Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence - [2021] WASCA 77

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PROVINCE LEADER OF THE OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS -v- LAWRENCE [2021] WASCA 77
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   9 FEBRUARY 2021
DELIVERED          :   6 MAY 2021
FILE NO/S:   CACV 38 of 2020
BETWEEN:   PROVINCE LEADER OF THE OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS
Appellant
AND
JOHN THOMAS LAWRENCE
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
THE STATE OF WESTERN AUSTRALIA
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
Citation: LAWRENCE -v- PROVINCE LEADER OF THE OCEANIA PROVINCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS [2020] WADC 27
File Number            :   CIV 707 of 2019

Catchwords:

Damages - Child sexual abuse cause of action - Statutory pre‑judgment interest on damages for past economic loss - Power and discretion to award pre‑judgment interest - Presumptive rule of construction - Retrospective operation of s 32(1) Supreme Court Act 1935 (WA)

Damages - Pre-judgment interest - Whether error in application of the 'rough and ready' approach to calculating pre‑judgment interest - Turns on own facts

Legislation:

Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act2018 (WA)
Civil Liability Act 2002 (WA), s 15B
Limitation Act 2005 (WA), s 6A
Supreme Court Act 1935 (WA), s 32(1)

Result:

Appeal dismissed
Cross-appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S K Dharmananda SC & C V Wren
First Respondent	:	M Howard SC, R R Joseph & T J Hammond
Second Respondent	:	No appearance
Third Respondent	:	No appearance

Solicitors:

Appellant	:	Irdi Legal
First Respondent	:	Rightside Legal
Second Respondent	:	No appearance
Third Respondent	:	No appearance

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

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1
Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117
Australian National Airlines Commission v The Commonwealth of Australia (1975) 6 ALR 433
Barber v Pigden [1937] 1 KB 664
Baum v Greenhalgh [2003] WASCA 62
Brasser v Graham & Graham [1985] WAR 180
Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246
Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276
Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161
Carr v Finance Corporation of Australia Ltd [No 2] [1982] HCA 43; (1982) 150 CLR 139
Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629
Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Clybucca Holdings Pty Ltd v Hill [1984] WAR 44
Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27
Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1
Doro v Victorian Railways Commissioners [1960] VR 84
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Fisher v Hebburn [1960] HCA 80; (1960) 105 CLR 188
Foyster v Goynich (No 2) [1984] WAR 91
Gummow v Callaghan (Unreported, FCSCWA, SCL No 5374, Del. 25 May 1984)
Haines v Bendall [1991] HCA 26; (1991) 171 CLR 60
Harper v Phillips [1985] WAR 100
Harry v Rottnest Sightseeing Cruises Pty Ltd [1988] WAR 239
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hungerfords v Walker [1989] HCA 8; (1988) 171 CLR 125
Jefford v Gee [1970] 2 QB 130
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Kraljevich v Lake View & Star Ltd [1945] HCA 29; (1945) 70 CLR 647
Ku-Ring-Gai Municipal Council v Attorney-General (NSW) [1957] HCA 61; (1957) 99 CLR 251
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mansfield v Director of Public Prosecutions (Western Australia) [2006] HCA 38; (2006) 226 CLR 486
Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 258
Mighty River International Ltd v Mineral Resources Ltd [2020] WASC 44
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minogue v State of Victoria [2018] HCA 27; (2018) 264 CLR 252
Nella v Kingia Pty Ltd (1985) 11 FCR 281
Nella v Kingia Pty Ltd [1989] FCA 142
Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537
Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285
Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133
Polyukhovich v The Commonwealth of Australia [1991] HCA 32; (1991) 172 CLR 501
Robertson v City of Nunawading [1973] VR 819
Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
Svagelj Nominees Pty Ltd v Ivan's Mechanical Repairs Pty Ltd [1989] FCA 330
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and Another [2007] NSWCA 117; (2007) 70 NSWLR 565
Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595
Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402

JUDGMENT OF THE COURT:

Overview

This is an appeal from part of a damages award in the District Court of Western Australia.[1] The first respondent, Mr Lawrence, suffered sexual abuse while a child living in two orphanages operated by the Christian Brothers. The appellant was named and sued pursuant to s 15B of the Civil Liability Act 2002 (WA) as the current office holder that is liable for the acts and omissions of the Christian Brothers. Mr Lawrence claimed damages for the psychiatric injury caused by his sexual abuse as a child. Liability was admitted on the first day of trial. However, the appellant disputed the quantum of the claim. The primary judge (Herron DCJ) awarded damages totalling $1,329,500. This included an amount of $400,000 as pre‑judgment interest on past economic loss pursuant to s 32(1) of the Supreme Court Act 1935 (WA).
[1] See Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (primary reasons).
The appeal is limited to that part of the award attributable to the pre‑judgment interest allowed to Mr Lawrence on his economic loss (ie the $400,000). The appellant claims that:
1.There is no power to award pre‑judgment interest to Mr Lawrence pursuant to s 32(1) of the Act.
2.In the alternative, the primary judge erred in law in exercising the discretion to award interest in circumstances where Mr Lawrence's action was for causes of action that had accrued and become statute barred prior to s 32(1) of the Act coming into effect.
Mr Lawrence cross‑appeals. Two aspects of the cross‑appeal are conceded (cross‑appeal grounds 1 and 3(a)). They concern errors by way of miscalculation. The parts of the cross‑appeal as conceded would see an increase in the judgment sum in an amount of $28,622,[2] assuming that the appellant failed in its appeal. One further aspect of the cross‑appeal remains for determination. Mr Lawrence claims that the primary judge erred in the exercise of his discretion by misapplying the 'rough and ready' method to calculate pre‑judgment interest from such time as the underlying past economic loss had been completely lost. Mr Lawrence says that the primary judge should have used a 'full' interest rate of 6% per annum from that time.
[2] The parties were agreed as to the re-calculated figures. $8,622 related to cross‑appeal ground 1: Respondent's submissions in the cross‑appeal par 31 WAB 75; Appellant's submissions in the cross‑appeal pars 1, 7 WAB 92 - 93. $20,000 related to cross‑appeal ground 3(a). See the first respondent's solicitor's letter dated 8 February 2021; Appeal ts 73 - 74.
For the reasons that follow the appeal should be dismissed. There was power under s 32(1) of the Supreme Court Act to award pre‑judgment interest to Mr Lawrence. Further, the primary judge did not err in deciding to exercise the discretion in favour of Mr Lawrence in the manner as alleged by the appellant. However, the cross‑appeal should be allowed. In addition to the miscalculations, as conceded by the appellant, the cross‑appeal should be allowed on the issue that was in dispute at the appeal hearing. There was a misapplication of the rough and ready approach to the calculation of pre‑judgment interest which amounted to an error of principle in the exercise of the discretion.
In the result the judgment in Mr Lawrence's favour should be increased by an amount of $168,622.

