Vic Workcover Auth & Anor v Esso Aust Ltd

[2001] HCATrans 89

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M101 of 2000

B e t w e e n -

VICTORIAN WORKCOVER AUTHORITY

First Appellant

FAI WORKERS’ COMPENSATION (VIC) PTY LTD

Second Appellant

and

ESSO AUSTRALIA LTD

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 5 APRIL 2001, AT 10.19 AM

Copyright in the High Court of Australia

MR R.P. GORTON, QC:   If the Court pleases, I appear with my learned friend, MR M.F. WHEELAHAN, for the appellants. (instructed by Wisewoulds)

MR A.G. UREN, QC:   If the Court pleases, I appear with my learned friend, MR G.A. LEWIS, for the respondent.  (instructed by Middletons Moore & Bevins)

GLEESON CJ:   Yes, Mr Gorton.

MR GORTON:   May I take it that the Court is familiar with all the background information that brings this case before it and section 138 of the Accident Compensation Act and section 60 of the Supreme Court Act, or should I read those sections?

GLEESON CJ:   No, you should not.

MR GORTON:   Thank you.

KIRBY J:   Cannot promise to have read every case on debt and damages put before us, but - - -

MR GORTON:   We have, of course, your Honour, but we have forgotten a lot of them. This appeal does raise the meaning of and extent of the phrase “proceedings for debt or damages” within section 60 of the Supreme Court Act of Victoria and a substantial part of our early submission is made redundant by the concession made by the respondents that a proceeding under section 38 of the Accident Compensation Act to recover indemnity from the party who was a cause of the injured worker’s injury is appropriately an action at common law to enforce the right given by a statute and in ‑ ‑ ‑

KIRBY J:   There is no other provision in the Act that gives it any other category, is there?

MR GORTON:   No, your Honour.  The question still remains as to how the right that is pursued by that common law action is to be categorised and, for that reason, I would still seek to refer the Court to Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 and particularly to a short passage in the judgment of Chief Justice Knox at page 70. That provides, at around the bottom third of the page – perhaps the bottom quarter:

The rule applicable here is stated in Shepherd v Hills as follows, viz.  “Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary”:  and where the amount is liquidated the action of debt is appropriate.  The obligation is none the less a debt because the statute gives no particular method of enforcing it.

GLEESON CJ:   Is the amount in the present case liquidated?

MR GORTON:   That is a matter that is in some dispute.  There are ways of looking at it that say it is liquidated and there are ways of looking at it that say it is unliquidated.  It gets very ‑ ‑ ‑

GLEESON CJ:   Is that what the case is about?

MR GORTON:   Partly, yes, your Honour. The case is put that the claim for indemnity under section 138 put against us is not a claim for debt because it is unliquidated, is not a claim for damages because it does not qualify as damages when the money is sought and therefore the claim is not a claim that falls within the phrase “proceedings for debt or damages” in section 60 of the Supreme Court Act and, because it does not fall within that phrase, it is said no entitlement to interest accrues when judgment is given for the payment of money.

GLEESON CJ:   What are the facts that bear on whether it is or is not a liquidated claim?

MR GORTON:   I am not sure that I fully understand where that question is meant to take me.  The provisions of section 38 give a right to indemnity for the amount of compensation paid subject to a cap on that amount, which is defined in section 138(3).  Perhaps I should – before going on with that – these proceedings were conducted as if and on the basis that section 138 in the current form was applicable to the whole claim.  Now, it may be that if different approaches had been taken, different forms of 138 might have been applied over the years in respect of the claim but that was not the way the case was run and it was not the way the case was presented in the Court of Appeal.

KIRBY J:   We had better get clear what is the provision that is applicable to this case and we had better have the foundation for that so that we are not simply going on the assurance of the parties, because sometimes those assurances are not right.

MR GORTON:   Well, the case was conducted on the ‑ ‑ ‑

KIRBY J:   I realise that, but I think we should have – and I do not think it is in the written submissions – some note that indicates why the common agreement about the applicable form is correct, given that there have been amendments.

MR GORTON:   I think the basis for saying that it is correct is that that is the way it was approached.  There is probably a good argument that, on a proper analysis, section 138, in various forms, should have been considered but it was not.

GLEESON CJ:   What material difference to the outcome of the case would it have made if it had been approached on the correct basis?

MR GORTON:   There are a number of possible forms of section 138.  In the early stages it provided that, where an amount of compensation had been paid, subject to a maximum limit, the indemnity was for a proportion of the compensation paid only, that proportion depending on the degree of responsibility of the defendant or the party called on to provide the indemnity.

In other words, you have an injured plaintiff and there may have been two parties who were to blame for the accident or the worker may have been partly to blame and a court on apportioning responsibility for the injury might have determined that it was a third to the responsibility of one of the negligent parties, a third of another and a third to the plaintiff.

The authority would then have been called on to pay compensation to the injured plaintiff but would have been entitled to recover in respect of any of the negligent parties only one third of the amount of compensation paid.  That has been changed by the comparatively recent amendments so that now there is a full recovery of compensation paid until the limit that a, for want of a better word, tortfeasor could have been called on to pay to the injured party in damages.

GLEESON CJ:   Do I gather from what you say that under the form taken by section 138, at some of the times material to this matter, the entitlement to indemnity was, as it were, contingent upon a judgment being made as to the degree of responsibility of the party bound to indemnify?

MR GORTON:   Yes, that was and still is always a relevant factor.  I am just geting a note that we are getting copies of the earlier section 138 made.

GLEESON CJ:   Thank you.

MR UREN:   Your Honours, it is in our list of authorities.  It should be in our bundle of documents.

GLEESON CJ:   Thank you.  How is it then a liquidated claim if, at the time the claim is made, there is an outstanding judgment to be formed as to degree of responsibility?

MR GORTON:   It is liquidated to the extent, under the current form of the section, in the sense that there is a right to recover the full amount of compensation paid subject to a maximum limit, so that in the current form and the form of the section that was considered by the court below, the amount of the indemnity was the amount of compensation paid subject to a cut off being arrived at and to determine that cut‑off question it was still necessary to consider the notional quantification of hypothetical damages and the degree of responsibility for the occurrence of the injury.  So that is an element to produce a ceiling on the amount of the indemnity.

KIRBY J:   But the fact that there is a ceiling cannot alter the characterisation of the amount that is the subject of the claim for indemnity.  The question is whether the fact that you have to make the assessment of an issue as to apportionment alters it from a liquidated sum to some other amount for which indemnity is being claimed, some other character.

MR GORTON:   As the section stands now, it is still a matter in fixing that maximum limit that an assessment of the degree of responsibility or apportionment has to be made to fix the maximum limit.

GLEESON CJ:   Well, the alternative possibility to a liquidated claim is an unliquidated claim.

MR GORTON:   Yes.  Yes, your Honour.

GUMMOW J:   Are not all claims either one or the other?

MR GORTON:   That is what we submit, that they are.  An action for money at common law either has to be in the broad terms of the word “debt” or “damages”.

GLEESON CJ:   Well, the difference in some systems of procedure used to reflect itself in whether you could issue a specially endorsed writ or not and that, in turn, affected whether the defendant had to verify a defence.

GUMMOW J:   And whether you can get a default judgment, could it not?

MR GORTON:   Yes, so that they had procedural significance, but nonetheless, the scope of the common law in money recovery would be quantified as either debt or damages.

