McGrath v Geraldton Meat Exports Pty Ltd - [2005] WADC 43

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: McGRATH -v- GERALDTON MEAT EXPORTS PTY LTD [2005] WADC 43

CORAM: EATON DCJ

HEARD: 20 DECEMBER 2004

DELIVERED : 11 MARCH 2005

FILE NO/S: CIV 268 of 2000

BETWEEN: LEONIE McGRATH
Plaintiff (Respondent)
AND
GERALDTON MEAT EXPORTS PTY LTD
Defendant (Appellant)

ON APPEAL FROM:
For File No              :  CIV 268 of 2000
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY REGISTRAR HARMAN
File No  :CIV 268 of 2000

Catchwords:

Appeal from the decision of a deputy registrar - Exemplary or punitive damages (nature of) - Amendment of Statement of Claim following redemption of claim for compensatory damages

Legislation:

Occupiers' Liability Act 1985

Rules of the Supreme Court 1971

Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff (Respondent) : Mr S Melville
Defendant (Appellant) : Mr M W Schwikkard

Solicitors:

Plaintiff (Respondent) : Chapmans
Defendant (Appellant) : Jackson McDonald

Case(s) referred to in judgment(s):

Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186
Atkinson v Fitzwalter [1987] 1 All ER 483
Cousins v Wilson [1994] 1 NZLR 463
Donsellar v Donsellar [1982] 1 NZLR 97
Fatimi Pty Ltd v Bryant & Ors [2004] NSWCA 140
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Gray v Motor Accident Commission [1998] 196 CLR 1
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Port Stephens Shire Council & Anor v Tellamist Pty Ltd [2004] NSWCA 353
Rookes v Barnard [1964] AC 1129
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448

Case(s) also cited:
Pollack v Volpato [1973] 1 NSWLR 653
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118

