Mathews v Telstra Corporation

[1999] HCATrans 404

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B55 of 1998

B e t w e e n -

RUSSELL GORDON HAIG MATHEWS

Applicant

and

TELSTRA CORPORATION

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 2.16 PM

Copyright in the High Court of Australia

MR R.G.H. MATHEWS appeared in person.

MR K.A. BARLOW:   If it please the Court, I appear for the respondent.  (instructed by Mallesons Stephen Jaques)

GUMMOW J:   Mr Mathews, I think Justice Callinan wishes to address some remarks to you first.

CALLINAN J:   Mr Mathews, I think you have already been informed that I have some shares in Telstra Corporation.

MR MATHEWS:   Yes, your Honour.  That raises no problem with me.

CALLINAN J:   Nor with Mr Barlow, I understand; is that right?

MR MATHEWS:   I understand that too, your Honour.  That is correct.

GUMMOW J:   Please proceed, Mr Mathews.

MR MATHEWS:   Thank you, your Honours.  I will be brief.  After all, my address now is only supplementary to my written submissions.  This matter arises – I believe it can be looked at as being something new or a variation on the exemplary damages at present.  It arises because of technology allowing by one simple decision of, in this case, Telstra to change the rate at which a call is being charged during the call because it can do that and it decided that it would do that without telling anyone.  So in that way the charge for a call which overlapped the 8 am weekday call time changed from what was the situation previously when, once the call had started, the same rate would be applicable for the whole duration of the call whether it was all in the cheap rate or a large part of it in the more expensive rate.

GUMMOW J:   Granted all of that for the moment, Mr Mathews, for the purposes of argument, the High Court normally does not intervene in cases which arise at an early stage in this sort of case where there is a strike‑out of a pleading with the possibility of amending or commending again.  We really only usually interfere when there has been a trial and the case has gone forward in a final form, as it were – in the best possible form.

MR MATHEWS:   Yes, your Honour, I understand.  In this case this action is still alive.  It has been transferred to the Magistrates Court.  What would therefore happen is that I have to proceed through the action or the court proceeds through the action in the Magistrates Court and then, regardless of what happens in the Magistrates Court, I will be appealing the decision because I will not be awarded the exemplary damages which forms a majority of my claim.  So it would have been the same thing.  I would have still been appealing to the High Court but it would have been totally pointless going to the Magistrates Court, would have been my view.

GUMMOW J:   These exemplary damages you seek, can you explain just what the basis is for them and whose damages they are – yours or other people’s.

MR MATHEWS:   Yes, your Honour.  I take it that they are my damages because the nature of the tort committed against me is such that I am likely to be subject to this type of tortious action so readily because it is so profitable to the wrongdoer.  In the case of Telstra, I have shown there examples where they can make so much money and all I can do is try and redress the small amount which I have lost.  There is no impediment upon a wrongdoer in this case where they have a large client base such as Telstra, which is now possible with technology.  There is no impediment upon them not to do the wrong thing and in fact it would be effectively a cost to them not to do something of this nature when they can.  That was to change a rate at 8 am on existing calls.  They would have known how many calls are likely to be in progress at 8 am in the morning and how much they could potentially gain by this one change to their software programming.

So the exemplary damages, it shows a total contempt towards me for them to do this.  It may be because the technology has changed that there has to be a remedy in the common law for this.  One could say the remedy is of the ACCC, but that is not a common law remedy.  I am sure the common law should have a remedy for this, your Honour.

GUMMOW J:   Is there anything else you wish to add?

MR MATHEWS:   I am unrepresented, your Honour, and that has caused me some difficulties which have been highlighted in the judgments and could have contributed to the wrong mischaracterisation being placed upon my claim.  But it is for damages done to me because of the nature of the damages.  To merely pay me my losses is no detriment to a wrongdoer to commit this type of wrong again.  I have nothing further to add, your Honour, unless you have something to ask me.

GUMMOW J:   No.  Thank you, Mr Mathews.

MR MATHEWS:   Thank you, your Honour.

GUMMOW J:   Mr Barlow, what is the monetary limit at the moment, as you understand it, of the Magistrates Court’s jurisdiction in Queensland?

MR BARLOW:   $50,000, your Honour.

GUMMOW J:   We do not need to call on you any further, Mr Barlow.

The applicant, Mr Mathews, seeks leave to appeal against the decision of the Court of Appeal of Queensland, dismissing an appeal against an order by a judge of the District Court and striking out a claim in the applicant’s pleadings for exemplary damages.  Such an interlocutory order rarely attracts the grant of special leave to appeal to this Court.  The applicant is after all entitled to re-plead his claim if he can and so wishes.

Accordingly, special leave to appeal should be refused.  However, we should make it clear that we do not understand that the orders of the Court of Appeal of Queensland would deny to Mr Mathews, on his claim as remitted to the Magistrates Court, a claim by him up to the jurisdictional limit of that court in respect of exemplary damages suffered by him.  But, as indicated, special leave is refused with costs.

AT 2.27 PM THE MATTER WAS CONCLUDED