GLEESON CJ:   But in an action commenced by a specially endorsed writ under the old procedure, to get a default judgment in the absence of a defence, all you had to do was swear an affidavit verifying the debt.

MR GORTON:   Yes.

GLEESON CJ:   How could anybody swear such an affidavit in a claim such as the present?

MR GORTON:   Before the court makes a decision as to the quantum of the hypothetical damages and the apportionment it could not be done.  After that decision is made, if payments continued, it could be done.  Now, this case that is before the Court now was one where a man was injured many years ago and continues to be injured and entitled to compensation.

GLEESON CJ:   But is not the question whether the claim is liquidated or unliquidated tested at the time you make the claim?

MR GORTON:   Yes, your Honour, and then, assuming it is not on a specialty or a deed and assuming it is not one of the original causes of action for debt, it will be determined at that time with, in many cases, a requirement that the quantum be actually established by evidence as to what is a reasonable amount or what is a reasonable time or a reasonable charge.

KIRBY J:   Yes, but is not the problem that, at the time you made the claim, Justice Cummins had not determined the apportionment.  Therefore, at that time it is not a debt.  It does not answer the question whether it is a debt or damages because, coming to this problem from a New South Wales background, it seems that that covers the universe but there is a whole series of Victorian cases that suggest there is a mysterious view of it in Victoria that says otherwise.  They have to be enlightened on that mystery.

MR GORTON:   They are not actually limited to Victorian cases that do that, your Honour.

KIRBY J:   I saw there were an awful lot of them.

GLEESON CJ:   I am not sure that in New South Wales the world is divided into debts and damages but what it is divided into is liquidated and unliquidated claims.

KIRBY J:   The Act uses “debt or damage”, does it not?

MR GORTON:   This Act uses “debt or damage” as many of the rules of the court in respect of obligations of one sort or another use the term “debt or damage”.

GLEESON CJ:   But nobody is suggesting it has to be either a debt or a damages claim.  Nobody is suggesting that if it is not debt it is damages.

MR GORTON:   We are, in this case, unless ‑ ‑ ‑

GLEESON CJ:   In this case, but there are forms of unliquidated claim that are not either debt or damages, are there not?

MR GORTON:   Not a common law action.  There are common law actions for recovery of property and that sort of thing that do not sound in debt or damages but when it becomes a money claim it is proper to describe the money that is being recovered as necessarily being either debt or damages.

GUMMOW J:   Is that phrase used in other sections of the Supreme Court Act?

MR GORTON:   No, your Honour.

GUMMOW J:   Is this the only section in which the phrase is used?

MR GORTON:   In the Supreme Court Act, I believe yes it is the only section.  It is used, or a very similar phrase is used in English legislation and is used in various rules of court.

GLEESON CJ:   Well, what is your case?  Are you saying it is a debt or damages?  Which one?

MR GORTON:   We are saying, within the meaning of that phrase, it is within it.

GLEESON CJ:   You are not sure whether it is debt or damages?

MR GORTON:   No, and if it is not debt, it is damages.

KIRBY J:   As I understood your written argument it is that your primary contention is that it is a debt but if it is not a debt it is a debt or damages.

MR GORTON:   Yes, your Honour.

GLEESON CJ:   Now, what is your answer to the proposition that at least it cannot be a debt because it is unliquidated?

MR GORTON:   The answer to that, if there is an answer to that and it is not absolutely certain there is, is to be found in authority in The Aldora [1975] QB 748, in our list of authorities and at page 751 ‑ ‑ ‑

KIRBY J:   I take it from that answer that if there is an answer that you are not very confident of this first proposition, that really your eggs are in the basket of damages.

MR GORTON:   Yes, that is correct, or in the basket that says when you put the two words together in this section, whatever they might mean on careful analysis of each word, together they mean all money claims.  In The Aldora what was said, dealing with the interest provisions in the English legislation, which is set out on page 751 in quite similar form to section 60 – not identical by any means but in a similar form:

“In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest –

and then it deals with rates and so on.  The judgment proceeds –

The question which has to be decided, therefore, is whether a claim for salvage is a proceeding “for the recovery of any debt or damages” within the meaning of this subsection or not.

KIRBY J:   Now, this is Justice Brandon.  He went on to become Lord Brandon.  He was quite a whip in shipping matters, I believe.

MR GORTON:   Yes, he has made a further pronouncement with the approval of the rest of the ‑ ‑ ‑

KIRBY J:   Yes, I saw that.  We have had a lot of Lord Brandon this week.

GUMMOW J:   He is making the point, really, that a statute like the Supreme Court Act has to deal with all the streams which flow into the Supreme Court Act, admiralty, breaches of trust, common law actions in tort and contract.

MR GORTON:   Yes, your Honour, and for that reason or because of that approach he is giving debt within this section ‑ ‑ ‑

GUMMOW J:   You take a comprehensive view of debt or damages.

MR GORTON:   Yes, and he is here taking a view of debt which allows it to include unliquidated amounts.

GLEESON CJ:   Now, that is not consistent with what Chief Justice Knox appears to have said in Mallinson, is it?

MR GORTON:   What he says in Mallinson is that the cause of action is in debt.

GLEESON CJ:   What he says in Mallinson is “where the amount is liquidated” the cause of the debt is appropriate. 

MR GORTON:   Yes.

GLEESON CJ:   Lord Brandon would say whether the amount is liquidated or not.

MR GORTON:   Yes.

HAYNE J:   Though, as it happens in Mallinson the claim was for a liquidated sum, was it not?

MR GORTON:   Yes.

HAYNE J:   It was a claim for wages.

MR GORTON:   Yes, your Honour.

GLEESON CJ:   It may be you can reconcile the two statements by saying that Mr Justice Brandon’s proposition was a proposition about the meaning of the statute and Chief Justice Knox’s proposition was a proposition about a form of action.

MR GORTON:   Yes, but certainly we would submit that in Mallinson the attention is directed as to the cause of action, rather than the description of what is to be recovered.

GUMMOW J:   But does not someone have to look up Shepherd v Hills and what it says about it and Bullen & Leake and so on?  Has anyone done that?

MR GORTON:   Shepherd v Hills is in our list of ‑ ‑ ‑

GUMMOW J:   That is where it all starts, from Baron Parke, is it not?

MR GORTON:   Yes, your Honour.  Shepherd v Hills is in the list of authorities that we have put before the Court.

GUMMOW J:   In particular, what comes out of Shepherd v Hills where the statutory obligation is one that cannot be characterised as a debt but nevertheless an action lies – a special sort of action on the case, I guess.

MR GORTON:   Again, Shepherd v Hills dealt with money that was being imposed in a way that allowed it to be calculated, depending on the tonnage and so on and therefore, it does not address the problem of what would happen if the debt or the statutory obligation was shown to be an unliquidated sum, as that term is ordinarily used.

GUMMOW J:   That is right but consistently with what has been said in Shepherd v Hills there would still be an action.

MR GORTON:   Yes, undoubtedly.  That is the line of authority and what is really conceded here.

GUMMOW J:   That is right and the question then is how was that action pleaded?

MR GORTON:   Yes.

GUMMOW J:   Not being an action for debt, how was it pleaded?  Someone has to go to Bullen & Leake to find out, I guess.

MR GORTON:   I do not know that we have done the Bullen & Leake inquiry but it is certainly pleading for money owing under a statute or pursuant to a statute.

GUMMOW J:   Yes.  I am sure they thought about these things.

MR GORTON:   Which does not take it very far as to whether that money is properly to be categorised as damages.

