60 of the Supreme Court Act 1986 (“the Act” for the purposes of this part of the judgment) with the right to interest on judgment under s.101 of the Act, since the latter right is one which flows in favour of every judgment creditor and is not within the direct power of the Court to award or vary.
[229]That closing date was there said to be “November 2000”, but the calculations seem otherwise to have been made up to August 2000, so that I would treat the date so stated as a mere oversight.

In response to the appellant-defendant’s main submission, as again on this appeal, the plaintiff had submitted that the defendant assumed that there was no distinction between the award of statutory interest and an award of damages for lost commercial opportunity, citing the well known passage from the judgment of Barwick, C.J. in Ruby v. Marsh[230] where his Honour said that the purpose of an award of statutory interest was to put the successful plaintiff “in the position in which he would have been had the amount of the verdict been paid to him at the commencement of the action”. His Honour accepted the plaintiff’s contention, stating that statutory interest was intended to compensate a plaintiff for the fact that he was entitled to damages which were subsequently found and awarded to him, so that there was no doubling-up of compensation.
[230](1975) 132 C.L.R. 642 at 652.

As it presented its argument to this Court, the appellant, while accepting that authority[231] clearly had laid down that successful plaintiffs were ordinarily entitled to interest from the date of commencement of proceedings under s.60 of the Act and that the burden rested on it to show good cause to the contrary, argued that the object in every case was to compensate the plaintiff for being kept out of his money.[232] In this case the secondary damages for loss of opportunity, so it was argued, compensated the plaintiff a second time for that loss, if interest were paid on the principal sums ordered to be repaid. Accepting the conventional constraints the appellant’s argument was summarised in this way:

“Insofar as the judge determined that there should be damages for lost opportunities, he did so having regard to how the lost moneys would otherwise have grown in value but for the negligence, breach of contract or misleading or deceptive conduct of the defendant. Therefore in the circumstances interest pursuant to s.60 should not have been awarded on each such sum of money as the value of the opportunity lost until the date of identification of that value.”

[231]See, e.g., Clarke v. Foodland Stores Pty. Ltd. [1993] 2 V.R. 382 esp. at 394. It is unnecessary to canvass each of the other authorities on this issue.

[232]Citing MBP (S.A.) Pty. Ltd. v. Gogic (1991) 171 C.L.R. 657.

To this the respondent also relied on the passage in Clarke v. Foodland[233], referring to s.58 of the Act, where it was said, as has been said on many other occasions, that the object of the section “is to compensate the plaintiff for being kept out of his money”. But one must be wary of the reason why that statement has been repeated, for it has rarely been in circumstances where the damages have included damages for lost opportunity. One must also notice that the full proposition in Clarke[234] was that the object to compensate plaintiffs for being kept out of their money, “although not because he has on that account lost the opportunity to invest it, but because he has thereby been deprived of its use”. The respondent said that there was no necessary equivalence between interest on the principal sums and lost opportunity damages.
[233]At 396. As to the relevant aspect of s.60 the Full Court seemed to accept that decisions on that section were applicable to s.58: see, e.g. at 396.
[234]Ibid.

Consequently in this area of the law one should be cautious about incanting general propositions without at the same time properly considering how they work in practice. If two heads of damages are properly awarded (as one assumes here, for there has been no appeal against those awards), then they ordinarily represent different losses which have been suffered by the plaintiff by reason of the defendant’s breach of its obligations to the plaintiff. Merely because a sum has been wrongfully withheld it does not follow in the ordinary case that damages for lost opportunity should be, or normally are, awarded. There must have been some other aspect of the defendant’s conduct towards the plaintiff which will justify the additional award of that kind of damages.

There is a further reason for being cautious about the generalisations frequently uttered as to the purpose of awarding interest on damages or the like. To say that the successful plaintiff should be compensated “for being kept out of his money” is often used to emphasise that the relevant interest rate, if it is not controlled by the Penalty Interest Rates Act 1983 (the “Penalty Act”), is designed to put plaintiffs back in the position where they would have been if not deprived, for then, as I have just noted, they are to be compensated for being deprived of the use of that money sum, howsoever it might be used by way of investment or otherwise. It is so expressed because from time to time successful plaintiffs have sought to be compensated for the fact that they are obliged to pay interest on their overdrafts or other borrowings. Thus, so it has been asserted from time to time, they might obtain full compensation for the burden suffered by them when unable to pay out or reduce pro tanto their borrowings by application of the second limb in Hadley v. Baxendale[235]. Indeed, the possibility that a court may properly include the latter in an award of damages in contract, apart altogether from any statutory right, was recognised by the High Court in Hungerfords v. Walker[236]. In the present case no such claim was advanced before this Court.
[235](1854) 9 Ex. 341.
[236](1989) 171 C.L.R. 125.