EATON DCJ: On 4 February 2000 the plaintiff filed a writ of summons in this Court seeking, by way of an indorsement of claim, damages for personal injuries caused to her by the defendant in or about June 1998. She eventually filed a statement of claim purporting to found her cause of action in negligence, breach of contract and breach of statutory duty. On 30 August 2000 the defendant filed a defence and counterclaim.
By an agreement dated 16 November 2001 made between the plaintiff and the defendant intended to be recorded pursuant to s 76 of the Workers' Compensation and Rehabilitation Act 1981 the plaintiff's claims against the defendant in respect of an injury suffered on 2 June 1998 were redeemed on the basis that the defendant would pay to the plaintiff and that she would accept a lump sum of $50,000. The nature of the disability described was Q fever effecting the whole body and "post Q fever related symptoms to the whole body." The agreement recorded the weekly payments and expenses at that point received by the plaintiff from the defendant. It provided further that the defendant:
"…hereby releases and forever discharges the employer from all claims and demands which the worker now has or, but for the execution of this agreement, could or might have had against the employer under the Act in any respect to the disability to the worker referred to in this Agreement."
Both parties to the agreement were subsequently notified by written notice dated 14 December 2001 by the Director of Conciliation and Review that the agreement had been recorded under s 76 of the Workers' Compensation and Rehabilitation Act 1981.
On 6 June 2003 the defendant filed an application for summary judgment pursuant to O 16, r 1 of the Rules of the Supreme Court based on the proposition, in the light of the redemption of her claim in accordance with the agreement referred to in the preceding paragraph, that the plaintiff had no entitlement to damages from the defendant.
The application was heard by Deputy Registrar Harman on 5 September 2003. He delivered judgment on 29 October 2003. It appears that the plaintiff had accepted that the only basis on which the claim could survive the redemption was if the cause of action under the Occupiers Liability Act 1985 survived. As I read his judgment the learned Deputy Registrar indicated that in his opinion it did not. It appears that, in the course of submissions made by the plaintiff an alternative case was advanced based on the proposition that the plaintiff would withdraw the concession made in relation to other causes of action and amend the statement of claim in order to plead exemplary or punitive damages. It appears that that course was pursued. On 8 January 2004 the plaintiff filed a minute of proposed Amended Statement of Claim seeking, by way of relief, exemplary and punitive damages.
It appears that on 19 February 2004 Deputy Registrar Harman ordered that the plaintiff have leave to amend her statement of claim in terms of the minute of proposed Amended Statement of Claim and that the defendant's application for summary judgment pursuant to O 16, r 1 of the Rules of the Supreme Court filed 9 June 2003 be dismissed.
By Notice of Appeal filed 20 February 2004 the defendant appeals against those orders seeking orders that the plaintiff be refused leave to amend her statement of claim in terms of the minute of proposed Amended Statement of Claim filed 8 January 2004 and that the defendant have summary judgment in the matter.
The appeal was argued before me on 20 December 2004. In her amended pleading the plaintiff alleges that in the course of her employment with the defendant between February 1998 and 2 June 1998 she was exposed to an organism which causes Q fever and that she contracted Q fever and developed and suffered the symptoms of Q fever from about 2 June 1998. She argues that that event was caused by the negligence of the defendant and particularises the alleged negligence. Paragraph 8 asserts a further or alternative cause of action under either the Occupiers Liability Act 1985 or the Occupational Safety and Health Act 1984 and/or its regulations. The statement of claim then particularises the alleged breach of statutory duty in each case. The claim is for exemplary and punitive damages only.
By its Re‑amended Defence filed 29 May 2004 the defendant pleads that at all material times it was an employer of the plaintiff for the purposes of Part IV Division 2 of the Workers' Compensation and Rehabilitation Act1981 and that in or about August 1998 the plaintiff made a claim for compensation pursuant to the provisions of the Act in relation to Q fever allegedly contracted by her. The defendant then recites the redemption agreement and asserts that by virtue of that agreement the plaintiff is precluded from maintaining or prosecuting a claim for damages against the defendant in relation to the injuries pleaded in the plaintiff's statement of claim.
In her amended statement of claim filed 12 May 2004, in support her claim for punitive and/or exemplary damages the plaintiff asserted, in par 16 and par 17 that the conduct or behaviour of the defendant giving rise to the plaintiff contracting Q fever was in wanton and/or contumelious disregard of the plaintiff's rights and its own obligations.
In its re‑amended defence filed 28 May 2004 the defendant denies par 16 and par 17 of the plaintiff's amended statement of claim and denies, in particular, that it acted in a wanton and/or contumelious disregard of the plaintiff's rights and of its own obligations.
Section 67 of the Workers' Compensation and Rehabilitation Act 1981 provides that the worker and the employer may agree to redemption of liability for incapacity if they agree to the amount of a lump sum to be paid and a memorandum of the agreement is registered under Division 7. That section provides further that where an agreement for redemption of liability for incapacity is made and registered under Division 7 the worker is not entitled to further compensation.
As mentioned earlier the agreement dated 16 November 2001 made between the plaintiff and the defendant provided that the plaintiff released and forever discharged the defendant from:
"…all claims and demands which the worker now has or, but for the execution of this agreement, could or might have had against the employer under the Act in any respect to the disability to the worker referred to in this agreement."