Background to the issues arising in the appeal and the cross‑appeal

The appeal and cross‑appeal primarily concern matters of law. The factual matters of relevance to the appeal and cross‑appeal are limited. In the circumstances it is unnecessary to traverse the unhappy and tragic history which gave rise to the appellant's admitted liability for Mr Lawrence's claim for damages for psychiatric injury. Those matters are, in any case, dealt with comprehensively by the primary judge in the primary reasons. What follows, although taken from the primary reasons, is no substitute for the careful and considered exposition of the evidence and the facts as is found in the primary reasons.
We will also avoid detailed consideration of the parties' respective arguments before the primary judge, and the primary judge's reasons, on the questions concerning Mr Lawrence's claim for pre‑judgment interest pursuant to s 32(1) of the Supreme Court Act. The relevant matters are, in the main, to be reconsidered by this court in the context of the appeal. It is appropriate to take this course rather than focusing (as at times the appellant did) on the reasoning of the primary judge. There is only one true construction of s 32(1) and the task for this court in an appeal concerning the construction of a written law is to determine for itself the proper construction of the written law.[3]
[3] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154].
In 1952, when 8 years of age, Mr Lawrence arrived in Australia as a child migrant. He was taken to an orphanage operated by the Christian Brothers. Mr Lawrence remained a resident at the orphanage until he was 16 years old apart from a 12 month period when he was a resident in another orphanage operated by the Christian Brothers. During Mr Lawrence's time as a resident in the orphanages operated by the Christian Brothers, Mr Lawrence was repeatedly subjected to various forms of serious sexual abuse. In the proceedings, Mr Lawrence claimed that he had suffered psychiatric injury which had impacted on all aspects of his life including his ability to work and earn an income.
The claim was based on a breach of a common law duty of care and breach of a statutory duty by reason of the Child Welfare Act 1947 (WA).[4]
[4] First respondent's further amended statement of claim dated 29 January 2020 pars 19 - 20, 23 - 27 BAB 392 - 399.
The primary judge accepted that Mr Lawrence suffered from chronic PTSD and a major depressive disorder caused by the child sexual abuse he suffered while in the care of the Christian Brothers.[5] Mr Lawrence was suffering from those psychiatric injuries by the time he left the Christian Brothers' orphanage.[6]
[5] Primary reasons [706], [743].
[6] Primary reasons [580] - [581], [696], [742].
The psychiatric illnesses had been severe and disabling throughout Mr Lawrence's life.[7] The primary judge concluded that the course of Mr Lawrence's life, and the psychiatric illnesses suffered by him, were inevitably determined by the child sexual abuse[8] - the psychiatric conditions from which Mr Lawrence suffered had: (1) a significant functional impairment on Mr Lawrence's daily life; and (2) significantly interfered with Mr Lawrence's capacity to work and earn an income.[9] The overwhelming and dominant cause of Mr Lawrence's psychiatric conditions was the child sexual abuse Mr Lawrence had suffered while he was in the care of the Christian Brothers.[10]
[7] Primary reasons [710].
[8] Primary reasons [695], [732].
[9] Primary reasons [708] - [709], [713], [741], [743], [751].
[10] Primary reasons [709], [743].
The primary judge made no specific finding as to when Mr Lawrence's cause of action accrued. However, his Honour seemingly accepted a contention by the appellant that the cause of action arose, at the latest, in 1960.[11] That is consistent with the primary judge's finding that, at the time the Christian Brothers sent Mr Lawrence out on to the streets at the age of 16, he was already a deeply psychologically injured person who stood little chance of making a successful life for himself.[12]
[11] Primary reasons [852] - [853]. See also [841]. Although, for the purposes of div 2 of pt 2A of the Civil Liability Act the cause of action is taken to have accrued at the times of the relevant acts or omissions: Civil Liability Act s 15I.
[12] Primary reasons [742].
It was, in any case, common ground on appeal that, but for recent legislation we will shortly come to, Mr Lawrence's cause of action would have become statute barred in June 1971 - 6 years after Mr Lawrence turned 21 years old.[13]
[13] As, at the time the cause of action accrued, Mr Lawrence was under 21 years of age, he was able to commence action within six years after being of 'full age' ('full age' being 21 years old): Limitation Act 1938 (WA) s 38(1)(c)(vi), s 41 (as at 1971).
The primary judge explained the legal basis for Mr Lawrence's claim in terms of amendments to the Limitation Act 2005 (WA) and the Civil Liability Act which were introduced by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) (CLLA Act).[14] Those provisions came into effect on 1 July 2018. The CLLA Act made amendments aimed at removing the limitation periods in respect of civil actions for child sexual abuse and to provide a legal basis for claimants to bring actions against institutions for child sexual abuse in the name of their current office holders.
[14] Primary reasons [7] - [16], [847] - [851].
The CLLA Act introduced s 6A(2) to the Limitation Act 2005:
Despite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action.
The term 'child sexual abuse action' is defined in s 6A(1) of the Limitation Act 2005. Section 6A(1) also contains a number of other relevant definitions of 'child', 'child sexual abuse' and 'child sexual abuse cause of action'.
Transitional provisions introduced to the Limitation Act 2005 by the CLLA Act state:
90.Application of section 6A
Section 6A applies in relation to a child sexual abuse action regardless of when the act or omission constituting child sexual abuse occurred.
91.Previously barred causes of action
(1)An action on a previously barred cause of action may be commenced even though one or more of the following apply -
(a) the action was statute barred before commencement day;
…
Part 2A of the Civil Liability Act makes provision for child sexual abuse actions. Section 15A contains definitions. The terms 'child sexual abuse', 'child sexual abuse action' and 'child sexual abuse cause of action' are defined by reference to their meaning in the Limitation Act 2005. There is also a definition of 'institution'. It means:
an entity (other than the Crown), organised for some purpose or work, that exercises or exercised care, supervision or authority over children, whether as part of its primary functions or activities or otherwise.
The primary judge found that the Christian Brothers' orphanages that Mr Lawrence lived in were institutions as defined in s 15A for the purpose of s 15B of the Civil Liability Act.[15]
[15] Primary reasons [12].
Sections 15B(2) and (3) of the Civil Liability Act apply in the circumstances prescribed in s 15B(1) of the Act (which must be read with s 15F, s 15G and s 15H):
(a)a person was subjected to child sexual abuse by a person associated with an institution; and
(b)the person has or had a child sexual abuse cause of action against the holder of an office of authority in the institution (the office holder) founded on the responsibility of the office holder for the associated person and for the institution generally; and
(c)at the time of the accrual of the cause of action, the institution -
(i) exercised care, supervision or authority over children; and
(ii) was not incorporated; and
(d)the institution is currently not incorporated; and
(e)the office holder no longer holds the office; and
(f)the person would be able to maintain an action on the cause of action if the office holder continued to hold the office.
The primary judge found that the conditions in s 15B(1) were satisfied in relation to Mr Lawrence so far as the Christian Brothers were concerned.[16]
[16] Primary reasons [13], [847].
Sections 15B(2) - (5) of the Civil Liability Act provide:
(2)An action on the cause of action referred to in subsection (1)(b) may be commenced against the current holder of the office (the current office holder) in the name of the office.
(3)Any liability that the office holder would have had in relation to the cause of action is taken to be held by the current office holder.
(4)This section applies -
(a)regardless of when the act or omission that constitutes the child sexual abuse occurred; and
(b)regardless of when the cause of action accrued.
(5) If the current office holder has a liability in relation to a cause of action in tort because of subsection (3), the current office holder is taken to be a tortfeasor, for the purposes of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 section 7, in respect of damage suffered as a result of the tort.
The appellant admitted that, in accordance with s 15B of the Civil Liability Act, it occupied the office of the current holder of the office of authority in respect of the institution of the Christian Brothers against whom Mr Lawrence's child sexual abuse cause of action may be commenced.[17]
[17] Appellant's amended defence dated 3 February 2020 par 2 BAB 403.
There were a number of aspects to Mr Lawrence's damages case. Mr Lawrence sought general damages for pain and suffering and loss of amenities. He also sought various special damages. Importantly, Mr Lawrence claimed damages for loss of earning capacity - this including loss of superannuation. Mr Lawrence also sought exemplary damages and aggravated damages. The primary judge declined to award exemplary damages or aggravated damages.[18]
[18] Primary reasons [1050], [1053].
The claim for loss of earning capacity concerned past losses. The claim for loss of earning capacity was advanced on the basis that, had it not been for the psychiatric injury Mr Lawrence suffered as a result of the sexual abuse, he would have been in full-time employment during his normal working life, earning at least the average weekly earnings as assessed by a forensic accountant. The claim was advanced by reference to two distinct time periods. The first was the period between 1962 (when Mr Lawrence turned 18) until 1990 (when Mr Lawrence turned 46). Mr Lawrence worked over this period, but generally for periods of short duration as he moved from place to place and job to job. The primary judge found that Mr Lawrence's loss of earning capacity over this period should be assessed on the basis that from the ages of 18 to 46 he worked six months of the year. The second period was from 1990 (when Mr Lawrence ceased his irregular employment and commenced receipt of a disability support pension) until 2010 (when Mr Lawrence would have retired at the age of 66).

The primary judge made detailed findings as to the various amounts Mr Lawrence should be awarded by way of damages. The amounts so awarded comprised:
1.General damages for pain and suffering and loss of amenities - $400,000.[19]
2.Loss of earning capacity during the period Mr Lawrence worked (ie to 30 June 1990) - $107,000.[20]
3.Loss of earning capacity during the period from 1990 to 30 June 2010 - $475,000.[21]
4.Loss of superannuation entitlements (over a period encompassing 1993 to 2010) - $38,000.[22]
5.Future medical and medication expenses - $6,000.[23]
6.Special damages (as agreed) - $14,500.[24]
[19] Primary reasons [752].
[20] Primary reasons [819] - [820].
[21] Primary reasons [830] - [832].
[22] Primary reasons [834].
[23] Primary reasons [928], [930].
[24] Primary reasons [934] - [935].
Mr Lawrence also claimed pre‑judgment interest, pursuant to s 32(1) of the Supreme Court Act, on all his past economic loss from the date the loss was incurred until judgment.[25] The appellant denied Mr Lawrence's entitlement to pre‑judgment interest on any past loss awarded to him. The appellant submitted that, in the circumstances of the case and on a proper construction of the relevant legislation, there was no power pursuant to s 32(1) to award interest on past loss.[26] The primary judge characterised the appellant's argument as being, principally, that the 1983 amendment to s 32 which permitted an award of interest on past loss did not operate retrospectively - it did not permit a claimant to recover interest on past loss in respect of actions which accrued prior to 20 June 1983.[27] In short, there was no power to award pre‑judgment interest because there was no power to award interest at the time Mr Lawrence's cause of action accrued in 1960.[28]
[25] Primary reasons [837].
[26] Primary reasons [838], [840] - [841]. See also Primary reasons [852] - [854], [861], [863], [866], [878].
[27] Primary reasons [842].
[28] Primary reasons [853].
In the alternative, the appellant contended that - in the exercise of discretion - the primary judge should not award pre‑judgment interest; or, if interest was to be awarded, there should be no interest awarded for a period prior to the substituted s 32(1) coming into operation. This was advanced on the basis that the consequence of applying the provision retroactively would be unfair in all the circumstances - there being no basis to allow for interest before 1983 when interest was first capable of being awarded.[29]
[29] Appellant's submissions at trial filed 29 January 2020 pars 42(e), 45. See also Primary reasons [897].
The primary judge concluded that, on its proper construction, s 32(1) of the Supreme Court Act permitted the awarding of interest from a time before the commencement of the provision (on 20 June 1983) even if the cause of action arose before that date. In his Honour's view, the clear and unambiguous meaning of the words 'for the whole or any part of the period between the date when the cause of action arose' in s 32(1) was that the section operated retrospectively.[30] In coming to that conclusion the primary judge also relied on a line of cases in the Supreme Court of Western Australia and the Federal Court of Australia - dealing with s 32(1) soon after its commencement in mid‑1983 - which supported his construction. The primary judge also rejected an argument based on the construction of the term 'liability' in s 15B(3) of the Civil Liability Act.[31]
[30] Primary reasons [881]. See also [894].
[31] Primary reasons [888] - [893].
Having found that he had power pursuant to s 32(1) to award pre‑judgment interest on Mr Lawrence's past loss of earnings, the primary judge proceeded with the exercise of the discretion.
The primary judge referred to the appellant's written submissions on the matters to be taken into account in deciding whether, and if so how, to exercise the discretion to award pre‑judgment interest.[32] Among other things, the primary judge made findings that:
1.While the amendments effected by the CLLA Act were 'extraordinary', that was not relevant to the exercise of a discretion to award pre‑judgment interest.[33] This aspect of the primary judge's exercise of the discretion is challenged by ground 2.
2.The assessment of the award for pre‑judgment interest must reflect any payment already made.[34]
3.The effect of the awarding of pre‑judgment interest on the Christian Brothers - as an organisation whose membership had changed over time since the accrual of the cause of action - was not a relevant consideration.[35] This finding is not challenged on appeal.
4.So too the fact that the appellant had not sought to stay the proceedings was not a relevant consideration in deciding whether pre‑judgment interest ought to be awarded.[36] Again, this finding is not challenged on appeal.
5.No fault could be attributed to Mr Lawrence by reason of the timing of the commencement of the proceedings - the delay in commencing proceedings being contemplated by the amending legislation as introduced by the CLLA Act.[37]
6.Unlike the earlier cases (ie the Supreme Court of Western Australia cases in the immediate aftermath of s 32 being substituted in 1983) the appellant had not been taken by surprise that it faced a liability for pre‑judgment interest. Accordingly, the 'sorts of matters which were considered in [those] Supreme Court cases as being relevant to the exercise of the discretion … in the context of legislative amendment which created a liability in defendants to pay interest when none previously existed' were held to be 'not relevant' in the case before his Honour.[38]
[32] Primary reasons [897].
[33] Primary reasons [898].
[34] Primary reasons [899].
[35] Primary reasons [901].
[36] Primary reasons [902].
[37] Primary reasons [901].
[38] Primary reasons [903].
Ground 2, alleging discretionary error in the primary judge's exercise of the discretion, also challenges that part of the primary judge's reasoning as referred to at [31.6] above.
In determining whether to exercise the discretion, the primary judge observed that no reason had been advanced why the long period of time over which pre‑judgment interest could be calculated provided justification to limit the way in which the discretion to award interest should be exercised.[39] In that regard, in the course of the appellant's closing address, the primary judge expressly raised whether there were any discretionary factors he should take into account which would persuade him not to award pre‑judgment interest on past economic loss for the whole period.[40] The most that was said by then counsel for the appellant was that the cause of action 'crystallised' long before it was ever contemplated that pre‑judgment interest would be awarded - at a time when the appellant would not have been faced with an 'obligation' to pay pre‑judgment interest.[41]
[39] Primary reasons [901].
[40] ts 1094.
[41] ts 1095. See also ts 1096 ('at the time that … the cause of action arose there was no contemplation of paying interest').
In all the circumstances, the primary judge was persuaded that an award of interest was appropriate to properly compensate Mr Lawrence for the loss he had suffered. In reaching that conclusion, his Honour gave weight to the compensatory purpose of an award of pre‑judgment interest. The primary judge noted, among other things, that the award of pre‑judgment interest is 'an essential element in the achievement of true compensation' for damage suffered.[42]
[42] Primary reasons [904]. See, in this respect, Haines v Bendall [1991] HCA 26; (1991) 171 CLR 60, 66.
The primary judge considered the appropriate interest calculations.[43] His Honour did so by reference to various reports prepared by Mr Lawrence's forensic accountant. The primary judge determined that the calculation of pre‑judgment interest should mirror the way in which his Honour approached the assessment of past loss of earnings.[44] That is not challenged in this court. The primary judge determined that it was appropriate to adopt an interest rate of 6% over the entire period[45] and made various adjustments.[46] The primary judge then calculated the pre‑judgment interest as follows:[47]
[43] Primary reasons [905] - [923].
[44] Primary reasons [911].
[45] Primary reasons [914].
[46] Primary reasons [915].
[47] Primary reasons [916] - [918].
Calculation of pre‑judgment interest
1962 to 1990
$107,000 x 3% = $3,210 x 28 years = $89,880.
1990 to 2020
$348,400[48] x 3% = $10,452 x 30 years = $313,560.
[48] The $348,400 represents $107,000 (loss to 1990) plus $475,000 (loss between 1990 and 2010) less $233,600 (pension benefits received).
Superannuation - 1993 to 2020
$38,000 x 3% = $1,140 x 27 years = $30,780.
Total interest