GUMMOW J:   Well, it does, because the rules of court at the same time as all this is developing certainly fixed on this notion of liquidated and unliquidated, default judgments and pleading - and verification of pleadings and so on.

MR GORTON:   Yes.

GUMMOW J:   And this phrase “debt or damages” in the section that Lord Brandon was speaking of in The Aldora, which was section 3 of the English Act of 1934, that was not the first time that was an English section either.  I am sure that has antecedents as well.

MR GORTON:   Section 34 ‑ ‑ ‑

GUMMOW J:   Section 3(1), that he is talking about in The Aldora ‑ ‑ ‑

MR GORTON:   Was introduced in 1934 and replaced two sections which were similar to sections – what used to be 78 and 79 of the Victoria Supreme Court Act, which were limited to debt and some certain and had a fair amount of legal paraphernalia restricting the way in which they were enforced and those sections were introduced into the law as interest provisions in what is called Lord Tenterden’s Act.  They were taken out of the English legislation when section 3 was put in, in 1934, it being a section intended to cover the field of interest and to change the earlier provisions.

GLEESON CJ:   Should we not actually be looking at Hopkins v Swansea.  If you look at Chief Justice Knox’s statement, he cited Shepherd v Hills for the proposition that he quotes and he does not seem to elaborate upon that proposition and then he says:

where the amount is liquidated the action of debt is appropriate –

and cites Hopkins v Swansea for that.  Have you looked at that case?

MR GORTON:   No, we have not, your Honour, I do not think.  We have not looked at that, your Honour.  We did not look at it because we thought that that was not a controversial proposition and it did not occur to us that we needed to research further into it as to why it was, even though it was not controversial.

KIRBY J:   There is no doubt that this phrase has a history, though I notice that the provision that was considered by Justice Brandon was in permissive terms:

the court may, if it thinks fit –

add interest, whereas your statute has “must”.

MR GORTON:   Yes, your Honour, with a right, in appropriate circumstances, not to ‑ ‑ ‑

KIRBY J:   That is true, yes.  But if one is looking, as it were, starting with the statute given that it has this history, then I think the point made earlier by Justice Gummow is a very telling one, that this is a statute which is designed to deal with the whole range of matters that come before the Supreme Court of Victoria, which is the superior court in the State and therefore you start with the inclination, I would think, that “debt or damages” is going to be a phrase that is going to encompass a very great range of proceedings brought in that court.

MR GORTON:   Yes, your Honour.

KIRBY J:   And really you would need a bit of persuasion, given that it has been added the “must” so there is this prima facie entitlement to interest.  You would have to have pretty clear authority that told you the phrase was not to be given the ample meaning which, on its language, it appears to warrant and even then, even if there were some English authority or old authority that said otherwise, you would have to think of good reasons why you would cut down on the policy of Parliament, which is apparently a general policy that, prima facie, you get interest on recoveries in the Supreme Court.

MR GORTON:   That is a submission that ‑ ‑ ‑

KIRBY J:   Whether they are labelled “debt” or whether they are labelled “damages”.

MR GORTON:   We would, with respect, adopt what your Honour has said as a submission.

KIRBY J:   What other recovery could you have of a money sum in the Supreme Court that was not debt or damage?  You could have a declaration.  You could have an injunction.  You could have prerogative relief type remedies.  You could have, I suppose, orders to tribunals and so on but if it is a money sum it would seem to fall within a debt or damages for the purpose of a general interest provision carrying forward the policy of Parliament, recognising, I suppose, the dangers of inflation that people are entitled to have, prima facie, interest on their recovery.  I think your starting point should be the statute.

MR GORTON:   Yes, your Honour.  One area, perhaps, that might require some reflection on what your Honour has just said is the area where there is a claim made to enforce an indemnity under a policy of insurance, not for breach of the policy but just for the payment of the indemnity sum.  Now, that has been categorised as being a claim for damages as well but it is really in that sort of approach that it appears our court of ‑ ‑ ‑

KIRBY J:   I might be able to be shifted from this, but I would have thought that if it is a money sum as a result of a judgment of the Supreme Court of Victoria, for the purpose of section 60 it is a debt or damages. I cannot, at the moment, see why it would not be one or other of them.

MR GORTON:   Your Honour is enunciating the proposition that we would wish the Court to adopt, that that is what section 60 means, that is its intention and that there are a number of reasons why that intention can be seen from the enactment of it and from the interpretations ‑ ‑ ‑

KIRBY J:   After all, you have to pay the money and you are out of pocket and your money could be put to other uses.  You are therefore losing the use of your money and that is why interest is normally provided.

MR GORTON:   Yes, your Honour, and that is consistent with the – if I can find it - again approach in England in relation to the section there as to interpretation of damages there ‑ ‑ ‑

KIRBY J:   Are you referring to anything other than The Aldora?

MR GORTON:   Yes, to BP Exploration Co (Libya) v Hunt.

KIRBY J:   What number is that.

MR GORTON:   No 12.  We have not put in the whole of that case but rather the element of the judgment that relates to it.

KIRBY J:   This really bears out what Justice Gummow said earlier, that the words of “debt or damages” conveyed any sum recoverable and whether at common law or in equity or under a statute.  Presumably this was also a general entitlement to damages, was it?

MR GORTON:   This claim related to a payment under a statute for a frustrated contract of a just sum and it was a statutory amount where the oil exploration and contractual rights had taken place in Libya and the Libyans had confiscated the field.

GLEESON CJ:   We do not have the entire report here.  It is perhaps not surprising that Lord Brandon adhered to the view he had expressed in The Aldora, but what may be of more significance is, I presume, the other members agreed with him.

MR GORTON:   They all agreed in his judgment, your Honour.

GUMMOW J:   Did Lord Wilberforce give a judgment or just agree?

MR GORTON:   No, they all agreed with what Lord Brandon had said and to the extent they gave a judgment it was, “We agree with what Lord Brandon says”.

KIRBY J:   He had by that time become the Lord’s expert on interest.

MR GORTON:   And one hopes still persuasive in Australia.

GUMMOW J:   Now, the primary judge was Lord Goff, was it?

MR GORTON:   Yes.

GUMMOW J:   Was the point taken before Lord Goff when he was the trial judge?  Is that reported?

MR GORTON:   I believe it was taken before him as well.

KIRBY J:   It appears that his approach was endorsed by Lord Brandon.

MR GORTON:   Yes, your Honour.

KIRBY J:   A pretty good endorsement.

MR GORTON:   The result of these, we submit, is that in the English legislation and the approach taken to it, debt or damages, without having to qualify which money sum you actually fall within, created an entitlement to interest provided there was the other qualifications that allowed the discretion to be exercised in favour.  Many of these, or both The Aldora and BP Exploration v Hunt, were decisions that were made after the first introduction into the Victorian legislation of the predecessor of section 60.

KIRBY J:   Do we have somewhere conveniently, a history of section 60 in Victoria?

MR GORTON:   It is set out in ‑ ‑ ‑

KIRBY J:   Presumably it went back to colonial times.

MR GORTON: Section 60 did not go back to colonial ‑ ‑ ‑

KIRBY J:   Well, its predecessors.  There would have been entitlements to interest.

MR GORTON:   There were entitlements to interest.

GUMMOW J:   There was none at common law, was there, so you needed these statutes?  There was none at common law.  There was in equity in some circumstances, maybe in admiralty too.