It follows that the agreement is a bar to all claims and demands which the plaintiff might have against the employer under the Act. The Act is an Act to provide for compensation of workers who suffer a disability. It follows that by reason of s 67 of the Act and the agreement the plaintiff is not entitled to further compensation for the disability from which the incapacity resulted.
Part IV Division 2 of the Workers' Compensation and Rehabilitation Act1981 provides for constraints on awards of common law damages and applies to the awarding of damages against an employer independently of the Workers' Compensation and Rehabilitation Act 1981 in respect of a disability suffered by a worker if the disability was caused by the negligence or other tort of the worker's employer and compensation has been paid or is payable in respect of the disability under the Act. It provides that the Division applies even if damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action. If the Division applies a court is not to award damages to a person contrary to the provisions of the Division. Section 93B(3)(b) provides that the Division does not apply to the awarding of exemplary or punitive damages. It follows that the Act imposes no constraints upon the awarding of exemplary or punitive damages at common law. I conclude that if the plaintiff can maintain an independent cause of action for exemplary or punitive damages at common law then the agreement dated 16 November 2001 which might be pleaded as a bar to any claim by the worker against the employer arising under the Act, is no bar to a claim for exemplary or punitive damages.
It appeared to be common ground as between counsel before me that the plaintiff did not have a claim for compensatory damages at common law, she having redeemed her workers' compensation claim. Counsel for the defendant conceded, for the purpose of the argument before me, that it was possible for a plaintiff to maintain a claim for exemplary or punitive damages pursuant to Section 93B of the Workers' Compensation and Rehabilitation Act notwithstanding that the plaintiff's right to claim compensatory damages had been extinguished. I responded by querying whether that was correct in law. Counsel for the defendant indicated that his client would abide my decision in that regard.
It would appear, having regard to the terms of the Workers' Compensation and Rehabilitation Act 1981 that Parliament contemplated that there might well be a claim for exemplary or punitive damages independently of damages in respect of a disability suffered by a worker caused by the negligence or other tort of the worker's employer or damages sought to be recovered in an action for breach of contract or other action. No doubt Parliament contemplated that an action might be commenced seeking both compensatory damages and punitive or exemplary damages leading to a circumstance, in the event of redemption of the compensatory damages claim, where the claim for exemplary or punitive damages might still be litigated notwithstanding cessation of the claim for compensatory damages. In my view that scenario begs the questions of whether a claim for compensatory or punitive damages may be mounted in the absence of a claim for compensatory damages and whether, accompanied by a claim for compensatory damages, there could be an assessment of exemplary or punitive damages when there has been no assessment of compensatory damages.
The situation before me is as already described. The writ filed on 4 February 2000 sought damages for personal injuries caused to the plaintiff. The subsequent statement of claim filed claimed damages particularised in terms of loss of amenities, treatment, loss of earnings and earning capacity and special damage with no mention of exemplary or punitive damages. As mentioned the agreement dated 16 November 2001 was recorded under s 76 of the Workers' Compensation and Rehabilitation Act 1981 on 14 December 2001. In consequence the plaintiff forfeited any entitlement she might then have had to pursue common law damages under s 93D of the Act in respect of the injury referred to in the agreement.
It appears that the action in this Court might then have been brought to an end. It is the case, however, that the plaintiff attempted to pursue the action against the defendant in the latter's capacity as an occupier under the Occupiers Liability Act 1985. In the light of that stance the defendant made application for summary judgment. As is evident from the judgment of Deputy Registrar Harman, on the hearing of the application for summary judgment the plaintiff put what she described as "an alternative case" whereby she would amend the statement of claim to plead a claim for exemplary or punitive damages. On 19 February 2004 Deputy Registrar Harman granted leave to amend in those terms and dismissed the application for summary judgment.
The 9^thed of the "Law of Torts" by Professor J G Fleming (at p 271) referred to exemplary damages in the following passage:
"Unlike compensatory damages so far considered, 'exemplary or punitive' damages focus not on injury to the plaintiff but on outrageous conduct of the defendant, so as to warrant an additional sum, by way of penalty, to express the public's indignation and need for deterrence or retribution."
Later, the author of that work (at p 274) said:
"It is not clear whether exemplary must accompany compensatory damages."
Before me, counsel for the defendant indicated that, so far as he was aware, there was no Australian authority directly on point. He suggested that Rookes v Barnard [1964] AC 1129 tended to be authority for the proposition that there needed to be an underlying award of compensatory damages before exemplary or punitive damages could be awarded. He referred to a New Zealand authority to the contrary. Counsel for the plaintiff was unable to point to any authority in support of the proposition that a claim for exemplary or punitive damages could stand alone. He submitted that the proposition was an inevitable consequence of the provisions of s 93B of the Act. I do not accept that that is so.
The New Zealand authorities referred to are Donsellar v Donsellar [1982] 1 NZLR 97 and Cousins v Wilson [1994] 1 NZLR 463. The latter followed the former. In the latter Greig J said (at 470):
