Mathews v Telstra Corporation Ltd

[1998] QCA 407

IN THE COURT OF APPEAL	[1998] QCA 407
SUPREME COURT OF QUEENSLAND

Appeal No. 9697 of 1998

Brisbane

[Mathews v. Telstra]

BETWEEN:

RUSSELL GORDON HAIG MATHEWS

(Plaintiff) Applicant

AND:

TELSTRA CORPORATION LIMITED

(ACN 051 775 556)

(Defendant)	Respondent
Pincus J.A. Thomas J.A. White J.

Judgment delivered 4 December 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL PROCEDURE - application for leave to appeal against District
Court order striking out parts of a plaint - claim for $840 for overcharged phone calls and $249,000 exemplary damages - claim based on unconscionable conduct and claim for exemplary damages struck out - whether plaintiff can recover exemplary damages for losses suffered by others whom the plaintiff does not represent.
Counsel:	Applicant appeared on his own behalf. Mr K A Barlow appeared for the respondent.
Solicitors:	Applicant appeared on his own behalf. Mallesons Stephen Jaques for the respondent.
Hearing Date:	30 November 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9697 of 1998

Brisbane

Before Pincus J.A.
Thomas J.A.
White J.

[Mathews v. Telstra]

BETWEEN:

RUSSELL GORDON HAIG MATHEWS

(Plaintiff) Applicant

AND:

TELSTRA CORPORATION LIMITED

(ACN 051 775 556)

(Defendant) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 4 December 1998

1. This is an application for leave to appeal against an order of the District Court striking out

   certain parts of a plaint filed in that Court. The claim made by the plaint is for $249,840 and it is

   in essence based on an assertion that the plaintiff, now applicant, was overcharged $840 for phone

   calls. The difference between the amount of the alleged overcharge and the amount claimed consists

   of a claim for exemplary damages in the sum of $249,000. The parts of the pleading which have

   been struck out relate principally to two matters. First, they relate to assertions that the defendant

   Telstra, now respondent, acted unconscionably in a morally reprehensible manner; secondly, they

   relate to the claim for exemplary damages. The judge’s reasons for striking out these parts of the

   claim were as to unconscionable conduct, that his Honour took the view that the matters pleaded did not sufficiently raise a case of unconscionability on the part of the respondent; as to exemplary

   damages, the judge held that the plaintiff’s case was that exemplary damages should be awarded

   because of the defendant’s conduct towards persons other than himself and that it therefore could

   not succeed.

2. The task of the courts in dealing with pleadings which are not professionally drawn is not

   always an easy one. On the one hand, it is undesirable and can be unfair to the pleader’s opponent

   to bring on trials of issues which are inadequately defined. On the other hand, one could not

   reasonably expect every unrepresented litigant to produce a pleading which is of a proper standard.

   In the present case, the respondent applied to strike out the pleading completely and, in the

   circumstances, there would have been something to be said for that course. What the judge did was

   to reject that application and make an attempt to trim the pleading so as to include in it only the

   points which could reasonably be argued. This Court does not undertake routinely to supervise the

   exercise of the District Court’s power in respect of the form of pleadings. It is not able to be

   suggested, in the present case, that the judge’s approach involved any manifest legal error or that

   it is likely to produce injustice.

3. With respect to exemplary damages, the basis of the claim made in the pleading is not as

   clear as it might be; but the judge was justified in proceeding on the basis that the exemplary

   damages claimed are intended to deprive the respondent of the revenue it gained by overcharging

   its customers throughout Australia in the fashion of which the applicant complains. It is not the

   function of exemplary damages to award to an individual plaintiff, not only his own loss, but all

   similar losses suffered by others who might have claimed. The claim based on unconscionable conduct appears to me to be founded on s. 51AA of the Trade Practices Act 1974. The applicant

   has selected the factor mentioned in s. 51AB(2)(a):

   "the relative strengths of the bargaining positions of the corporation and the

   consumer".

   As the primary judge pointed out, that matter is not, in the plaint, related to the particular

   circumstances pleaded; there is nothing in the pleading to suggest that the applicant complains of

   the way in which the respondent bargained with him.

4. The applicant argued his case before us orally, but in doing so simply emphasised the points

   made in his affidavit of 20 October 1998 which is in the record. The main points made there are

   that exemplary damages can be awarded in the tort of deceit and that it is very improbable that all

   the subscribers who have been overcharged would make their own claim. The former point does

   not assist the applicant, for the difficulty about the exemplary damages claim is the content of the

   claim, not the alleged wrong to which it is sought to be attached. As to the unlikelihood of all those

   wronged making their own claim, it is unnecessary to elaborate further the point made above, that

   there is no principle of law entitling a plaintiff to recover as exemplary damages losses suffered by

   others whom the plaintiff does not represent.

5. The primary judge’s reasons dealt with other aspects of the pleading than the two principal

   points which have been discussed above; however, none of those other aspects is of sufficient

   significance to warrant a grant of leave to appeal.

6. I would dismiss the application for leave, with costs.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

   Appeal No. 9697 of 1998

   Brisbane

Before Pincus JA
Thomas JA
White J

[Mathews v Telstra]

BETWEEN:

RUSSELL GORDON HAIG MATHEWS

(Plaintiff) Applicant

AND:

TELSTRA CORPORATION LIMITED ACN 051 775 556

(Defendant) Respondent

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 4 December 1998

1. I agree with the reasons of Pincus JA and with the orders which he proposes.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

   Appeal No. 9697 of 1998

   Brisbane

Before Pincus JA
Thomas JA
White J

[Mathews v Telstra]

BETWEEN:

RUSSELL GORDON HAIG MATHEWS

(Plaintiff) Applicant

AND:

TELSTRA CORPORATION LIMITED ACN 051 775 556

(Defendant) Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 4 December 1998

1. I agree with Pincus JA that the application for leave to appeal should be dismissed for the

   reasons which he gives.

2. As his Honour mentions, the applicant relied upon his affidavit filed on 20 October 1998

   in which he complains that the decision of French J in Musca v Astle Corporation Pty Ltd (1988)

   Aust Torts Reports 80-171 being directly on point with respect to exemplary damages ought to

   have been made available to the learned judge below and should guide the outcome of this application. In that case his Honour concluded that exemplary damages might be awarded in

   Australia in an action in deceit, a conclusion which was not then governed by binding or persuasive

   authority. His Honour’s statements of legal principle do not assist the applicant because exemplary

   damages are directed to the contumelious disregard of a plaintiff’s rights and not other possible

   plaintiffs’ rights which is the basis of the applicant’s claim which was recognised by his Honour

   below and for that reason struck out.

3. Neither were there any facts pleaded which would justify the retention of a claim for

   aggravated damages.