MR GORTON: No, there was none at common law. There were sections in the Victorian Act which were previously sections 78 and 79 which are quite similar to the current sections 58 and 59, quite similar but also significantly amended. Section 78 dealt with the right of interest on a debt or sum certain but had numerous other restrictions imposed on when interest could be given and section 79 dealt with actions for trover and trespass to goods, I think it is, and those sections of the rights in substance have been maintained in sections 58 and 59, and section 60 gives rights which are additional to any rights given by the earlier legislation. So it was intended as an expansory section when it was introduced first as section 79A.

KIRBY J:   Is there a good little potted history of interest law in the Chief Justice’s Law Reform Committee Report?

MR GORTON:   There is a potted history in Braeside Bearings, which is in the respondent’s authorities.

MR UREN:   Would the Court be assisted by a bundle of the statutes at this stage?

GLEESON CJ:   We will let Mr Gorton put it as he wishes, Mr Uren.

MR GORTON:   And also in the respondent’s authorities there is a potted history in CML v Giannarelli by Justice McInerney.  It is a longer potted history than that by Justice Callaway in Braeside Bearings Ltd v Brignell.

GUMMOW J:   What is the citation of that?

MR GORTON:   Braeside Bearings is [1996] 1 VR 17 and the judgment of Justice Callaway, the passage starts at page 22.

GUMMOW J:   Is that on anyone’s list?

MR GORTON:   Yes, it is on the respondent’s list of authorities.  I am sorry, I misunderstood.  It is in their submissions but not in their list of authorities.  We had made a false assumption.

HAYNE J:   We have Giannarelli but not Braeside.

MR GORTON:   We will get some copies made of Braeside to be handed to the Court.  Giannarelli, the history is between pages 464 and 466. The citation, if I have not given it, is [1977] VR 463.

HAYNE J:   It goes back to Lord Tenterden’s Act and recovery of debts or sums certain, does it not?

MR GORTON: Yes, well, the interest rights do, section 60 does not.

HAYNE J:   Yes.  No, but the first interest provision is Lord Tenterden ‑ ‑ ‑

MR GORTON:   Yes, your Honour.

HAYNE J:   It is 3 & 4 William IV, Chapter 42, and that was:

upon all debts or sums certain, payable at a certain time or otherwise, the jury . . . may, if they shall think fit, allow interest ‑ ‑ ‑

MR GORTON:   Yes, that was limited and I believe, subject to correction always, that there was also a right of interest given at that time in relation to trover.

HAYNE J:   Yes, section 29 may:

give damages in the nature of interest, over and above the value of the goods . . . in all actions of trover or trespass de bonis asportatis, and over and above the money recoverable in all actions on policies of assurance.

The claim under the statute is said to be in the nature of damages and must be assessed by the jury; Berrington v Phillips 1 M&W 48.

MR GORTON:   Now, those sections remained in force in England until 1934 when they were repealed and replaced by section 3, the section considered by Lord Brandon.

KIRBY J:   Does the amendment to the Victoria law, which apparently followed Lord Tenterden’s Act until quite late to include debt or damages following, presumably, the pattern in section 3, indicate a legislative intention to broaden the entitlements upon which interest would be levied or could be recovered?

MR GORTON: Yes, your Honour, it did, and reference to section 60 and 58 and 59, which are the substitutes for 78, 79 and 79A,which were the section numbers in 1962 when this was introduced, the sections show, because section 58 remains as a section giving a right of interest for debt or sum certain and that section 60 gives a right of interest which is not to replace that section. So where that section applies, it continues to apply.

Section 59 has remained in the Act for trover and trespass and for action to enforce indemnity under a contract of insurance and when that section applies, section 60 gives way to it by reason of section 60(2)(e). So that section 60 is additional to any rights of interest that were given under section 58 and 59 and certainly then intended to expand the area in which interest could be given.

KIRBY J:   Is there any English authority that takes a different view of section 3 that you are aware of since the House of Lords passed on it?

MR GORTON:   Not that we are aware of.

KIRBY J:   That seems to be the historical background and the authority in England on the common source seems to favour a broad view of it and looking at the old Act, contrast seems to support that view.

MR GORTON:   Yes, and in the judgment of Justice McInerney in CML v Giannarelli he sets out the Chief Justice’s Law Reform Committee Report, or an extract from it, that led to the change in 1962 in Victoria.  He there quotes at page 466 and says:

When the Chief Justice’s Law Reform Committee presented its report in March 1960 it expressed the view that the situation established in Scotland by the 1958 Act was more satisfactory than that under the English Act of 1934 “in two important respects, namely that the distinction is drawn between ascertained and unascertained sums and that different rules are applied to the period before, and the period after, the commencement of proceedings”.  The report went on to add:- “Upon an ascertained sum it seems just that ordinarily interest should run from the time of demand for payment.  But if legal proceedings are necessary to ascertain the amount to be paid, and the plaintiff refrains for a period from bringing those proceedings, it does not seem unreasonable to leave him to bear his own loss in respect of that period of delay and to say that that interest shall not begin to run before he starts the necessary proceedings.”

So that the old money claims, subject to compliance with fairly strict rules for getting interest, applied interest from the date the debt became due or the property had to be returned. This amendment of section 79A, now section 60, created a right to interest from the date proceedings were issued subject to a discretion in the court to disallow it. That was much more akin to the Scottish position than it was to the English position, even after section 3 was introduced. That passage is also quoted by Justice Callaway in the other judgment – we have six copies of it.

GUMMOW J:   Of Braeside?

MR GORTON:   Yes.

KIRBY J:   If this construction is upheld, is that enough to get you home to the orders you are seeking?

MR GORTON:   Yes, your Honour.  It is not necessary, for our point of view, for this claim to be identified as being a debt or damages as long as it is a money claim that falls within the phrase “debt or damages”.

KIRBY J:   There are, as has been pointed out to you, difficulties in describing it as a debt.

MR GORTON:   Yes, and we concede there are difficulties in doing that but some of the authorities say that it can be looked at within the meaning of this phrase, as debt.  That is The Aldora.

GLEESON CJ:   That is what Lord Brandon said, did he not?

MR GORTON:   Yes.

GLEESON CJ:   He said it is not damages.  The claim in his case, I thought he said was a debt.

MR GORTON:   In Aldora?

GLEESON CJ:   Yes.

MR GORTON:   He treated it as a debt though unliquidated.  In BP v Hunt he treated it as the amount payable there being an unliquidated amount payable under a statute as damages.

GUMMOW J:   Do we have anywhere the relevant text of the Chief Justice’s Law Reform Committee that is referred to by Justice Callaway in Braeside?

KIRBY J:   I think that is in the respondent’s materials.

MR GORTON:   We have unfortunately left the text of that in the motel room but we can supply copies of it.

HAYNE J:   We have copies, I think, Mr Gorton.

MR GORTON:   It is in the respondent’s materials, I understand.

GUMMOW J:   Yes, thank you.

HAYNE J:   The argument in Hopkins v Swansea, the argument not the judgment, as appears at ER 1575, was that the rule of law is that wherever a pecuniary benefit is given by statute to an individual, he may sue for it in debt.  That is, the argument that was under consideration in Hopkins was that the relevant cause of action was the cause of action for debt, a question that may well differ from whether it is a debt or sum certain within Lord Tenterden’s Act.

MR GORTON:   Yes, your Honour.

GUMMOW J:   There is indebitatus assumpsit running around in this debate, too.