Again, in claims for interest under ss.58 to 60 of the Act, the principles so far stated with respect to interest under similar provisions has been generally recognised as requiring no more than compensation for being kept out of the moneys claimed but, so far as Victoria is concerned, the High Court has at least recognised that different considerations may well apply in this State because of the specific provisions contained in the Penalty Act: see Grincelis v. House[237]. Although I do not have sufficient knowledge to speak with certainty as to every other state and territory provision, it would seem that over the years since 1983 the Victorian rate so prescribed has been higher than that applicable in other states and territories and reflects a policy that interest otherwise payable pursuant to statutory provisions, whether under the Act or elsewhere, should, where appropriate, do more than merely place the plaintiff in a position formerly held before the relevant claim was made. Again, speaking in the broadest of terms, the prescribed rate has usually been well in advance of what might be earned by its investment on the money market on a conservative basis, whether at short term or long term rates, and, more often than not, is in excess of what might be expected to be obtained by way of return on other conventional investments. On the other hand, it has usually been some points below the current mortgage and overdraft rates. The Penalty Act’s object, as I perceive it, has been in part to encourage the early settlement of litigation (cf. Grincelis at 329), but it may be seen to have the broader purpose of ensuring that recalcitrant defendants, owing money or otherwise subject to an award of damages, do not withhold payments properly sought by plaintiffs upon the selfish basis that in the meantime they may without risk invest moneys so owed in a manner which will given them not merely sufficient to repay successful plaintiffs with interest under the Act but with an element of profit which might fairly be perceived as wrongfully obtained. This has ordinarily given Victorian courts a degree of flexibility in relation to the payment of interest which may not exist in other jurisdictions where the relevant rates are only broadly sufficient to recompense plaintiffs for being kept out of their money while their actions are fought or delayed, as frequently used to occur.
[237](2000) 201 C.L.R. 321 at 328-329 para.[16].

Nevertheless the pattern in Victoria has been that, unless good cause be shown, successful plaintiffs are ordinarily awarded interest at the rate prescribed under the Penalty Act without too fine a regard for these distinctions and I would assume that the plaintiff in the present case is entitled, at the least, to interest on the moneys invested and ordered to be repaid, although that would bring in a sum in excess of what it might have been invested at, as the quotation from Clarke suggests. The seemingly more difficult issue is whether the rates prescribed by the Penalty Act should be awarded on top of the damages reflecting the various loss of opportunities which formed a significant part of the primary judgment sum awarded to the plaintiff. Here again I would see no reason ordinarily to deprive a party of interest at the rates prescribed unless it was unfair to do so and in particular unless it could be shown that there was in effect double counting by awarding interest on those damages.