1962 to 1990

$89,880

1990 to 2020

$313,560

Superannuation - 1993 to 2020

$30,780

Total

$434,220

The reference to 3% (rather than the 6% the primary judge determined it was appropriate to adopt) was consistent with his Honour applying the 'rough and ready' approach as articulated by Gibbs J (as his Honour then was) in Cullen v Trappell[49] and adopted in Western Australia in Watts v Turpin[50] - an approach which involves awarding interest for the whole period at half the current rate of interest.
[49] Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1, 19.
[50] Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402 [90].
This was the approach adopted in some of the calculations prepared on Mr Lawrence's behalf by his forensic accountant - namely in Exhibit 5.6 which was substantially reproduced at [906] of the primary reasons. Indeed, these calculations, as adduced by Mr Lawrence at trial, applied half of the interest rate over the whole period (expressed as 56 years) - this including the period between 2010 and 2020.[51]
[51] Ex 5.6 GAB 116. Compare: Ex 5.2 par 17.1(i) GAB 46; Ex 5.4 par 8.1(i) GAB 95. See also Primary reasons [906].
The interest calculations did not take into account various compensation payments Mr Lawrence had received.[52] The primary judge recalculated the interest making allowance for $110,000 in compensation payments as an advance payment of interest on Mr Lawrence's loss of earnings. This resulted in interest totalling $401,220 (the only reduction being to interest accruing over 2010 to 2020).[53] The primary judge observed that none of the calculations were meant to represent a precise calculation but instead were approximate broad-brush calculations.[54] The primary judge believed that the $434,220 would overcompensate Mr Lawrence. Ultimately, in the exercise of discretion and doing the best he could, the primary judge awarded Mr Lawrence the amount of $400,000 pursuant to s 32(1) of the Supreme Court Act.[55]
[52] Primary reasons [919] - [920].
[53] Primary reasons [920].
[54] Primary reasons [921].
[55] Primary reasons [922].

The appeal and the cross‑appeal

The appeal

The appeal is limited to the award of pre‑judgment interest in the amount of $400,000. The appellant attacks the award both as being beyond power; and, if within power, on the basis that the primary judge's exercise of discretion miscarried.
Ground 1 alleges, in substance, that the primary judge erred in law in finding that s 32(1) of the Supreme Court Act empowered the court to award pre‑judgment interest to Mr Lawrence. This is put on two alternate bases. The appellant contends that there is no power to award pre‑judgment interest as:
1.Section 32(1) does not operate retrospectively to allow an award of interest on causes of action that accrued before the section came into effect on 20 June 1983 (ground 1(a)).
2.Pursuant to s 15B(3) of the Civil Liability Act, the appellant's liability is limited to the liability that the original office holder would have had when Mr Lawrence's cause of action accrued and there was no power to award pre‑judgment interest to Mr Lawrence at that time (ground 1(b)).
Ground 1(a) depends on the proper construction of s 32(1) of the Supreme Court Act. Ground 1(b) depends on the proper construction of s 15B(3) of the Civil Liability Act.
Ground 2 asserts, in the alternative to ground 1, that if there was power under s 32(1) of the Supreme Court Act to award pre‑judgment interest, the primary judge erred in law in exercising the discretion to award any interest in circumstances where Mr Lawrence's cause of action had accrued and become statute barred prior to s 32(1) coming into effect.
The ground as so expressed is defective. It contains no adequate description of how the primary judge is said to have erred in law in the exercise of his discretion. No specific discretionary error, express or implied, is identified. In written submissions, however, the appellant advanced ground 2 in two ways.
The primary judge is alleged to have erred in law by:
1.First, finding (at [898] of the primary reasons) that the extraordinary nature of the amending legislation constituted by the CLLA Act was not a relevant consideration to the exercise of discretion (see [31.1] above).[56]
2.Second, finding (at [903] of the primary reasons) that the sort of matters considered by the prior Supreme Court of Western Australia cases - primarily whether a defendant had been taken by surprise that it faced a liability for pre‑judgment interest - was not a relevant consideration to the exercise of the discretion (see [31.6] above).
[56] Appellant's submissions par 92 WAB 25.
In oral submissions at the appeal hearing, senior counsel for the appellant confirmed that the discretionary error alleged, the subject of ground 2, was a failure to take into account a material consideration as manifested at [898] and [903] of the primary reasons.[57]

The cross-appeal

[57] Appeal ts 48.

Mr Lawrence's cross‑appeal has three grounds that are pressed.[58] Grounds 1 and 3(a) concern miscalculations by the primary judge. As mentioned, those grounds are conceded by the appellant. The miscalculation errors are patent on the primary reasons. Accordingly, that aspect of the cross‑appeal should be upheld. It is unnecessary to consider this any further other than to observe that the errors, as corrected, will see the judgment sum increased by $28,622. The remaining aspect of the cross‑appeal, for determination in these reasons, is cross‑appeal ground 2.
[58] Cross‑appeal ground 3(b) was abandoned before the appeal hearing.
Cross‑appeal ground 2 alleges, in substance, that the primary judge misapplied the 'rough and ready' method to the calculation of pre‑judgment interest insofar as - from particular dates - the relevant past loss of earnings had been fully suffered. The contention was that, from such date, the pre‑judgment interest should have been calculated at the full interest rate of 6% rather than the half interest rate of 3%. The ground was advanced in two parts. Cross‑appeal ground 2(a) concerned the period post-June 2010 (by which time all relevant losses had been suffered). Cross‑appeal ground 2(b) concerned the period between June 1990 and June 2010 - relating only to the $107,000 in damages for loss of earnings from 30 June 1963 to 30 June 1990.
By the appeal hearing, following conferral, the parties were agreed that, if cross‑appeal ground 2 was allowed, then - given cross‑appeal grounds 1 and 3(a) were to be upheld - the award of pre‑judgment interest ought to be varied from $400,000 to $560,000.[59]
[59] See the first respondent's solicitor's letter dated 8 February 2021; Appeal ts 84.

Appeal ground 1(a): the parties' submissions

Before turning to the terms of s 32 of the Supreme Court Act, and the authorities which have considered the scope of its operation, it is useful to outline the parties' contentions in relation to ground 1(a).
The appellant relied on the following propositions:
1.Pre‑judgment interest, if awarded, is a component of a defendant's liability to compensate a claimant. It is an award in the nature of damages.
2.From the time that Mr Lawrence's cause of action accrued, in 1960, the Christian Brothers had a liability that corresponded to Mr Lawrence's enforceable claim to compensation for his psychiatric injury.
3.Mr Lawrence was not entitled to claim pre‑judgment interest when his cause of action accrued in 1960 - meaning that the appellant was free of any liability or potential liability to meet pre‑judgment interest.
4.Section 32 did not operate retrospectively with respect to causes of action that accrued prior to 20 June 1983. This is because:
(a)the presumption that legislation does not have a retrospective operation applies to s 32(1);
(b)while the presumption does not apply to a provision that is merely procedural, that is not the position with s 32(1): s 32(1), if given an unconfined operation, would affect pre-existing substantive rights and liabilities resting on past events;
(c)any suggestion that s 32(1) was a mere procedural provision was incompatible with the High Court having held, in John Pfeiffer Pty Ltd v Rogerson,[60] that all questions about the kinds or amounts of damage that may be recovered should be treated as a substantive issue governed by the law of the place where the wrong was committed;
(d)the presumption was not rebutted by the wording of s 32(1) either expressly or by necessary implication.
5.The line of authority in the Supreme Court of Western Australia and the Federal Court of Australia to the contrary was plainly wrong, being inconsistent with subsequent High Court authority and decided without regard to the relevant principles.
[60] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [98].
In the course of submissions, senior counsel for the appellant made passing reference to s 37 of the Interpretation Act 1984 (WA) and in particular to s 37(c) and (f) of that Act.[61] This went no higher than to state that the common law presumption had a partial statutory analogue. There might be scope for the operation of s 37 in the present case. Section 3 of the Supreme Court Amendment Act (No 2) 1982 (WA) repealed the original s 32 of the Supreme Court Act. However, at the appeal hearing senior counsel for the appellant informed the court that ground 1(a) was advanced solely in terms of the common law presumption.[62] It would be inappropriate in these circumstances to decide the appeal on a basis inconsistent with the manner in which it was fought by the parties. In any event, the courts have generally regarded the statutory test as not leading, relevantly, to any different result than the common law.[63] Accordingly, it is not necessary to address s 37.
[61] Appellant's submissions par 31 WAB 14; Appeal ts 16 - 17.
[62] Appeal ts 17 - 18.
[63] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [34].
The appellant criticised the approach of the primary judge to the extent that his Honour considered it unnecessary to examine cases concerning the distinction between substantive and procedural provisions and the presumption against retrospectivity. The appellant submitted it was not correct to construe the language of s 32(1) without regard to the presumption. The appellant contended that if a statutory provision has a retrospective operation, the presumption applies and the critical inquiry is whether the presumption is rebutted by clear language or necessary implication.
Mr Lawrence sought to support the construction adopted by the primary judge. He submitted that the intended operation is clear from the words of s 32(1) and there is no need for recourse to any presumption. In that respect, Mr Lawrence relied on the line of cases in the Supreme Court and the Federal Court that the appellant contended to be wrongly decided. Mr Lawrence also submitted that no question of retrospectivity arose. Rather, s 32(1) was hinged about the order the court may make going forward - it operates prospectively by allowing that pre‑judgment interest may be included in a judgment sum in any proceedings for the recovery of any money. On Mr Lawrence's argument, the substituted s 32(1) had no relevant retrospective operation merely because it applied prospectively to past events.