MR GORTON:   These days it seems that the word “debt” includes indebitatus assumpsit counts, though it would not have, of course, initially.  It is also, initially, the indebitatus assumpsit accounts were really actions for damages, it seems, rather than a fixed sum that quickly became treated as liquidated sums.

HAYNE J:   But as the Chief Justice said earlier, we may need to keep distinct the question, “What is the cause of action?”, and, “What is the proper characterisation of this recovery for the purposes of a provision like section 60?”.

MR GORTON:   Yes.  There is to be found, and there is an error we perceive in something that has been said by Justice Menhennitt in one of the cases, that he draws that distinction and says you must draw the distinction between what is the tort and what is the cause of action for tort, and that distinction can properly be drawn here.  What we urge the Court to do is say that, whatever the cause of action might properly be ascribed at, the amount of money that is recovered and to be paid is to be categorised within the compendious phrase “debt or damages”.

GUMMOW J:   Do you have a reference to that decision of Justice Menhennitt?

MR GORTON:   If your Honour would just give me a moment to track it down.  It is ‑ ‑ ‑

GUMMOW J:   It is bound to be a detailed consideration, I should think.

HAYNE J:   If we put that together with Justice McInerney’s judgment, we should have all of the basic material available to us, I would have thought.

MR GORTON:   Well, there is, of course, Alexander v Ajax with Justice Sholl.

HAYNE J:   Justice Sholl, so the three of them.

MR GORTON:   Philip Morris Ltd v Ainley [1975] VR 345 – we will have copies of that made as well. It is again, I think, referred to earlier but what he said, in this respect, at page 348, was:

In considering the nature of an action of a tort it is, I think, necessary to draw a distinction between the source of the right being enforced and the cause of action by which the right is enforced.  Thus it is stated in Salmond on Torts –

and it does progress in a way that this Court does not want me to read at the moment, I would not have thought.  Having referred the Court to this case, we want to say that he makes a statement at page 350, that an action on the predecessor of section 138 under the Workers Compensation Act in Victoria, he says:

The next question is whether it is an action in which damages are claimed by the plaintiff.  In my opinion it is not.  It is I think a statutory right of action to recover not damages but a statutory indemnity.

There he is looking at the right of action, the cause of action, rather than the categorisation of the money that is recovered.

KIRBY J:   If you get up on this argument, all that is left then is the expressio unius argument that is raised in the contention concerning section 138 of the Accident Compensation Act of Victoria.  That may be something you would prefer to deal with in reply, I suppose.

MR GORTON:   We think it is appropriate to do that if we might.  We do think, and submit, that what was said by this Court in Crisp & Gunn Co‑Operative Ltd v Hobart Corporation (1963) 110 CLR 538 at 542 and following – it is No 8 in our list of authorities – is entirely consistent with the proposition that we are putting. That was a case where there was compulsorily acquired land and a claim by the owner for compensation for the compulsory acquisition of that land and there were questions as to what the market value was and what the value of use of the land and what other loss there was, and there was a judgment ultimately given for £31,500, following the initial claim of £180,000.

It became a matter of what was the effect of a payment into court in relation to that verdict, and payment into court could be made in actions to recover a debt or damages.  It was held, at page 543, that a claim of that type was a claim for debt or damages within the meaning of the rules relating to payment into court.  It is not, of course, four-square with what is going on here as far as the background and processes, but the approach was taken that this sort of unquantified amount which was not the subject of a cause of action for a wrong in tort or contract, did fall within the term “a claim for debt or damages”.

GLEESON CJ:   Mr Gorton, before you go any further, it has just occurred to me – and I am not seeking an expression of sympathy – that I hold some shares in the parent company of FAI Workers’ Compensation (Victoria) Pty Ltd.  There is no need to take around the hat and I do not feel inclined to disqualify myself, but I mention that to you.

MR GORTON:   I can confidently say that that makes no difference to this process because the funds of FAI, for this purpose, are the funds of the Victorian Workcover Authority and the company that your Honour might be referring to will not benefit or suffer any detriment by the result of this case.

GLEESON CJ:   Thank you, Mr Gorton.

HAYNE J:   Unlike its shareholders.

MR GORTON:   Could I take up some matters that my junior tells me I must deal with before going any further?  The principle in Shepherd v Hills can be traced back to Bishop of Rochester v Bridges [1831] 1 B&Ad – I am sorry, I apologise for not having at my fingertips the proper name ‑ ‑ ‑

GLEESON CJ:   Barnewall and Adolphus.

MR GORTON: ‑ ‑ ‑ 847 and 109 ER 1001, particularly at page 1006.

GUMMOW J:   Do we have copies of that?

MR GORTON:   In a moment, your Honour.

GLEESON CJ:   You can hand them up later if it is not convenient at the moment.

MR GORTON:   Yes, thank you, your Honour.  In respect of inquiry as to whether “debt or damages” appears in any other Victorian Act, it does not appear again in this Act but it does appear in, apparently, section 14(2)(b) of the Commercial Arbitration Act and section 6 of the Penalty Interest Rates Act.

KIRBY J:   What is the name of that Act, the second Act?

MR GORTON:   The second one, Penalty Interest Rates Act.

HAYNE J:   Which reference there is not surprising because it is under that Act that rates are struck periodically for application under the Supreme Court Act interest provisions.

MR GORTON:   And it appears in Rule 13.14 of the rules relating to set‑off of the Victorian Rules of Court.

CALLINAN J:   Mr Gorton, do I understand your submission to be that because the money is recoverable under a statute the money is a debt?  I know you make a further submission, but your primary submission is that, is it not?  Because you can infer from the provision which gives your clients an entitlement a right to sue for it, you say that the next step is that that means what you are suing for is a debt.  Is that right?

MR GORTON:   It is one possibility that is open on the early authorities ‑ ‑ ‑

CALLINAN J:   But that is your primary submission?

MR GORTON: Well, the primary submission, if I could put it the other way round, is that the money we are suing for falls within the phrase in section 60 of “debt or damages” without being compelled to say it is debt, but then we say, yes, because it is a payment under a statute, even though it requires quantification, it would properly be recovered under a form of action for debt.

CALLINAN J:   Well, on one view, in Queensland your right to sue for damages, sue in defamation, is a statutory remedy and I am not sure that that may not be the position in New South Wales under the Defamation Act there.

MR GORTON:   There is the equivalent view expressed that the right to recover damages for wrongful death can be called a right under an Act in Victoria and certainly interest is payable in those.

CALLINAN J:   I understand that, but you would not characterise either of those claims in defamation or for wrongful death, as claims for a debt would you?

MR GORTON:   No.

CALLINAN J:   No, and section 138 is expressed disjunctively.  I do not know whether any of this is against you, but at the moment I have a little difficulty in seeing how it can be said that merely because your remedy is, in effect, a statutory one, or depends upon the statute, it is a remedy in respect of a debt as opposed to damages.

MR GORTON:   Well, that is not a submission that we have to make out and not a submission we make with sort of unyielding ferocity.

CALLINAN J:   But it is a submission you do make.

MR GORTON:   It is a submission that we make.  If it is not a debt, it being a claim under a common law – supplied by common law to recover money, if it is not a debt, it must be damages.

CALLINAN J:   Your principal argument is that the reference to debt or damages strongly indicates a statutory intention to be comprehensive.

MR GORTON:   Yes, your Honour, and that - well, I have already made the argument, in part.  That was what was being intended by the advisers to the government in 1960 and what appears from an analysis of the section and the way it operates and the rationality of excluding this little bit.