"There is certainly an implication there that accompanied by nominal damages the award of exemplary damages would be at least less odd. Because of their distinct purpose, I see no reason why exemplary damages should be necessarily accompanied by compensatory damages. It may well be, of course, that special care has to be taken to ensure that an award of exemplary damages is not made to make up for the absence of or inability to recover compensatory damages, but in this case, the judge was clearly of a mind to award exemplary damages."
The two New Zealand cases were cited in the matter of Fatimi Pty Ltd v Bryant & Ors [2004] NSWCA 140, a judgment handed down on 6 May 2004. In that case Giles JA referred to XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 468‑9 where Brennan J said:
"Exemplary damages are parasitic on compensatory damages, the plaintiff being unable to recover exemplary damages if he is not the victim of the behaviour which attracts the exemplary damages: per Lord Devlin in Rookes v Barnard (1964) AC 1129 at 1127. A single cause of action provides the foundation of a judgment awarding, in an appropriate case, exemplary damages as well as compensatory damages. When a plaintiff's claim for compensatory damages has been satisfied in full, however, he no longer has a cause of action that can support of an award of compensatory damages to which an award of exemplary damages can attach."
Giles JA went on to observe:
"If exemplary damages cannot be obtained when a plaintiff's claim for compensatory damages has been satisfied in full, despite the single cause of action under which exemplary damages could also be awarded, they equally cannot be obtained when the plaintiff's claim for compensatory damages has failed. If there is no host, there cannot be a parasite."
Giles JA referred to a dearth of Australian authority. Having considered the New Zealand cases he went on to say:
"Whatever be the extent of availability of exemplary damages…the civil law is not directed to punishment, deterrence and disapprobation for its own sake."
He said that awarding a plaintiff more than compensatory damages is anomalous in that it tends to confuse the function of the civil law which is to compensate with the function of the criminal law which is to inflict deterrent and punitive penalties.
Handley JA, in his judgment, said that he had read the judgment of Giles JA and agreed with his analyses of the cases and his conclusion that exemplary damages could not be awarded where a cause of action is not established because compensatory damages had not been proved. It is the case that in Fatimi Pty Ltd v Bryant (supra), the plaintiff had proved a conspiracy to injure it by unlawful means but had failed to prove it had suffered any damage which entitled it to an award of compensatory damages. It followed that since a cause of action for conspiracy, a cause actionable only on proof of damage, had not been established for want of proof of damage exemplary damages could not be awarded.
In argument before Deputy Registrar Harman it appears that the plaintiff accepted that the only basis on which her claim was put that would survive the redemption was under the Occupiers Liability Act 1985. Deputy Registrar Harman observed that there was no reason why the legislature should have considered that an individual could not be both an employer and an occupier. He concluded that it was clearly the intention of Parliament to confer immunity on employers in circumstances where the employer otherwise might have been at risk.
I conclude that Deputy Registrar Harman, correctly, held that the claim for compensatory damages, having been compromised pursuant to the provisions of the workers' compensation legislation, could have no independent existence as a claim for compensatory damages under the occupiers liability legislation. The action was allowed to continue and the summary judgment application dismissed because Deputy Registrar Harman acceded to the plaintiff's contention that she should be allowed to amend her statement of claim to delete a prayer for relief for compensatory damages and to substitute a prayer for relief for exemplary or punitive damages only accompanied by amendment to the body of the statement of claim to allege facts which would support that new prayer for relief.
The matter for determination seems clearly to be whether a claim for exemplary or punitive damages can exist absent a claim for compensatory damages.
In Gray v Motor Accident Commission [1998] 196 CLR 1 Kirby J said (at p 33):
"The notion that a plaintiff's entitlement to a component of damages at common law is a matter of discretion is exceptional. Damages are ordinarily the plaintiff's right, being the remedy devised by the common law to effect its purposes. However, the description of exemplary damages as '"discretionary' is embedded in the case law. In Rookes v Barnard, Lord Devlin explained the instruction to be given to the jury where exemplary damages were available. They might award such damages 'if, but only if' the compensatory damages were inadequate to mark the Court's disapproval of the tortfeasor's conduct and to deter him and others from repeating such conduct. Thus the component of exemplary damages was not a right but an element of the damages which the jury could elect to provide or to withhold. In Broome v Cassell & Co, Lord Hailsham described an award of punitive damages as 'discretionary'. There are similar descriptions in Canadian and Australian authority. Indeed, the existence of a discretion has been described as a 'safety valve' permitting the tribunal of fact to decline the award of exemplary damages if some factor makes it proper to refuse them.
I accept that describing the process involved as 'discretionary' may encourage a certain looseness of thinking. However, to some extent that is inherent in the interaction of criminal punishment and civil damages which are described as being in part punitive. It is a discretion to be exercised in accordance with principle. If one of the reasons for awarding exemplary damages is the punishment of the wrongdoer in an emphatic and public way, it is obviously relevant to take into account the fact that this may already have been done or is likely to follow. Once exemplary damages are seen as supplementary to compensatory damages (an addition that may or may not be appropriate in the particular case) the fact that a plaintiff may lose them (or have them reduced by reference to the actions of others in the criminal courts) does no offence to reason. The primary judge's description of exemplary damages as discretionary was therefore correct."

In Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186 the New South Wales Court of Appeal considered the appellant's substantive submission that it was established law that exemplary damages should only be awarded if, but only if, the sum awarded as compensation is inadequate to punish the defendant. It was said that exemplary damages could not be awarded unless compensatory damages had first been assessed.
The Court went on to say:
"The rationale for the 'if, but only if' principle was explained in Broome v Cassell & Co (1972) AC 1027. While the purpose of exemplary damages is not compensation, but punishment, once the sum for compensatory damages has been fixed – 'then if it has been determined that the case is a proper one for punitive damages the tribunal must turn its attention to the defendant and ask itself whether the sum which it has already fixed as compensatory damages is or is not adequate to serve the second purpose of punishment or deterrence. If they think that that sum is adequate for the second purpose as well as for the first they must not add anything to it. It is sufficient both as compensatory and as punitive damages. But if they think that sum is insufficient as punishment then they must add to it enough to bring it up to a sufficient sum as punishment. The one thing which they must not do is to fix sums as compensatory and as punishment damages and add them together. They must realise that the compensatory damages are always part of the total punishment.' (Per Lord Reid at 1089; see also per Lord Hailsham at 1063; Lord Morris at 1095; Lord Wilberforce at 1118 and Lord Diplock at 1121‑2).
The reasoning proceeds on the basis that compensatory damages have a punitive effect, and so before exemplary damages are awarded it must be determined whether the punitive effect is already sufficient to fulfil the purpose of punishing the defendant."
The Court had some misgiving with the proposition that compensatory damages have a punitive effect. It referred instead to the different purposes of compensatory damages and exemplary damages and, in particular, to the observations of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (supra) at 471.
After discussing various authorities both for and against the existence of the principle the Court said:
"There is no decision binding us, on strict rules of precedent, to application of the 'if, but only if' principle. We have reservations as to its consistency with the different natures and purposes of compensatory and exemplary damages, perhaps more clearly recognised at recent times. However, we consider that on the present state of the authorities we should give effect to the principle. To its continuing vitality in England, Canada and New Zealand there is added its recent affirmation in Victorian Court of Appeal, and it has been applied in cases at first instance to which it is unnecessary to refer. With the benefit of the arguments now put to us, the observation of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd does not clearly stand against it and was not a sufficient basis for what we said in paragraph [1511] of our reasons. As an intermediate Court of Appeal we think that we would be departing from our proper role if we were to move the law from its present position, and as has been seen the respondent held back from submitting that compensatory damages and exemplary damages are wholly divorced."
The Court went on to conclude that when compensatory damages remained to be assessed there could be no award of exemplary damages.
In Port Stephens Shire Council & Anor v Tellamist Pty Ltd [2004] NSWCA 353 a decision handed down on 27 September 2004 Santow JA, referring to Amalgamated Television Services Pty Ltd v Marsden (No 2) noted that the Court in that case, though expressing some reservations, held that an order for exemplary damages should not be made until compensatory damages had been assessed and that such an order should only be made "if, but only if the sum awarded for compensation is inadequate to punish the defendant". He went on to say (at par 322):
"Although that case concerns damages for defamation, the comments of the Court suggest that the principle is of more general application. It is not permissible for the Court to fix a sum for compensatory damages and a sum for exemplary damages and merely add them together. It is always necessary for the Court to ask itself 'whether the sum which it has already fixed as compensatory damages is or is not adequate to serve the second purpose of punishment or deterrence': Cassell & Broome Co Ltd v Broome [1972] AC 1027 (at 1089 per Lord Reid); Amalgamated Television Services Pty Ltd v Marsden (No 2) (supra) at 345. Thus the question to be answered is whether, although this was a proper case for exemplary damages, the sum which has already been fixed by way of compensatory damages itself is or is not adequate to serve the second purpose of punishment and deterrence. Another way of framing the question is to consider whether, although exemplary damages were able to be awarded, the quantum of those damages should be nil because the compensatory damages are punishment enough."