Mr Lawrence contended in the alternative:
1.The presumption against retrospective operation does not apply because the substituted s 32(1) did not disturb any fixed liability of the appellant - this submission focussed on the discretionary nature of the power and the circumstance that there was no existing right or liability in the relevant sense until the exercise of the discretion.
2.If the presumption did apply, then the clear words of s 32(1) rebutted the presumption.
3.If, which was not accepted, s 32(1) did operate retrospectively in the relevant sense, there was nothing unfair about that operation and the provision should be given effect. This submission relied on the propositions that:
(a)the presumption is rebuttable by reference to the particular operation of the statute;
(b)the basis of the presumption is fairness - Parliament does not intend what is unjust;
(c)the presumption should not be held to preclude the operation of s 32 in the context of a child sexual abuse action brought pursuant to pt 2A of the Civil Liability Act as there would be no particular unfairness to the Christian Brothers in applying s 32 retrospectively;
(d)in contrast, denying Mr Lawrence an essential element of compensation in circumstances where Parliament has seen fit to enable him to seek justice for the child sexual abuse that he suffered is inconsistent with the legislative intent underlying the CLLA Act.
Mr Lawrence relied on a notice of contention in relation to the alternative submissions at [54.1] - [54.3].[64] It appears that the notice of contention was filed out of an abundance of caution as the additional points in favour of the construction upheld by the primary judge were not part of the primary judge's reasoning. In our opinion the better view is that no notice of contention was required. The issue on appeal is whether, as the primary judge found, s 32(1) of the Supreme Court Act on its proper construction empowered the primary judge to award Mr Lawrence pre‑judgment interest on his past economic loss despite the circumstance that Mr Lawrence's cause of action accrued before s 32(1) came into operation. In considering the proper construction of s 32(1), assuming procedural fairness considerations are observed, this court cannot be confined by the reasoning employed by the primary judge.
[64] WAB 52.
For that reason, while the underlying submissions must be considered, it is not necessary to deal separately with Mr Lawrence's notice of contention.

Statutory pre‑judgment interest: s 32 of the Supreme Court Act 1935 (WA)

There is no common law power to make an order for the payment of interest to compensate for the delay in obtaining payment of what the court assesses to be the appropriate measure of damages for a wrongful act. If such interest is to be awarded at common law, it must be pursuant to statutory authority.[65] The District Court's power to award pre‑judgment interest in personal injury claims relies on s 32 of the Supreme Court Act - s 32 applying to the District Court by virtue of s 34 of the Supreme Court Act and s 57(1) of the District Court of Western Australia Act 1969 (WA).
[65] Hungerfords v Walker [1989] HCA 8; (1988) 171 CLR 125, 152.
It is necessary to track through the development of s 32 of the Supreme Court Act. In its current form s 32 reads:
32.Pre‑judgment interest, Court may order
(1)In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.
(2)This section does not -
(a) authorise the giving of interest upon interest; or
(aa)apply in relation to any general damages in respect of pain and suffering or the loss of the enjoyment or of the amenities of life awarded in relation to personal injury or the death of a person; or
(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or
(c)affect the damages recoverable for the dishonour of a bill of exchange.
(2a)In subsection (2)(aa) personal injury includes any disease and any impairment of a person’s physical or mental condition.
Five things ought to be observed immediately. First, s 32(1) provides for a discretion. The court 'may' order such interest. There is no entitlement to pre‑judgment interest. Second, on its face the provision applies 'in any proceedings for the recovery of any money'. Third, by its terms the provision permits an order for interest that commences from the date that the relevant cause of action arose. Fourth, interest may be awarded for the whole or part of a certain period - the 'period between the date when the cause of action arose and the date when the judgment takes effect' (s 32(1)). Fifth, certain exclusions are provided for in s 32(2). These include two specific kinds of monetary recovery - particular types of general damages in relation to personal injury or death (s 32(2)(aa)) and any debt on which interest is payable as of right (s 32(2)(b)).
It is established that:
1.A fourfold discretion arises in relation to s 32. Initially, whether to order interest at all. If so, further discretions arise as to: the interest rate to be applied; the amount on which interest accrues (which may be an amount less than the whole of the judgment); and, finally, over what period interest is to run.[66]
2.The principles in relation to the award of pre-judgment statutory interest include the following:[67]
(a)An award of interest up to the date of judgment is an award of interest in the nature of damages; it is compensatory in character. Thus understood it is an element in the attainment of the object of damages, namely, to compensate a claimant for the injury sustained. However, it 'should not be awarded as compensation for the damage done'.[68]
(b)The reason for awarding interest is to compensate the claimant for having been kept out of the money which theoretically was due to him or her at the date the loss commenced - it operates to ensure that the claimant receives a current equivalent of money's worth.
(c)An award of interest on damages for personal injury should do no more than assist in the restoration of a claimant to the position in which he or she would have been but for the defendant's negligence.
[66] Foyster v Goynich (No 2) [1984] WAR 91, 92. See also McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 258, 259.
[67] Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161 [162] (referring to Haines v Bendall (66)). See also Watts v Turpin [87].
[68] Haines v Bendall (66) (referring to Jefford v Gee [1970] 2 QB 130, 146).
In the latter respect, the purpose or object of s 32 is to do more complete justice between the parties.[69]
[69] Harry v Rottnest Sightseeing Cruises Pty Ltd [1988] WAR 239, 244.
Section 32 has not always been in its current form. On commencement of the Supreme Court Act, on 1 May 1936, s 32 provided:
Upon all debts or sums certain, payable at a certain time or otherwise, in any action the Court at the hearing, or the jury on the trial of any issue, or on an assessment of damages, may, if the Court or jury think fit, allow interest to the creditor at a rate not exceeding eight pounds per centum per annum from the time when such debts or sums certain were payable, if such debts or sums are payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment was made in writing, giving notice to the debtor that interest would be claimed from the date of such demand or any later date: Provided that interest shall be payable in all cases in which it is now payable by law.
Accordingly, s 32 did not then provide for pre‑judgment interest in relation to the recovery of damages. That shortcoming was ameliorated when, with effect from 20 June 1983, s 32 was repealed by s 3 of the Supreme Court Amendment Act (No 2) 1982 (WA) and the following provision was substituted:
32. (1)In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.
(2)This section does not -
(a)authorize the giving of interest upon interest;
(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or
(c)affect the damages recoverable for the dishonour of a bill of exchange.
(3)This section applies to proceedings in a Local Court, except where the sum for which judgment is given does not exceed $750.
Section 32 as so substituted provides the nucleus for the current s 32. In particular, s 32(1) remains in identical terms. There have, however, been two changes to the legislation since 1983.
In 1986, commencing on 18 August 1986, s 32 was amended by s 6(1)(a) and (b) of the Acts Amendment (Action for Damages) Act 1986 (WA) by inserting s 32(2)(aa) and s 32(2a) as follows:
[(2)This section does not -][70]
(aa)apply in relation to any general damages in respect of pain and suffering or the loss of enjoyment or of the amenities of life awarded in relation to personal injury or the death of a person.
(2a)In subsection (2)(aa) 'personal injury' includes any disease and any impairment of a person's physical or mental condition.
[70] This part of s 32(2) was pre-existing.
Section 6(2) of the Acts Amendment (Action for Damages) Act provided:
Section 32 of the Supreme Court Act 1935 as amended by subsection (1) has no operation in relation to a cause of action in respect of which a court has given judgment before the commencement of this section, whether or not that judgment is subject to appeal, but otherwise applies to and in respect of causes of action arising before that commencement in the same way as it applies to causes of action arising after that commencement.
The appellant relies on s 6(2) - and the absence of any like provision in relation to s 32(1) - as demonstrating a Parliamentary intent that s 32(1) does not have a retrospective effect. The circumstance that, in 1986, the Parliament expressly provided for a particular retrospective operation to be given to amendments to s 32 is of no material significance to the proper construction of s 32(1) insofar as it commenced operation on 20 June 1983. Nor, in our view, does a similar type of argument on Mr Lawrence's part have much force. Mr Lawrence contended that the absence of any amendments clarifying the retrospective operation of s 32(1) was significant as the Parliament should be taken to have known of the authorities in the Supreme Court of Western Australia which accepted that the power could be exercised in relation to causes of action accruing before commencement of the provision. The argument went that had this not been the statutory intent the section would have been amended. At the most the non-amendment can be taken into account as indicating that the legislature was satisfied that the earlier interpretation was correct.[71]
[71] Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133, 141, 146 - 147.
The second change post‑1983 was of less significance. With effect from 1 May 2005, s 128 of the Court Legislation Amendment and Repeal Act 2004 (WA) repealed s 32(3). Section 32 then took its present form.

The authorities in relation to s 32 of the Supreme Court Act 1935 (WA)

There are a number of authorities, both in the Supreme Court of Western Australia and the Federal Court of Australia, that have considered whether s 32(1) may be employed in relation to a cause of action that accrued before the commencement of the statutory power. The appellant contended that those authorities were plainly wrong and invited this court not to follow them. A number of the authorities are decisions of the Full Court of the Supreme Court of Western Australia. Accordingly, it is necessary to give the decisions close consideration.