Superficially, if a form of quasi-investment resulting from the plaintiff being kept out of its money is notionally effected by reason of an order of interest on the two invested sums, it might be thought unfair to impose interest on the assumed product of the investments agreed to be carried out by the appellant as a stockbroker. But can it be said to be unfair to require some interest to be paid on damages which reflect that the plaintiff was deprived of the benefit of the use of the money in the past which was not applied by the appellant in conformity with its agreement or representations, by reason of its negligent misstatements, let alone its misleading or deceptive conduct? The damages awarded for losses of opportunities, as found by the learned judge and not presently challenged, ought likewise to have been paid to the plaintiff at some time in the past. As I have said, I see no reason to deny the plaintiff its interest on the primary sums, for that interest awarded should reflect more than the mere potential for reinvestment, especially having regard to the nature of the legislation in this State as reflected in the Penalty Act. Again, having regard to the relevant purposes of the legislation, both in the Act and in the Penalty Act, there should prima facie be a right to interest on damages awarded for the various losses of opportunities, for certainly that has not been received, in that it has not been paid over or accounted for in favour of the plaintiff at an appropriate time. Of course the sums were to be invested and further reinvested and the benefits by way of losses of profits reflected in effect a compounding of each investment from year to year, with no sum being subtracted or returned to the plaintiff, at least for the first period of investment. As I understand it, the damages so awarded reflected what may have been earned according to the promised or agreed mode of investment in each case. If that be so, then there is a tenable argument to the effect that the losses compensated were not losses which existed from the first moment of breach, or from the moment the action was begun. It is not dissimilar to an award for past economic loss in conventional personal injuries cases, where it is understood in practice that the various sums by way of lost wages (in the ordinary case) would have been received only from week to week, fortnight to fortnight, month to month, so that wages lost and payable up to the time of trial are ordinarily perceived as being paid as and when they would ordinarily have been payable, in other words, some payable within weeks or months of the original accident and others within weeks or months of the trial. In practice, as I understand it, a broad-brush calculation is made by halving the relevant interest at rates prescribed under the Penalty Act[238] or by using a conventional percentage which in recent years has been four per centum.[239]
[238]See Luntz at 609-611 (paras.11.3.17-11.3.18).
[239]See, e.g. G.E.F. Packaging Services P/L v. Turner (C.A. unrep. 5 September 1995) at pp.2-4, 9 per Brooking, J.A.

In all the circumstances, therefore, here one should not treat the whole of the lost profits as having been earned from the moment the first investment began, but, subject to that, I see no reason why interest should not be paid on the damages awarded for those lost opportunities. In the present case the calculation is difficult but covers a relatively short period. Moreover, in contrast to past wages, the profits may be seen to have been reinvested from time to time to produce the awarded sum for lost opportunities, albeit here the calculation of the judge terminated at 16 August 2000. The appellant’s anterior point was that the invested sums should be deemed to have been required for the unconsummated investment program. As already pointed out, however, the two heads of recovery are different and the right to interest on the money sums should not be subsumed into the right to interest on the damages award for breach of duty and the like. The outcome seems consistent with that which occurred in Sellars v. Adelaide Petroleum N.L.[240], although the issue is not reported as having been argued at any level.
[240](1990) 179 C.L.R. 332.

I would therefore award interest by way of damages for the whole period since the action was commenced with respect to the orders for repayment of the principal moneys invested, but I would award interest on the damages for lost opportunities only as from 18 August 2000. To break up the relevant sum by reference to the time at which those opportunities for profit were lost is not here appropriate for they cannot be treated as payable from week to week, as with ordinary wages, and one may assume, from the nature of the claim, that larger sums should have been earned by way of profits in the later part of the period rather than in the earlier part. As a matter of discretion, therefore, bearing in mind the rate

imposed by the Penalty Act, I would choose the date treated by the judge as the effective concluding date for the earning of those profits which was some two years after the action commenced. That in fairness would adequately penalise the appellant’s failure to pay, as well as making some temporal allowance for the period during which the profits would have been earned, but which cannot be identified with any degree of precision.

I would therefore allow the appeal on the issue of damages to that extent and ask that counsel bring in new calculations, but only after argument has been heard on the application of Nicol as to the date from which any new order should operate. Curiously, if not perversely, this might be an appropriate case for deeming the making of this Court’s final judgment to be at the time at which the decision was originally made (nunc pro tunc), that is in April 2002, but not at the date at which argument concluded in October 2001. Again, that regrettably will have to be a matter for argument but the Court’s delay in this particular case may justify an order out of the usual.

The appeal, therefore, should be allowed on both principal issues argued, but, on the interest issue, only to a limited extent. Judgment should not have been antedated to a date before the plaintiff’s death, so that damages ought to have been assessed in conformity with s.29 of the Administration and Probate Act. In consequence the quantum of damages awarded should be reduced by the amount of the judge’s award of punitive damages, i.e., by $260,000. As a further consequence, both of that finding and of my conclusions as to the respondent’s right to interest, the sums to be included for damages by way of interest will have to be recalculated, but only after hearing counsel as to how that calculation should be made.

BUCHANAN, J.A:

I agree with Ormiston, J.A.

EAMES, J.A.:

I agree with Ormiston, J.A.

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[2005] VSCA 53

18 March 2005