CALLINAN J:   What about the expression, though, “damages in the nature of interest” in section 60?

MR GORTON: And 59, yes, not in 58, though it has been said that interest in section 58 is to be regarded as damages. Yes, I am sorry I interrupted your Honour.

CALLINAN J:   Does that not assist you, “damages in the nature of interest”, the use of the word “damages”?

MR GORTON:   If and in so far as interest would ordinarily be looked at as something other than damages ‑ ‑ ‑

CALLINAN J:   It seems to be almost statutory inclination to treat interest as being in the nature, as it were, of Hungerford‑type damages almost.

MR GORTON:   Yes.

CALLINAN J:   Do you understand what I am putting to you?

MR GORTON:   Yes, your Honour, I think so.

CALLINAN J:   I just do not know why you do not put more weight in your argument upon the expression “damages in the nature of interest”.

MR GORTON:   It was not an argument that had percolated through my mind.  Now that your Honour has enunciated it, we would adopt that argument.

KIRBY J:   It may be that the argument on the other side is that one is a pre‑condition to entitlement, that is to say, an application in any proceeding for recovery for debt or damages, that that is the pre‑condition.

MR GORTON:   Yes.  You have to get the pre‑condition but ‑ ‑ ‑

KIRBY J:   But that that is separate from what then follows, which is that you get interest which Parliament declares to be in the nature of damages.

CALLINAN J:   Well, no, it is the other way round.  It is give damages in the nature of interest.  It is a curious way of expressing it.

HAYNE J:   But may it not have to be linked (a) to its history and (b) to where it is now found. Section 59 deals, does it not, with trover and other like claims?

MR GORTON:   Trover, trespass and recovery of an indemnity under a policy of insurance.

HAYNE J:   And stems ultimately from section 29 of Lord Tenterden’s Act, where you were given damages in the nature of interest when you recovered damages for trover.  Now, they were not interest, but they were damages in the nature of interest in that they were damages for the consequence of being held out of the value of your goods.  They were akin to, like, in the nature of, interest, but they were not interest.  They were simply additional damages provided by the statute.

MR GORTON:   Yes, but even so, there is some strength in the proposition that there is a recognition in the very section that we say gives “damages” a broad meaning, that interest falls within or might fall within that concept of damages and ‑ ‑ ‑

CALLINAN J:   Why use the word “damages” anyway?  I mean, I acknowledge the history, but you might think that the provision would simply be, give interest on the sum recovered, or something of that kind, rather than ‑ ‑ ‑

HAYNE J:   Perhaps because it was the jury that was originally to assess it as part of its damage assessment function.

CALLINAN J:   In trover and like causes.

HAYNE J:   Yes, yes, it was a jury question under section 29, as I think all interest questions may have been under Lord Tenterden.

MR GORTON:   In so far as there is any need or value in an authority about recovering indemnity under a policy and that being treated as damages, rather than debt, where there is not an action for breach of policy ‑ ‑ ‑

HAYNE J:   That is taking you well away from the current context, is it not?  It is an altogether different claim in a different context.  What do we get out of examining that?

MR GORTON:   We get a statement that it is accepted, at least in some authorities, that a claim of an indemnity of that sort is properly categorisable as damages.

GLEESON CJ:   Well, just give us a reference to it.

MR GORTON:   They are in our reply.  There is Jabbour and Another v Custodian of Absentee’s Property which is referred to in Alexander v Ajax Insurance and then referred to again in CIC by this Court.  Save for the point about the scheme of the Act preventing there being any entitlement, there is very little more that I can usefully say.

GLEESON CJ:   All right, thank you, Mr Gorton.  Yes, Mr Uren.

MR UREN:   If the Court pleases.

KIRBY J:   Mr Uren, we are not concerned with the money sums, are we?  There is no debate about the sums that were dealt with in the court below.

MR UREN:   No, there is not, your Honour.  On the question I think your Honour Justice Gummow raised about what about Shepherd v Hills, in Shepherd v Hills, the relevant statute in fact did say that the sum which was referred to could be recovered in an action of debt and that generally is why the action lay ‑ ‑ ‑

HAYNE J:   Mr Uren, the acoustics in this courtroom are very bad, at least from my point of view, you will need to speak up if I am to hear you.

MR UREN:   I should say your Honour is not the only judge to tell me that my acoustics are not entirely satisfactory, but I will try and do better. 

GUMMOW J:   It is a particularly local problem.

MR UREN:   Shepherd v Hills, in fact, does not determine the question of whether an action for debt would or would not lie because the section which gave the benefit, in fact, provided that an action of debt would lie but for the benefit which was to be recovered.  The case which, in fact, does recognise or hold that a debt would lie to recover a sum which is payable under the statute is Hopkins v Burgesses of Swansea, which is in our list of authorities, but the reason we referred to that case was that our learned friend’s first submissions, that is to say the written ones, seem to assume that because a right of action lay, therefore, the sum which was recoverable under that right of action was a debt.

Now, that is a non sequitur, in our submission, in terms of the cases, merely to say that a right of action lay does not determine the nature of what it is which was sought.  When one looks at the cases which relate to what may be sought as a debt, it appears that those cases do require that the sum sought be liquidated and then in that regard refers to Mallinson’s Case and to SCI Operations in which Mallinson’s Case was referred to.  In this case I think special leave was granted on the basis that the court below had not perceived the operation of the correct principle, but the operation of the correct principle, in our submission, depends upon whether the claim which was made is, in fact, a claim for a liquidated demand or not, in so far as it sought to put the argument under the heading of “Debt”.

Now, in so far as we had sought to put the argument under the heading of “Damages”, this was not a matter which we thought was raised by the submissions as they were originally made, that is to say, the submissions originally made to this Court in writing.

GLEESON CJ:   As I understand one of the ways in which Mr Gorton puts his argument, it is that although there are certain contexts in which one would deny the character of debt to a claim of this kind and although there are certain contexts in which one would deny the character of damages to a claim of this kind, in the context of section 60, the expression “debt or damages” ought to be construed to cover all money claims.

MR UREN:   To which our answer is that “debt or damages” in section 60, in our submission, carries the meaning which it has always been understood to have, that is to say, a debt is a liquidated demand which is sought to be recovered and damages are sums which are sought to be recovered as compensation for a wrong done to the person who is making the claim and unless the matter falls within one of those two categories, it is not covered by section 60. Now, this requires reading section 60, not in some sort of expansive “all moneys” sense, but in the sense in which it was understood at the time at which it was passed and the sense in which, in our submission, it should still be understood.

The effect of our learned friend’s argument is this: to say that section 60 bears the same meaning as section 51A of the Federal Court Act, and also of the relevant statutes of the other States and Territories in this country, that is to say, it is basically an “all moneys” provision.  But it is, in our submission, not an “all moneys” provision and was not intended to be an “all moneys” provision, as appears from the history of the section to which we have referred.

KIRBY J:   But you want to start, as most members of the Bar table always do, with a lot of old cases, instead of starting with the statute.  What is your answer to Justice Gummow’s point, that this is a provision in the Supreme Court Act designed to apply to a whole range, a vast range, of different cases that come to the Supreme Court of Victoria on which Parliament has taken away the word “may” and inserted the word “must”, obviously for a policy purpose, which is that in all of those claims you are going to recover, if it is susceptible to interest, the money to compensate you for being kept out of your money?  What is the answer to that in statutory terms?