The previous Western Australian decisions

It is convenient to consider the Western Australian decisions in the order in which they were delivered. With the exception of McQuillan v J F Thomson (WA) Pty Ltd,[72] which is a first instance decision of Burt CJ, the decisions which we will refer to are Full Court decisions in which Burt CJ presided.[73]
[72] Decided on 31 August 1983.
[73] Foyster v Goynich (No 2) (decided on 4 August 1983); Gummow v Callaghan (Unreported, FCSCWA, SCL No 5374, Del. 25 May 1984) (decided on 25 May 1984); Harper v Phillips [1985] WAR 100 (decided on 25 May 1984); Brasser v Graham & Graham [1985] WAR 180 (decided on 12 July 1984). The cases referred to below do not include Clybucca Holdings Pty Ltd v Hill [1984] WAR 44. That was a first instance decision of Brinsden J delivered on 3 August 1983. Brinsden J held that there was nothing in s 32 which precluded the making of a retrospective award (46). However, in the exercise of discretion, Brinsden J confined the order for interest to interest from the date that the amending Act was passed (47).
Foyster v Goynich (No 2) is the first of the decisions. Although decided before McQuillan, argument had been heard in McQuillan before the Full Court delivered ex tempore reasons in Foyster v Goynich (No 2).[74] Section 32 had commenced operation two days before the Full Court handed down judgment on an appeal in relation to a damages claim based on the respondent's negligence. On the day the Full Court sat to deliver its reasons disposing of the appeal, the appellant applied to amend the statement of claim so as to claim pre‑judgment interest.
[74] The report mentions two days on which argument was heard. However, the report does not state that the reasons were: 'Cuv adv vult'. Also Burt CJ's reasons refers to: 'Today we have heard argument …' (92).
Burt CJ (Wallace & Brinsden JJ agreeing) said referring to s 32:
[A] good deal of the argument has centred upon the so‑called retrospective operation of the new s 32 of the Supreme Court Act. This section is said to be procedural and hence it is said to apply to all actions, all proceedings, that is to say, which are tried after or which are pending as at 20 June 1983 - to apply to all then pending actions whenever they might have been commenced, whether before or after the coming into operation of the new section. And the section when it operates is said to have another retrospective aspect to it, namely that the court might in the exercise of its discretion award interest for a period of time anterior to the coming into operation of the Act.
I think - and this is really an obiter observation - that each of those propositions can be supported …
Now, it is one thing to say that an Act is retrospective in the sense that it enables the court at trial to award interest for a period of time prior to the date upon which the Act comes into operation … but it seems to me to be another thing altogether to say that it was the intention of the statute to enable a court of appeal to award interest in a case which has passed into judgment before the Act has come into operation.[75] (emphasis added)
[75] Foyster v Goynich (No 2) (93).
Burt CJ observed, importantly, that the answers to the particular questions which might arise were primarily questions of construction. The questions being adverted to by Burt CJ concerned the retrospective operation of the substituted s 32(1). That recognition indicated - contrary to submissions made by the appellant in this appeal - that Burt CJ was acutely aware of the analysis that was required in determining whether s 32(1) operated in relation to causes of action accruing before it came into effect.
Burt CJ, in deciding whether to exercise the discretion to award interest, said:
I merely point out that it seems to me to be a different matter altogether in a case in which the proceeding has passed into judgment at a time before the Act came into operation, and that is this case.
…
It would then be a case of this Court awarding interest and allowing that interest to increase the judgment and the monies payable by the defendant under it in a case in which there was no liability to pay interest when the tort was committed, there was no liability to pay interest when the action was commenced, no liability to pay interest when the case was heard or when it passed into final judgment, and it would seem to me to be unjust, unless there are special circumstances, and none are suggested here, that a court of appeal should award interest in those circumstances. I confine the circumstances to a case in which the judgment has been finalised in the court of trial before the Act came into operation, and I confine my observations to that particular limited type of case.[76] (emphasis added)
[76] Foyster v Goynich (No 2) (93 - 94).
Burt CJ (Wallace & Brinsden JJ agreeing) did not exercise the discretion to award interest as it would have been unjust in the circumstances of the particular case.[77]
[77] Foyster v Goynich (No 2) (94).
The appellant argued that Burt CJ's obiter observations in respect of whether the substituted s 32 had a retrospective operation were made without analysis and proceeded on the incorrect assumption that the provision was procedural.[78] We consider there was no such incorrect assumption. The references to 'is said' do no more than recount the submissions made to the Full Court immediately before delivery of an ex tempore judgment. The most that is said, by way of obiter dicta, is that the propositions can be supported. That is to say that the propositions - including that the provision is procedural - are arguable, not that they are accepted. In any event, the first submission, that the provision was procedural, was to the effect that the provision applied to all pending actions, whenever they might have been commenced - whether before or after the commencement of the new section. The second submission was that the provision had 'another retrospective aspect', namely that the provision conferred a discretion to award interest for a period of time anterior to the provision coming into operation. If and insofar as his Honour may have accepted both submissions, it is by no means evident that his Honour regarded the acceptance of the first proposition as governing the acceptance of the second.
[78] Appellant's submissions par 55 WAB 18. See also pars 67, 70, 75 WAB 20 - 22.
The next decision is McQuillan v J F Thomson. Burt CJ, sitting as a single judge, referring to s 32, said:[79]
Submissions were made to me at the hearing as to whether that provision was or was not retrospective and in the course of those submissions a number of authorities were cited to me. With great respect to those submissions, I think them to be misconceived. I do not think that any question of retrospectivity arises. The section applies to 'any proceedings for the payment of money (including any debt or damages or the value of any goods), …' and with respect to such proceedings it authorises the court to order, but it does not require the court to order, that there shall be included in the sum for which judgment is given, interest at such rate as it thinks fit. The interest may be ordered on the whole or any part of the money and for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. That provision was in operation when this action was heard and the action then satisfied the description of a 'proceeding for the recovery of any money (including any debt or damages …)'. Hence with respect to those proceedings the court could exercise the discretionary power which the sub‑section conferred upon it. So to hold is not, in my opinion, to give the section any retrospective operation. And if it does, then to read the section down so as to confine its operation to causes of action which arose after 20 June 1983, would contradict the section which in unqualified terms empowers the court to award interest for a period which begins to run from the date when the cause of action arose. In my opinion the sub-section authorises the court to award interest in all cases falling within it which are pending when the section came into operation and for a period commencing upon the date upon which the cause of action arose and hence for a period prior to 20 June 1983.[80] (emphasis added)
[79] McQuillan v J F Thomson (259).
[80] McQuillan v J F Thomson (259).

The appellant submitted that, in McQuillan, Burt CJ's analysis was again tied to an incorrect conception that the substituted s 32(1) was merely procedural - a characterisation that inevitably led to the finding that no question of retrospectivity arose.[81] We reject that criticism. It is true, as Burt CJ records, that a number of authorities were cited - including Maxwell v Murphy[82] and Simonius Vischer & Co v Holt & Thompson.[83] The gravamen of Burt CJ's conclusion in McQuillan is (1) that no question of retrospectivity arose, and (2) if the provision were relevantly retrospective in its operation, the statutory language was nevertheless explicit and clear and empowered the court to award interest in respect of causes of action accruing before the commencement of the section. Consistently with what his Honour foreshadowed in Foyster v Goynich (No 2), Burt CJ reached that conclusion on the proper construction of the provision so far as he concluded that to read down s 32(1) so as to confine its operation to causes of action arising after the section commenced in operation would contradict the unqualified terms of the provision.
[81] Appellant's submissions pars 58, 61 WAB 19. See also par 68 WAB 20.
[82] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261.
[83] Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322.
Both Maxwell v Murphy and Simonius Vischer & Co v Holt & Thompson are considered further below. It is, however, appropriate to mention one aspect of Simonius Vischer & Co at this point. That case concerned s 94(1) of the Supreme Court Act 1970 (NSW), a provision providing for pre‑judgment interest in very similar terms to the substituted s 32(1). Moffitt P, in characterising the subject matter of the discretionary power provided by the provision as substantive, pointed out that even in respect of a cause of action accrued in the past, an award of interest for a period after the provision commenced will operate prospectively.[84]
[84] Simonius Vischer & Co v Holt & Thompson (337).
The appellant acknowledged that there were a number of Full Court authorities that were delivered after McQuillan v J F Thomson. It was said, however, that these merely relied on Foyster v Goynich (No 2) and McQuillan and did not advance analysis of the issue at the level of construction or principle.[85]
[85] Appellant's submissions pars 61, 64 WAB 19, 20.
In Gummow v Callaghan the substituted s 32 came into operation seven days after trial in the District Court. The plaintiff moved to amend the statement of claim to plead a claim for interest when judgment was delivered. However, the trial judge ruled that because judgment had already been given, he would not hear the application; and that, even if he had heard the application, he would not allow it.
Burt CJ held that the trial judge did have power to hear the application and had power to award interest. However, in the exercise of discretion, in circumstances where the power to include interest only arose after trial and there was no special ground for exercising the discretion beyond the general ground that the plaintiff had been out of his money, Burt CJ determined it would not be fair to the respondent to award interest, and declined to do so.[86] Smith and Olney JJ agreed with Burt CJ's observations and conclusion as to the claim for interest.[87]
[86] Gummow v Callaghan (12 - 13).
[87] Gummow v Callaghan (32), (47).
Harper v Phillips was also an appeal from the District Court. The trial was heard on 23 June 1983, three days after the introduction of the substituted s 32. The cause of action had accrued in late August 1979. The trial judge held s 32 as substituted had no application to the cause of action arising before 20 June 1983 and refused to award pre‑judgment interest.[88] The Full Court overturned the trial judge's finding that s 32 had no application to the case and in the exercise of the discretion awarded interest on some items of past loss. Accordingly, Harper v Phillips stands as an authority which this court must decline to follow if ground 1(a) is to be upheld.
[88] Harper v Phillips (102).
Burt CJ stated:
For reasons expressed in a number of recent decisions of this Court [which, we interpolate, include Burt CJ's first instance decision in McQuillan v J F Thomson] I think that the power to include interest now conferred on the court by s 32 … extends to 'any proceedings' and hence it was a power which could have been exercised in the instant case. But it is at all points a discretionary power and the discretion conferred is one which this Court must now exercise for itself. It is not, I think, foreign to the exercise of that discretion for the court to bear in mind that the Act conferring the power did not come into force until 30 June 1983 [sic - intended to be referring to 20 June 1983], and hence it exposes the defendant to an additional liability.[89]
[89] Harper v Phillips (102).
Later Burt CJ confirmed that, on the proper construction of s 32 in its substituted form, there was power to award interest within a judgment upon a cause of action arising before the date on which the section came into operation.[90] His Honour allowed such interest in respect of particular aspects of the damages award.[91]
[90] Harper v Phillips (104).
[91] Harper v Phillips (104).
Wallace J remarked that the court had been referred to a 'great deal of argument' as to retrospectivity.[92] His Honour stated that the section applies to any proceedings involving the recovery of any money such as damages and referred to Gummow v Callaghan (which was decided on the day Harper v Phillips was delivered).[93] Without further analysis, Wallace J stated his opinion that the case was an appropriate one for the exercise of the discretion to award interest on certain items.[94] Smith J agreed with Wallace J.[95]
[92] Harper v Phillips (105).
[93] Harper v Phillips (105).
[94] Harper v Phillips (106).
[95] Harper v Phillips (107).
The final Western Australian case to mention is Brasser v Graham & Graham. There the trial judge had declined to award interest, as a matter of discretion, on the basis that it would impose a liability to which the defendant was not exposed when the action was commenced (prior to the substituted s 32 coming into effect) and for which no claim was made until a very late stage in the trial. Brinsden J stated:
This Court, however, in a number of single judge decisions has awarded interest in cases involving personal injuries, and in Foyster v Goynich (No 2), Burt CJ said (though obiter) the section empowered the court to award interest retrospectively prior to the date of the commencement of the amendment. In my view, the section provides the power to award interest retrospectively but whether this should be done is a matter entirely reposing in the discretion of the court.[96] (citations omitted)
[96] Brasser v Graham & Graham (181).
Brinsden J made an allowance for pre‑judgment interest. Burt CJ agreed with Brinsden J's reasons and the orders he proposed.[97] Wallace J also provided for pre‑judgment interest, observing 'recent authority has made it quite clear that it will now only be in rare circumstances that awards of damages applicable to date of trial will not attract interest from the date of the issue of the writ claiming relief, in this case 12 July 1982 [ie before the commencement of the substituted s 32(1)]'.[98] Accordingly, Brasser v Graham & Graham also stands as an authority which this court must decline to follow if ground 1(a) is to be upheld.

The decisions in the Federal Court of Australia

[97] Brasser v Graham & Graham (180).

[98] Brasser v Graham & Graham (180).