It seems to follow from that line of authority that exemplary or punitive damages are parasitic upon a claim for compensatory damages. In the present case, the plaintiff, having compromised her claim for compensatory damages with no associated claim for exemplary or punitive damages, now seeks to embark upon a punitive exercise. If successful she hopes to obtain a judgment for an amount of money being an amount imposed by the Court by way of punishment of the defendant which will be in addition to the amount of money obtained by her by way of the compromise of her claim for compensatory damages.
It seems that there are also, having regard to the comments of Giles JA in Fatimi Pty Ltd v Bryant & Ors (supra), good public policy reasons why what is now being embarked upon by the plaintiff should not be permitted. The civil law of tort provides for compensation by way of damages for loss or injury suffered by a plaintiff as a result of the negligent or other wrongful act of a defendant. The criminal law and other statutory law governing, for example, safety in work places and work practices, provides sanctions for criminal conduct and/or breaches of regulatory provisions. Although not strictly speaking damages as such, exemplary or punitive damages have been imposed in addition to compensatory damages to punish and deter conduct by a defendant arising out of, for example, recklessness or contumelious disregard of the plaintiff's rights or the defendant's own obligations. The plaintiff in this matter now seeks, independently of her claim for compensatory damages (which has been compromised) to prosecute a claim against the defendant on the basis that the defendant be punished. Such action would normally fall within the civil regulatory law or the criminal law by way of a complaint to appropriate investigative authorities such as the police or WorkSafe.
In his judgment delivered on 29 October 2003 Deputy Registrar Harman thought it appropriate to give the plaintiff the opportunity to plead, by way of an amended statement of claim, a claim for exemplary or punitive damages, then making the comment that "it is never too late to make an application to amend". Subsequently, the plaintiff filed here Amended Statement of Claim and was given leave to amend in the terms of that document. It appears that, at the same time, the defendant's application for summary judgment was dismissed. It is the case that the proposed amendments should not have been allowed if the pleas they seek to introduce are so obviously untenable that they cannot possibly succeed or are manifestly groundless. Great care must be exercised to ensure that the party whose plea is attacked is not improperly deprived of his or her opportunity to put his or her case at trial: General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 130. The Court at first instance, and more so on a pleadings summons, should be careful not to risk stifling the development of the law, particularly in circumstances where the law is developing: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373. A court should not grant leave to amend a pleading into a form which is liable to be struck out: Atkinson v Fitzwalter [1987] 1 All ER 483.
Having taken a cautious approach to this matter in the light of the foregoing I have come to the conclusion that the law is such that the plaintiff could not have issued a writ and maintained an action against the defendant seeking only exemplary or punitive damages arising out of the personal injuries suffered by her. That is because such a claim must be made in conjunction with a claim for compensatory damages. The assessment of exemplary or punitive damages, rarely awarded in any event, is a matter of discretion. In the exercise of that discretion the judge or jury as the case may be must necessarily have regard to the award of compensatory damages in order to determine whether there should be an award for exemplary damages and, if so, as to an appropriate quantum. Those determinations will also have regard to the conduct of the defendant giving rise to the claim by the plaintiff.
Having regard to the authorities I am of the view that the nature of exemplary or punitive damages and their relationship to compensatory damages are settled in Australia. In my view leave should not have been granted to allow the amendment to claim exemplary or punitive damages, leave should have been granted to the defendant to make application under O 16 of the Rules of the Supreme Court 1971 for summary judgment and that application should have been, having regard to the state of the law, granted on the basis that, subsequent to the redemption of the plaintiff's claim against the defendant her action had become vexatious and that the defendant had a good defence.
For the foregoing reasons I am of the view that the defendant's appeal should succeed. It follows that the plaintiff should be refused leave to amend her statement of claim in terms of the minute of proposed Amended Statement of Claim filed 8 January 2004 and that there should be summary judgment in favour of the defendant pursuant to O 16, r 1 of the Rules of the Supreme Court. I am satisfied that her action is vexatious and that it should be disposed of summarily, the plaintiff having compromised her claim for compensatory damages in the terms of her agreement with the defendant dated 16 November 2001, and having regard to the provisions of the Workers' Compensation and Rehabilitation Act 1981.