MR UREN:   We have two answers.  One is we thought Justice Gummow was actually supporting us, but we may not have been correct in that assumption, but we thought that what his Honour was saying was that the English provision is one in which a whole number of jurisdictions are brought together into one statute and, therefore, it is not surprising that Lord Brandon, as he now is, took the view which he took in the Salvage Case because of the fact that the section is meant to cover a multitude of jurisdictions, admiralty and otherwise.

KIRBY J:   That is right, but their reasons, it seems to me – we are not here to support either of you, we are just here to find out what the statute means.

MR UREN:   Yes, I understand that, your Honour.

KIRBY J:   But it seems to me that one infers from that that it is designed to cover a whole universe of the recovery of a money sum which is susceptible to interest.

MR UREN:   Yes, but that requires a decision to be made as to what it is intended to do in the first place.  Now, if one comes to the conclusion ‑ ‑ ‑

KIRBY J:   That is right, but do you not take from the context that it is designed to cover money recoveries in the Supreme Court which can be of a vast variety, that the context speaks for treating “debt or damages” as covering the field?

MR UREN:   The answer to that must be no, in our respectful submission.  If I could go back to the Salvage Case, that was ‑ ‑ ‑

KIRBY J:   But you want to go back to the old English cases, instead of looking at what the Parliament of Victoria has provided for for the recovery of interest in this day and age, where people are kept out of their money.

MR UREN:   Your Honour, we do not want to depart from the statute because the statute is the foundation of the case, but the interpretation of the statute requires looking at some of its history.  Now, if I could deal with that momentarily, but if I could say something about the Salvage Case.  In that case, Lord Brandon, as he now is, was dealing with a statute which used, I think, the word “any”, which is not a word which appears here, but is a word which he gave some emphasis to when he set out the phrase.  The second is that the reason which his Lordship gave for the view which he took was based on the injustice of a quantum meruit claim, not formed within the provisions of the English statute.

Now, a quantum meruit claim, as we understand it, or as is understood in Australia, is certainly a claim for a liquidated sum and is considered as being an action for a quantum meruit is an action for a debt, whether it is for its for historical reasons or otherwise, but nonetheless a quantum meruit claim of the sort which the salvage claim was would certainly have been an action for a liquidated sum and so regarded over here.

Now, if that is the case, then some of the substratum of injustice which Mr Justice Brandon saw as requiring a different interpretation, or the strict one, just goes by the board.  Now, it is not surprising that his Lordship agreed with himself later on because once one takes the view that a statute is intended to have an expansive operation, it is very difficult to go back and say that that is not right, and presumably his Lordship thought he was right.  But, nonetheless, the reasons on which he relied are, in fact, in our submission, correct.  But to go back to ‑ ‑ ‑

GUMMOW J:   Are correct?

MR UREN:   Incorrect.

GUMMOW J:   Incorrect?

MR UREN:   Yes, because a claim for a quantum meruit is, as we understand it, is regarded as a liquidated claim and would, in the days of the old forms of action, be able to be brought in an action for debt.  But to go back to the point that your Honour Justice Kirby mentioned, should this be given an expansive or wide operation.  If it was intended to be given a wide operation, then one might well ask why it was not the case that words which are more appropriate to that task be used, as has been used in other places.  Then if one was to ask oneself why were those wide words not used, one then looks at the reason why the section was enacted and the reason why the section was enacted appears from the reports of the two committees to which reference has already been made.  I wonder if in this regard we could take the Court to the report of the Chief Justice of the Law Reform Sub‑Committee which is in our bundle of authorities.  It sets out the history of the awarding of interest.  On the second page it refers, in the second paragraph from the bottom, to the law of Scotland:

under which, in actions for liquid debts, interest is allowed as a matter of course from the date of service –

and then to the English provision being enacted.  Then on the following page, in the middle, refers to the situation in England, as it was after legislation of 1934.  The report goes on to say:

That section –

section 3 of the English Act –

provided that the relevant provisions of the Civil Procedure Act 1833 should cease to have effect and that in any proceedings in any Court of Record for the recovery of any debt or damages, the Court should have a discretionary power to award interest for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.  This provision did not extend to Scotland.

In Scotland a different course has been followed.  The existing powers, under which interest is allowed, as a general rule upon liquid debts from the date of request for payment, have been preserved in full force.  The Courts, however, have been invested, in addition, with a statutory power, exercisable whenever the circumstances warrant it, to include in any interlocutor for damages, interest upon the whole or part of the damages from a date not earlier than that on which the action was commenced.

In our views the situation so established in Scotland is more satisfactory than that under the English Act of 1934 in two important respects –

Now, it is important here to note, in our submission, that the Scottish provision which is regarded as more satisfactory, allowed interest on liquid debts and interest on damages.  So, having consigned the English statute to the dustbin of history, as it were, and adopted…..in the Scottish provisions, then on page 4 in the second paragraph from the bottom, the report goes on to say:

In the light of these considerations we do not think that it would be desirable to follow the course that was taken in England of repealing the provisions of the Act of 1833 and remitting the whole matter of interest to the general discretion of the Court.

Then in the large paragraph immediately below the middle of the page, say:

We are in agreement that the provision should be made by adding a section to the Supreme Court Act 1958 immediately after Section 79 thereof; that the provision should apply only to common law claims for debt or damages ‑ ‑ ‑

HAYNE J:   Then, what do we take out of that, Mr Uren?  What is the proposition that you derive from that?

MR UREN:   The proposition that we derive from that is that it was not intended by the recommendations of the sub-committee that a change be made in the legislation relating to interest, except to do two things:  to extend the power to give interest to a case where damages are awarded and also to take the task of making the assessment away from the jury and back to the judge.

HAYNE J:   But as the Act stood at this time, the Act provided for interest on liquidated sums, did it not?

MR UREN:   Yes, it did.

HAYNE J:   So the change that was made was to provide for interest on sums which were not liquidated sums.  The expression chosen to make the extension was “action for debt or damages”.

MR UREN:   Yes.

HAYNE J:   Well, you say, as I understand it, that the word “debt” in the expression “debt or damages” thus adopted should be confined to liquidated sums; is that right?

MR UREN:   Yes, to debts as they are properly so called.

HAYNE J:   Why should that be so when liquidated sums were already dealt with in the Act to which this provision was to be added?  It just does not work, does it?

MR UREN:   No, I understand what your Honour says but the same proposition must have been put to Mr Justice McInerney because he said in the CML Case that he could not see any difference, or none appeared to him, between “debt” in one provision and “debt” in the other.

HAYNE J:   Now, you equate “debt” with all liquidated sums, do you, and thus extend it to claims recoverable under the old forms of pleading by an action for debt or an action on the indebitatus counts?

MR UREN:   Yes, I think that is correct.

HAYNE J:   Yes.

MR UREN:   Could I say that we have always thought that there would be an overlap between section 58 and section 60 because section 60 expressly excludes from its operation cases to which section 58 apply, and also section 59, which is the trover and trespass provision. Now, it may be or it may not be a mystery as to why the word “debt” was used in section 60, as well as being used in section 58, but the mystery, if it is one, is not solved by discarding the concepts of debt and damages because those concepts are being expressly preserved and they are being preserved in their historical context. They are not ‑ ‑ ‑

HAYNE J:   But preserved in what sense and for what purpose? Is there any occasion to categorise under section 60, or its predecessor, a claim as a claim in debt, as opposed to a claim in damages, or is it sufficient to characterise the claim as one for debt or damages?