Senior counsel for Mr Lawrence relied on a number of decisions in the Federal Court of Australia where it was held that, on its proper construction, s 32 empowered the court to award pre‑judgment interest in proceedings for causes of action accruing before 20 June 1983.[99] The appellant argued that those decisions add nothing.[100] It is, in our view, only necessary to refer to two of them.
[99] Nella v Kingia Pty Ltd (1985) 11 FCR 281, 285; Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285, 290; Nella v Kingia Pty Ltd [1989] FCA 142 [7]; Svagelj Nominees Pty Ltd v Ivan's Mechanical Repairs Pty Ltd [1989] FCA 330 [8].
[100] Appellant's submissions par 69 WAB 20.
In Pavich v Bobra Nominees Pty Ltd a question arose as to whether an applicant who had obtained damages consequent on a contravention of s 52 of the Trade Practices Act 1974 (Cth) could obtain pre‑judgment interest pursuant to s 32 of the Supreme Court Act. French J (as his Honour then was) held that, as a matter of construction and power, s 32 did not apply to proceedings in which the State courts had no jurisdiction. Moreover, s 79 of the Judiciary Act 1903 (Cth) did not operate to apply s 32 to the exercise by the Federal Court of its jurisdiction under the Trade Practices Act. In so concluding French J made some observations as to the scope and operation of s 32.
French J stated:
It has been said that a law providing for the award of interest on damages is purely adjectival, creates no new cause of action and does not require the damages to be assessed in any different manner from that previously adopted: Ruby v Marsh (656) (Gibbs J). To say that, however, is not to deny that such a provision creates substantive rights. The statute under consideration in that case was s 79A of the Supreme Court Act 1958 (Vic). Some might regard as significant the fact that it provides for the award of interest only 'from the commencement of the action until the entry of judgment'. In my opinion it makes no difference, but there can be little doubt that laws providing for the award of interest on damages from the date that the cause of action arose are substantive and not merely procedural: Simonius Vischer & Co v Holt and Thompson (336) (Moffitt P), (340) (Reynolds JA), (367) (Samuels JA); State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) (125) (Lockhart J). And the finding by the Full Court of Supreme Court of Western Australia that s 32 is capable of retrospective operation depends on the language of the section not upon any characterisation of it as procedural in nature: Foyster v Goynich (No 2).[101] (citations omitted) (emphasis added)
[101] Pavich v Bobra Nominees Pty Ltd (290 - 291).
French J's observation that laws providing for the award of pre‑judgment interest involve the creation of substantive rights, and are not procedural, is important in the context of ground 1(a). For reasons we develop below, we respectfully agree with that observation. We also respectfully agree with French J's observation that the obiter conclusion in Foyster v Goynich (No 2) as to the potential retrospective operation of s 32(1) was not based on the provision being characterised as procedural in nature.
In the subsequent decision of Nella v Kingia Pty Ltd, French J referred to Foyster v Goynich (No 2), Harper v Phillips and Brasser v Graham & Graham and concluded:
Section 32 operates retrospectively in the sense that interest may be awarded in relation to causes of action that arose and periods of time that elapsed before it came into operation.[102]
[102] Nella v Kingia Pty Ltd [1989] FCA 142 [7]. A statement to the same effect is repeated by French J in Svagelj Nominees Pty Ltd v Ivan's Mechanical Repairs Pty Ltd [8].
We respectfully agree with French J that the line of authority his Honour refers to establishes that proposition. The question raised in the appeal, by ground 1(a), is whether the proposition is wrong. The appellant contended that the line of authority was not only wrong but plainly wrong. The appellant contended that none of the authorities engaged in any real analysis with respect to well-established principles relating to the presumption against the retrospective operation of statutes. It was also said that the authorities relied to a significant extent on an incorrect assumption that s 32 was procedural, which could not stand.[103]

Appeal ground 1(a): Is the power to award pre‑judgment interest under s 32(1) of the Supreme Court Act confined to causes of action accruing after the commencement of the provision?

The presumption against retrospective operation

[103] Appellant's submissions par 75 WAB 22. See also par 27 WAB 13.

There is no doubt that the Parliament of Western Australia has the capacity to pass legislation with retrospective effect. It is said, however, that: '[r]etrospective legislation is somewhat 'distasteful' - even more so when retrospective legislation takes away accrued rights'.[104] The resistance of the law to retrospectivity in legislation is to be found in the rule - often expressed in terms of being a 'presumption' - that, save where the legislature makes its intention clear, a statute ought not to be given retrospective operation where to do so would be to attach new legal consequences to facts or events which occurred before its commencement.[105]
[104] Minogue v State of Victoria [2018] HCA 27; (2018) 264 CLR 252 [111].
[105] Polyukhovich v The Commonwealth of Australia [1991] HCA 32; (1991) 172 CLR 501, 642.
In terms of stating the relevant principle, the general common law rule as stated by Dixon CJ in Maxwell v Murphy is one that is often referred to:
[A] statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[106]
[106] Maxwell v Murphy (267). See also Dixon CJ's formulation of the principle in Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629, 637 - 638. It is clear that these statements continue to enunciate the applicable common law principle: Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 [26] - [27]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 [27], [50].
So too is the following statement of Fullagar J in Fisher v Hebburn:
There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.[107]
[107] Fisher v Hebburn [1960] HCA 80; (1960) 105 CLR 188, 194.
While often referred to as a 'presumption', the principle is, we consider, better understood as a rule of statutory construction.[108] As was said by French CJ, Crennan and Kiefel JJ in Australian Education Union v General Manager of Fair Work Australia, in the context of discussing the principle, in the end the court must construe statutes by reference to their text, context and purpose.[109] The rule of construction fits within, not outside of, the general approach to statutory construction; it is not controlling but is part of the process of construction to be undertaken by the court. Accordingly, if the rule ought to be considered when construing s 32(1) of the Supreme Court Act, the starting point in construing s 32(1) remains the text of the statutory provision[110] which must be read and understood in its context and by giving effect to the apparent legislative purpose.[111]
[108] In Maxwell v Murphy Dixon CJ referred to the interpretation depending on 'presumption or rules of construction' (266) and 'the presumptive rule of construction' (268). The term 'presumptive rule of construction' and 'rule of construction' was also used by Dixon J (as his Honour then was) in Kraljevich v Lake View & Star Ltd [1945] HCA 29; (1945) 70 CLR 647, 652 - 653. See also Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 [6].
[109] Australian Education Union v General Manager of Fair Work Australia [27]. See also [32].
[110] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[111] ADCO Constructions Pty Ltd v Goudappel [28].
The presumptive rule of construction is rooted in fairness and the principle of legality.[112] It is founded on a presumption of common sense that in a well-ordered and civilized society the legislature would not intend what is unjust.[113] To again refer to the reasons of French CJ, Crennan and Kiefel JJ in Australian Education Union:
In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations.[114]
[112] Australian Education Union v General Manager of Fair Work Australia [30].
[113] Barber v Pigden [1937] 1 KB 664, 678.
[114] Australian Education Union v General Manager of Fair Work Australia [30].
The rule does not apply to a provision that is merely procedural in the narrow sense, ie a provision that would not, if given unconfined operation, affect pre-existing substantive rights or liabilities.[115] Often such statutory provisions only operate prospectively - prescribing how something may or must be done in the future even if what is to be done relates to or is based on past events - and there is no room for the operation of the presumption.[116] It is accepted, however, that:
the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.[117]
[115] Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595, 615.
[116] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518.
[117] Rodway v The Queen (518); Victrawl Pty Ltd v Telstra Corporation Ltd (615 - 616).
Many rights are closely bound up with procedures and remedies. So it is said that a statute, merely procedural, is to be construed as retrospective; however, a statute, while procedural in character but affecting vested rights adversely, is to be construed as prospective.[118]
[118] Maxwell v Murphy (270).
The foregoing general discussion about the presumptive rule of construction leads to two topics which ought to be considered in the disposition of the appeal. First, the scope of operation of the rule - in particular, examination of what is meant in this context by giving a statute 'retrospective operation'. Second, what is required for an intention of retrospective operation to appear with reasonable certainty - in what circumstances is the presumptive rule of construction displaced.

The scope of the presumptive rule of construction - giving a statute a retrospective operation

The term 'retrospective' is not always used with constant meaning.[119]
[119] Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 [111]; Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276 [15].
Interference with existing rights does not make a statute retrospective in the relevant sense. Many statutes affect existing rights prospectively. There is no presumption that interference with existing rights is not intended. There is, however, a presumption that an Act speaks only to the future.[120] Accordingly, if events have occurred prior to the passing of an Act which have brought into existence particular rights or liabilities in respect of a matter, and the Act is construed as altering those rights and liabilities, it is thereby given a retrospective operation.[121] There is a retrospective operation if and to the extent that legislation operates to alter rights or liabilities which have already come into existence by operation of prior law on past events.[122]
[120] Chang v Laidley Shire Council [113]. See also Australian Education Union v General Manager of Fair Work Australia [26].
[121] Burns v Minister for Health [15].
[122] ADCO Constructions Pty Ltd v Goudappel [48].

There could be no discretionary error in the primary judge not having regard to a matter raised for the first time on appeal (it not being fundamental and obvious to the exercise of the discretion).[191] That is all the more so given the interchange referred to at [33] above.
[191] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120]. See also: Snook v Registrar of Fines Enforcement Registry[2019] WASCA 204 [23], [37]; Mighty River International Ltd v Mineral Resources Ltd [2020] WASC 44 [77].
Third, having regard to what has been said at [196] - [199] above, it is neither necessary nor appropriate to express any conclusion on whether the appellant's potential immunity from suit from June 1971 to the commencement of the amendments effected by the CLLA Act was a material consideration to the exercise of the discretion.
It remains to address the alleged discretionary errors contended to be found in [898] and [903] of the primary reasons.
At [898] the primary judge stated:
I readily accept that the amendments to the [Limitation Act 2005] and [Civil Liability Act] lifting the limitation periods in relation to child sex abuse actions and allowing the victims of such abuse to now issue court proceedings are extraordinary. However, I do not consider that is relevant to the exercise of a discretion to award pre‑judgment interest. It is certainly not a reason to decline to exercise the discretion to award pre‑judgment interest.
That finding answered the contention made in par 48(a) of the appellant's written submissions at trial (which is reproduced at [897] of the primary reasons).
There is, in our view, no discretionary error revealed by the primary judge's conclusion that the characterisation of the amendments effected by the CLLA Act as extraordinary was not a material consideration in the exercise of the discretion. The material consideration was not the epithet that might be attached to the amending legislation but rather what the passage of the legislation meant in terms of removal of the limitation period and the consequence that the appellant became exposed to a potential award of pre‑judgment interest: (1) which might be calculated over a long period of time; and (2) notwithstanding that the cause of action accrued before the commencement of the substituted s 32(1). As previously mentioned, the primary judge properly took account of those matters in his exercise of the discretion.
At [903] the primary judge stated:
The sorts of matters which were considered in the Supreme Court cases as being relevant to the exercise of the discretion whether to award pre‑judgment interest in the context of legislative amendment which created a liability in defendants to pay interest when none previously existed, is not relevant to this case. When the action was commenced the defendant knew that it faced a potential liability for pre‑judgment interest. That is so notwithstanding the submission made that there is no power pursuant to s 32 [of the Supreme Court Act] to award interest. Unlike the earlier cases at the time s 32 was amended, the Christian Brothers have not been taken by surprise that it faced liability for a claim for prejudgment interest. (emphasis added)
It is apparent, reading [903] in context - and being cognisant that here, unlike at [898] - [902] of the primary reasons, the primary judge was not directly answering the appellant's written submissions - the primary judge was referring to a factor that distinguished the case before him from many of the earlier cases in the Supreme Court on the coming into operation of the substituted s 32(1). His Honour was alive to the circumstance that, in a number of those cases, the court declined to award pre‑judgment interest because such interest had not been claimed throughout the proceedings and was introduced only at a late stage.[192] The primary judge was simply making the observation that - unlike those cases - this was not a relevant matter in the present case as at all times the appellant was aware that Mr Lawrence was seeking pre‑judgment interest.
[192] For example, in Foyster v Goynich (No 2) the claim for pre‑judgment interest was only made post-appeal hearing. See also Gummow v Callaghan (13). This was also a material consideration in Australian National Airlines Commission v The Commonwealth of Australia.
So understood the passage cannot be seen as demonstrating any discretionary error by failing to have regard to a material consideration. To the contrary, the primary judge was simply identifying a different relevant consideration - one that distinguished the present case from the earlier cases. In so doing his Honour did not suggest that the issue of fairness, so far as pre‑judgment interest was sought in respect of a period prior to the commencement of s 32(1) of the Supreme Court Act, was not a material consideration. Rather, as has been seen, the primary judge identified and took into account the question of the unfairness to the appellant as was inherent in awarding pre‑judgment interest notwithstanding that s 32(1) commenced after the accrual of Mr Lawrence's causes of action.
Ground 2 should be dismissed.
At the appeal hearing an issue arose as to whether, should ground 2 be established, this court should re-exercise the discretion or whether the question should be remitted to the District Court. Senior counsel for the appellant sought an order for remittal on the basis that this court was not in possession of all relevant materials. In the circumstances orders were made permitting the parties to file affidavits containing any additional material not before the court said to be relevant to the re-exercise of the discretion. The appellant subsequently made an application for leave to inform the court, by letter, of the various places within the appeal books where relevant materials were located. As ground 2 should be dismissed, and we would not re-exercise the discretion, it is not necessary to refer to those materials. Accordingly, the appellant's application in an appeal dated 17 February 2021 should be dismissed.

Cross‑appeal ground 2: Mr Lawrence's challenge to the use of the 'rough and ready' method of interest calculation

The 'rough and ready' approach to calculating pre‑judgment interest

Mr Lawrence accepts that it was open to the primary judge, in the exercise of his discretion, to adopt the 'rough and ready' approach to the calculation of pre‑judgment interest rather than perform precise calculations on an annual basis, but contends that the primary judge's discretion miscarried in implementing that approach.
The rough and ready method involves calculating interest for the whole period at half the rate of interest. The rationale for the approach was explained by Gibbs J (as his Honour then was) in Cullen v Trappell:
[L]oss of earnings before judgment - or to be more accurate loss of earning capacity which has produced financial loss before judgment - often occurs gradually. Each week the plaintiff loses earnings he might otherwise have made during that week and some of the loss he suffers may be incurred immediately before the trial. Therefore it would overcompensate the plaintiff to award interest in full from the date of the accident to the date of judgment … a rough and ready method of compensating a plaintiff for the delay in receipt of the moneys payable in respect of the loss - a delay which might range from some years to none - would be either to halve the period for which interest is given at current rates or to give interest for the whole period at half the current rates.[193]
[193] Cullen v Trappell (19).
An appropriate formula to employ the second of the suggested 'rough and ready' methods of calculation was endorsed in Watts v Turpin:
Interest = ½ Interest Rate x Principal x Time.[194]
[194] Watts v Turpin [90].
The primary judge employed this formula. However, as has been seen, his Honour calculated the interest in relation to three distinct periods: 1962 - 1990 (the period Mr Lawrence was working); 1990 - 2020 (the post-work period); and 1993 - 2020 (in relation to superannuation). Mr Lawrence claims, by cross‑appeal ground 2, that once the loss was complete (from either 30 June 2010 in respect of ground 2(a) or 30 June 1990 in respect of ground 2(b)) the full interest rate should have been applied. From this time, according to Mr Lawrence's submission, the entire loss suffered had been incurred and the rough and ready method of calculation had no application.
Mr Lawrence submitted that the rough and ready approach only applied to the period during which the loss was accruing. It had, in Mr Lawrence's submission, no application to the period after the loss had fully crystallised.

The authorities relied on by Mr Lawrence

There is support for Mr Lawrence's argument in two decisions. The first, Baum v Greenhalgh, was a decision of the predecessor to this court. In recalculating interest on past loss of earning Parker J (Wallwork & Murray JJ agreeing) identified a refinement to the rough and ready method of calculation. His Honour applied a half rate over the period the loss was accruing. Thereafter, insofar as no further loss accrued meaning that the loss was complete, Parker J considered that the interest was reasonably calculated on the loss at the prevailing prescribed rate, ie the full rate.[195]
[195] Baum v Greenhalgh [2003] WASCA 62 [75].
The same sort of calculation was made in Brown v Churchill.[196] There the trial judge applied a half rate over a period of 2.9 years. However, in quantifying the loss, the trial judge calculated the loss over 48 weeks comprising a 19 week period from 1 July 2003 to 13 November 2003 (while the plaintiff was receiving workers' compensation payments) and a further period of 29 weeks (from 13 November 2003 to 3 June 2004 - the time of trial).
[196] Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246.
McLure JA (Steytler P & Pullin JA agreeing) stated:
[I]f half the usual rate of interest is applied (because the loss has been incurred over time) there is no justification for doing other than applying it to the actual period of the loss, in this case 48 weeks [ie the two periods the loss was accruing] not 2.9 years. The appellant approaches the calculation of the loss as follows: $2,850 × 3% × 19 weeks = $31.25 plus ($2,850 + 31.25) × 6% × 29 weeks = $96.41 plus $17,400 × 3% × 29 weeks = $291.11. I accept that to be an accurate approach and I would award interest in the sum of $418.[197] (emphasis added)
[197] Brown v Churchill [14].
Accordingly, the rough and ready approach was applied during the period the loss was accruing. Thereafter, however, the full interest rate was applied. This was appropriate as there was no justification for the rough and ready approach other than in its application to the actual period when the loss was accruing.
Before this court Mr Lawrence contended that the accurate way to calculate pre‑judgment interest was as follows:[198]
1.Loss suffered 1962 - 1990 x 3% (half rate) x 28 years (ie 1962 - 1990); plus
2.Loss suffered 1962 - 1990 x 6% (full rate) x 20 years (ie 1990 - 2010); plus
3.Loss suffered 1990 - 2010 x 3% (half rate) x 20 years (ie 1990 - 2010); plus
4.[(Loss suffered 1962 - 1990) + (Loss suffered 1990 - 2010)] x 6% (full rate) x 10 years (ie 2010 - 2020).
[198] First respondent's submissions on the cross‑appeal pars 61 - 62 WAB 81 - 82.
This methodology did not address the calculation so far as it concerned the loss in relation to superannuation contributions. Mr Lawrence contended, however, that the same issue arose in relation to interest on the loss in relation to the superannuation contributions.[199] Presumably step 3 in [219] above should be replicated in relation to the superannuation contributions, with all necessary modifications. And, as to step 4, the principal component should be modified to add the loss in relation to superannuation contributions.

The appellant's answer to the contention that the discretion miscarried

[199] First respondent's submissions on the cross‑appeal par 43 WAB 78.

The appellant acknowledged the outcomes in Baum v Greenhalgh and Brown v Churchill. It was said, however, that this was apt for the usual approach where loss accrues over a relatively short period of time and that the rough and ready approach should not be equated with a fixed principle or legislative direction that curtails the exercise of the discretion. The appellant said that the primary judge faced a situation where the loss had accrued over decades and there was evidence - led by Mr Lawrence - as to how this might impact on the calculation of interest using the rough and ready approach.[200]
[200] Appellant's submissions in the cross‑appeal pars 32 - 33 WAB 98.
According to the appellant, this was not a case where, at trial, Mr Lawrence contended that the half interest rate should only be employed while the loss was accruing (as is now contended in the cross‑appeal). Rather:
1.Mr Lawrence's forensic accountant initially prepared year‑by‑year precise calculations.[201]
2.At trial Mr Lawrence also tendered a schedule prepared by the forensic accountant - Exhibit 5.6 - that calculated pre‑judgment interest using a rough and ready approach adopting a half interest rate on the total loss over the 56 year period from 1962.[202]
3.The figures in the rough and ready calculations were substantially higher than the more precise calculations that the forensic accountant originally undertook - something observed by the primary judge in his primary reasons at [907].[203]
[201] Exhibit 5.2 par 17.1(i) GAB 21; Exhibit 5.4 par 8.1(i) GAB 95.
[202] Exhibit 5.6 GAB 116.
[203] See also Primary reasons at [906].
There was also evidence at trial from the forensic accountant that it was inappropriate to use the rough and ready calculation where small losses were incurred early on in the period and bigger losses were incurred later in the period. The forensic accountant said that it would 'lead to a distorted calculation'.[204] Sometime later in his evidence-in-chief the forensic accountant clarified that the rough and ready method of calculation (which he referred to as the 'rule of thumb approach') relied on the idea that losses are sustained evenly across the whole period.[205] He said that, in the present case, some of the losses in the early years were 'very small' and there was a period of 9.5 years where there was no loss at all (ie notional retirement in 2010 to 2020).[206] The forensic accountant suggested possible methods by which such matters might be dealt with - he mentioned moving the midpoint of the period or changing the rate slightly.[207]
[204] ts 327.
[205] ts 339.
[206] ts 339.
[207] ts 339. The former is mentioned in Watts v Turpin as one approach to be considered where interest rates have varied over time: [90].
The appellant contended that, in the context of such evidence and various other imprecisions, the primary judge himself qualified the way in which he came to the award for pre‑judgment interest by saying that he was making a broad brush calculation doing the best he could.[208] It was submitted that the court should not disturb the exercise of discretion merely because a different method of applying the rough and ready approach may be appropriate in a case where a loss accrues over a shorter period.[209]

Conclusion

[208] Primary reasons [921] - [922].

[209] Appellant's submissions in the cross‑appeal pars 36 - 37 WAB 99.

There is considerable force in the proposition that the kind of interest calculation posited by Mr Lawrence on appeal (see [219] - [220] above) would have been a more appropriate way to calculate an award of pre‑judgment interest for Mr Lawrence.
Mathematically, the rough and ready method of calculation has its justification in the supposition that a claimant has been deprived of a regular monetary amount over the period of the calculation - a period that continues to the point where the pre‑judgment interest is calculated and awarded on entry of judgment. Implicit also in the rough and ready method of calculation is that a single interest rate is appropriate over the whole of the period. The rationale for the rough and ready method of calculation ceases at the point that the notional losses (ie the regular monetary amounts) have been suffered in full. From that point, assuming that a trial judge has determined that a particular interest rate is the appropriate rate to compensate a claimant for being kept out of the money which is theoretically due to the claimant by way of proper compensation, the application of the rough and ready rule's 'half' interest rate must inevitably under compensate. The claimant does not receive the current equivalent of the loss (calculated as at the past date) in money's worth.
A simplified mathematical example will illustrate the point.
Let it be assumed that, due to an insurance broker's negligence, a client, Ms X, is deprived of a 2 year annuity that provides for an amount of $10,000 to be paid to her each month. At the end of year 1 the loss is $120,000. At the end of year 2 the loss totals $240,000. The loss remains $240,000 from year 2 to the end of year 6 when judgment is entered and the trial judge comes to award pre‑judgment interest. Assume that, in a period of low interest rates over the six years, the trial judge in the exercise of discretion determines that an appropriate interest rate is 4% per annum. If the rough and ready method is applied over the whole six year period the interest is $28,800 (2% x $240,000 x 6 years). However, that ignores that for all of year 3 to year 6 Ms X has been kept out of the $240,000. If, as at the end of year 6, Ms X is to be justly compensated for being kept out of the $240,000 from the end of year 2, the interest for those four years alone should be $38,400 (4% x $240,000 x 4 years). It is, however, appropriate to use the rough and ready method to calculate the pre‑judgment interest for the initial two years. This is $9,600 (2% x $240,000 x 2 years). This modified application of the rough and ready method of calculation would thus see interest totalling $48,000 ($9,600 for years 1 and 2 and $38,400 for years 3 to 6).
It is not enough, however, that - had we been in the position of the primary judge - we would have taken a different course because the kind of interest calculation sought by Mr Lawrence on appeal is a more appropriate way to calculate the pre‑judgment interest. It must be shown that appellable error has been demonstrated in the exercise of the discretion.
In assessing whether there has been discretionary error it is significant that, in Exhibit 5.6, one set of the calculations prepared by Mr Lawrence's forensic accountant use the 3% (the half rate) over the full period (referring to 1962 onwards including the period from 2010 to 2020). There was no refinement to the rough and ready method of calculation as is now pressed on appeal. Mr Lawrence - more correctly Mr Lawrence's legal representatives - did not suggest any such refinement to the primary judge. That presents as a difficulty in identifying appellable discretionary error on the part of the primary judge. It is, however, necessary to fully understand how those figures from Mr Lawrence's forensic accountant came to be prepared and adduced into evidence.
Initially, as the appellant correctly noted, Mr Lawrence's forensic accountant prepared year-by-year precise calculations in relation to pre‑judgment interest. In opening, counsel for Mr Lawrence highlighted that the forensic accountant had prepared pre‑judgment interest calculations on a year-by-year basis rather than applying the rough and ready approach as commonly employed in practice.[210] As part of his case Mr Lawrence plainly sought pre‑judgment interest on the basis of the precise year-by-year calculations rather than seeking to employ the rough and ready method. However, when the forensic accountant was called to give evidence the primary judge questioned the basis on which the calculations were prepared.
[210] ts 47.

The primary judge stated that his recollection was that interest on past loss is usually calculated at 3%.[211] The following exchange then occurred:
[211] ts 325. A similar observation appears at fn 1061 in the primary reasons - the primary judge there referring to the rough and ready method of calculation. Accordingly, it is apparent that the primary judge had in mind a practice that: 'Interest is usually calculated on the basis of 3% of the total past economic loss multiplied by the number of years of which the loss has occurred'.
[Primary judge]: Well, there’s going to be submissions about - - -
[Mr Lawrence's counsel]: There will - - -
[Primary judge]: - - - 6 per cent should be the appropriate rate?
[Mr Lawrence's counsel]: Yes. There will also be submissions as to why the appropriate rate ought effectively follow the rates as set out over the gazetted times.
[Primary judge]: Were the calculations based on the 3 per cent interest?
[Mr Lawrence's counsel]: Your Honour, if you - on page 245, interest calculated at say - the losses claimed in the time period 1972 to 19 - - -
[Primary judge]: No. I can see that. If I don't accept any of that and I award interest - if I'm prepared to award pre‑judgment on the basis of 3 per cent - - -
[Mr Lawrence's counsel]: Yes?
[Primary judge]: - - - a schedule will be provided to me - - -
[Mr Lawrence's counsel]: Of course.
[Primary judge]: - - - based on the calculation of 3 per cent.
[Mr Lawrence's counsel]: I'm sorry, your Honour. I misunderstood - - -
[Primary judge]: Yes.
[Mr Lawrence's counsel]: - - - your observation. Of course it will. Yes.
[Primary judge]: And I'm not suggesting that I will award interest. I'm not making any pre‑judgment about - - -
[Mr Lawrence's counsel]: No.
[Primary judge]: - - - what my approach will be on pre‑judgment interest. I simply make that observation analysis. I've not been involved in one of these for a while, but my recollection is normally, interest on past loss is calculated at 3 per cent, to recognise that it's an ongoing loss over a period of time.[212]
[212] ts 325 - 326.
This led to the evidence of the forensic accountant, previously referred to, that the method referred to by the primary judge may be inappropriate, leading to a distorted calculation, in various situations (see the earlier evidence referred to at [223] above).
The court adjourned for the day shortly after the interchange reproduced above. The forensic accountant's evidence-in-chief continued the next morning. Counsel for Mr Lawrence continued to lead evidence as to the forensic accountant's precise year-to-year interest calculations.[213] However, having completed that task, counsel for Mr Lawrence then directed the forensic accountant's attention to the schedule that became Exhibit 5.6.[214] This was explained by the forensic accountant as being a calculation using the rough and ready approach 'taking the whole of the loss and multiplying that by half the interest rate for the entire period'.[215] The forensic accountant had been asked to prepare the schedule overnight.[216] It is obvious, having regard to the interchange referred to at [232] above, that the schedule that became Exhibit 5.6 was not prepared as part of Mr Lawrence's case. Rather, it was to meet a request of the primary judge.
[213] ts 330 - 337.
[214] ts 337.
[215] ts 337.
[216] ts 337.
The forensic accountant then gave the balance of the evidence referred to at [223] above. Among other things he stated:
And we also have a - a very - an unusual calculation here where we - where we have a period of 9.5 years where there was no loss at all. That affects the way in which the losses - there's no losses for 20 per cent of the period.[217] (emphasis added)
[217] ts 339.
The forensic accountant later stated:
… the fundamental premise that the - the rule of thumb rests upon is so far removed from what other circumstance is in this case that you would have to - in essence, to use it in - in the way that judges I've seen do in various other cases - they - they move the midpoint of the period or they change the rate slightly. The only way to actually get it right would be to calculate the interest and then work backwards to move the parameters to get to what would be a reasonable calculation.[218]
[218] ts 339.
Accordingly, rather than supporting the methodology evinced in Exhibit 5.6, Mr Lawrence's forensic accountant pointed to defects in the methodology in its application to the unusual facts of the present case. These defects included that the notional losses had been fully incurred almost 10 years before the time at which the pre‑judgment interest was to be awarded. That was in circumstances where: (1) Mr Lawrence's case was that the appropriate method of calculation of pre‑judgment interest was the year-by-year precise calculations as initially prepared by the forensic accountant; and (2) Exhibit 5.6 took the form that it did because of a request by the primary judge in the course of the forensic accountant's evidence-in-chief.
In the circumstances, although Mr Lawrence's forensic accountant did present interest calculations based on a 3% interest rate over the whole period of loss from 1962, that method of calculation cannot fairly be attributed to Mr Lawrence. It was a calculation conceived of by the primary judge - one which Mr Lawrence's forensic accountant said would need to be modified to get to a reasonable calculation.
The primary judge modified the interest calculation to allow for $110,000 in compensation payments being received as an advance payment of interest on Mr Lawrence's loss of earnings. However, the primary judge made no modification to take account of the circumstance that the losses as found did not continue to accrue beyond 1990 (as to one head of economic loss) or 2010 (and to the other two heads of economic loss). There was no such modification notwithstanding: (1) the evidence of Mr Lawrence's forensic accountant that there was a period where there was no loss (something which was obvious on the findings of the primary judge in any event); and (2) the evidence of Mr Lawrence's forensic accountant, in accordance with the rationale underpinning the methodology, that the rough and ready method of calculation assumes losses that are sustained evenly across the entire period.
It was reasonably open to the primary judge to apply the rough and ready method of calculating pre‑judgment interest to a period or periods when Mr Lawrence was incurring regular and recurrent notional losses. However, by his calculations, the primary judge applied the rough and ready method of calculating pre‑judgment interest beyond such a period or periods. His Honour applied the method beyond the actual period over which the relevant losses accrued and included in his calculations periods of time when the relevant heads of loss were no longer recurrent - the various heads of loss having ceased to accrue, and being suffered in full, from 1990 and 2010 respectively.
In our respectful opinion, the exercise of discretion miscarried to this extent. The primary judge acted on the wrong principle in applying the rough and ready method of calculation of pre‑judgment interest to a period beyond 'the actual period of the loss' (to adopt the phrase used by McLure JA in Brown v Churchill). The primary judge erred in principle because, having held that the 'full' interest rate of 6% was appropriate, the primary judge's application of the rough and ready method beyond the actual period of the loss resulted in an inevitable and systematic under compensation. The primary judge's method of calculation could not justly compensate Mr Lawrence for being kept out of the money the subject of his loss. Given the accepted purpose of s 32(1) is to compensate a claimant for having been kept out of the money which was due to him or her, it was erroneous in principle to adopt a method of calculation which could never achieve that object in the circumstances of the case.
Accordingly, we would uphold cross‑appeal ground 2.
The parties agreed that, if the court dismissed the appeal, but allowed cross‑appeal ground 2 (as well as cross‑appeal grounds 1 and 3(a)), the amount of pre‑judgment interest ought to be varied from $400,000 to $560,000. That agreement cannot bind the court. Broadly speaking, however, the figure as agreed by the parties is consistent with the calculation proposed in [219] - [220] above (allowing for rounding and a little give and take). In the circumstances we are satisfied that the figure as agreed by the parties is in accordance with the principles which have led to cross‑appeal ground 2 being upheld and should be accepted.

Conclusion and orders

The appeal should be dismissed. The cross‑appeal should be allowed to the extent of upholding cross‑appeal grounds 1, 2 and 3(a). The appellant sought to disturb the costs orders below if the appeal was allowed. As the appeal should be dismissed there is no need to consider the appellant's challenge to the costs orders as made by the primary judge.
Mr Lawrence's success on the cross appeal will see an increase in the judgment in his favour in an amount of $168,622 ($8,622 as to cross‑appeal ground 1 and $160,000 as to pre‑judgment interest).
We would order that:
1.The appeal is dismissed.
2.The cross‑appeal is allowed.
3.The order of the District Court of Western Australia made 11 March 2020 in action CIV 707 of 2019 is varied by deleting par 1 and substituting the following:
There be judgment in the action for the plaintiff against the defendant in the amount of $1,498,122 net of agreed deductions pursuant to s 15K of the Civil Liability Act 2002 (WA).
4.The appellant's application in an appeal dated 17 February 2021 is dismissed.
The parties should be heard on the costs of the appeal and the cross‑appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Research Associate to the Honourable Justice Vaughan
6 MAY 2021

1962 to 1990	$89,880
1990 to 2020	$313,560
Superannuation - 1993 to 2020	$30,780
Total	$434,220