MR UREN:   Well, I suppose we would say if something is a cat or a dog, it is a cat or a dog.  “Debt” had a regular meaning in the times of which we are talking and so did “damages” have a regular meaning.  There is no sign in the Chief Justice’s Law Reform Committee Report, or in the Statute Law Revision Committee Report which follows it, that those words were being used in any sense other than the sense in which they were then understood, or that what was intended was that an “all moneys” effect be given, as it were, to the interest provisions of the Act.  There is every likelihood, in our submission, that what was intended, as appears from the language, was that there was to be an extension of the franchise, as it were, with respect to interest to include damages and a taking away of the assessment task and giving it to the judge.

GLEESON CJ:   As it happens, the words of section 60 do not precisely follow the recommendation of the Chief Justice’s committee.

MR UREN:   Yes.

GLEESON CJ:   If you look at the top of page 6, where the actual recommendation appears in paragraph 2, the language is slightly different.

MR UREN:   Yes, and the word “any” is omitted.

GLEESON CJ:   Well, the recommendation was that the section should provide:

that in any action in which a party becomes entitled to a common law judgment for the recovery of any debt or damages –

et cetera.  What was the point of the reference to a “common law judgment”?

MR UREN:   It may have been thought that equity should stand on its own with respect to interest and it was not intended to ‑ ‑ ‑

GUMMOW J:   In shipping and admiralty matters?

MR UREN:   Admiralty would be alone as well, we would think.  So that may then give the answer to the question Justice Kirby asked as to whether this section was intended to have an expansive effect and to cover all sorts of claims.

KIRBY J:   Pretty clearly, the deletion of those words was an indication that the legislature had the purpose of a larger ambit.  It did not have to be a common law damages.  It tends to reinforce the view that this is – and as well as that, the mischief to which the Victorian Chief Justice’s committee was addressing itself, namely, that with congested lists, cases can be delayed without any fault on the part of parties and they are kept out of their money.  It is not fair.  Parliament has addressed it.

MR UREN:   Yes, but whether it is fair or not depends upon whether you are paying or getting, I dare say, but it may have been thought that the common law matters needed attention, but in so far as statutory rights were concerned, the statute would give what it thought was relevant with respect to relief.

GUMMOW J:   What about a resumption case, which is the case in this Court, actually?  The Hobart Corporation Case was a resumption case and these sort of arguments were put with no avail there.  True it comes up in the context ‑ ‑ ‑

MR UREN:   Your Honours that is so.  The nature of the relief which was sought there ‑ ‑ ‑

GUMMOW J:   I appreciate that, it was payment into court, but the Court was construing this phrase, “action to recover debt or damages”.

MR UREN:   Yes, and it came to the conclusion that compensation for taking away a person’s land are, in fact, dealt with in that – and that is not a surprising view when the statute entitles a person to recover the value of the land and also to recover sums or ingredients which might be looked at as ingredients of the nature of damages for having one’s land taken away.

GUMMOW J:   It is not just that, though.  It is not just that, though.  Their reasoning rejected this treatment of a logical universe which had two components, debt, as understood traditionally, and damages, as understood traditionally.

MR UREN:   Yes, in our submission, properly understood, that categorisation was not rejected, but what was said was that the claim which was made fell within the description of “debt or damages” and when one looks at the sorts of things that fall under the heads of compensation – I mean, if one has one’s land taken away, why should it not be said that the person who takes it away, in fact, owes you the value of the land?  Now, that is ‑ ‑ ‑

GUMMOW J:   I am just looking at page 543, that is all.  It is a judgment to which Justice Windeyer was a party.  He knew all about the history of the matter, if anybody did.

MR UREN:   Yes, what the Court there said was:

the rule did not speak of and was never intended to refer to actions of debt; it spoke of an action to recover a debt or damages and the first part of this expression not only covered a field at least as wide as the old common money counts but extended to claims for money sums arising under specialities or statute.

Now, that does not answer the question in this case which is whether a sum which is unliquidated and which is not damages falls within the description of the statute, because all the court was there saying was that the compensation for one’s property being taken away fell within the description of one or other of the heads, the heads which the section referred to.

Now, it may be correct to say that an action to recover a debt is not necessarily to be equated with the old form of action in debt, but as we understand the history of that, a form of action in debt was called a form of action in debt because it was an action to recover debts.  It is not the nature of a form of action which determines the question of what is a debt.  It is the fact that something is a debt which determines the nature of the action and an action in debt was to recover a debt.  It was not the tail wagging the dog.  The action did not determine the nature of what was a debt.

A debt, as we understand the cases, was always regarded as a proceeding for a sum certain, that is to say, a liquidated figure, and that is not something which has been altered by the use of the word “debt” in section 60. It is all very well to say that it is a compendious phrase which, while it suits one party to say it therefore covers everything, but that is to substitute a conclusion for a reason. The reason must be found, as your Honour Justice Kirby said, in the statue itself. If the statute says “debt or damages” and if it is clear that there are cases which fall between the two stools in that regard, then the claim which is presently sought just does not fall within the provisions of the Act.

To say that it is compendious and meant to cover everything, merely states a conclusion, it does not state a reason for the conclusion.  So, one has then got to say, in order to get to our learned friend’s position, you have to ignore the settled meaning which was given to word “debt” at the time the Act was passed and you have to ignore the meaning which was given to the word “damages” at that time and say that our matter, that is to say his matter, even though it is not a debt or it is not – he is not seeking to recover a debt and he is not seeking to recover damages, nonetheless, it falls within the statute.

Now, we ask rhetorically, “Where are the words which allow that to be done?  Why should the words ‘debt or damages’ be regarded as being the equivalent of an action to recover any moneys?”  It is just not the language which was used.  Now, it may have been the case and it was possible that our learned friend could have looked at a Law Reform Committee Report and said, “Well, now we have seen the history of the matter it is perfectly plain that when these well‑recognised words were used ‘debt or damages’ they, in fact, meant something else”.  But he cannot do that, but we can.  We looked at the history of the matter and it appears plain from the reports on which the statute is based that there is no suggestion that it was intended that the words “debt” bear a meaning other than the usual debt or that the words “damages” bore some other meaning or that the word “debt and damages” together, bore some other meaning either.

So, we ask ourselves – or the submission we make is this:  where does this “all moneys” thing come from?  Now, it may come from the fact, as appears from the argument, that it would be a good thing and it would be nice and fair and so forth.  Well, whether it would be nice and fair or not depends upon the view that one takes of the statutory scheme and whether in the context of the statutory scheme interest should be payable or not for a recovery of a sum which it was the statutory obligation of the relevant authority to make in the first place and ‑ ‑ ‑

KIRBY J:   This is the expressio unius argument, is it, that the structure of the Accident Compensation Act indicates that that is all you get?

MR UREN:   It is slopping over into that in a way, but it is not leading the first point.  What we are saying is if the fairness argument is used against us in order to say the statute must mean something other than its words when ‑ ‑ ‑

KIRBY J:   Perhaps fairness – I use that loosely – but it is seeking what is the legislative purpose and if you look at what is the legislative purpose, overall it seems to me to ensure that people like you cannot sit on your golden egg but you have to cough up the interest, which is not an unreasonable purpose, unless the statute – speaking for myself – I think you may have another argument on the expressio unius point, but if you do not, then this is a general provision in the general statute of the Supreme Court of the State for the provision of interest on money sums and you have really got to work hard, in my mind, to try and say that those words, the words you used, especially given the history, do not cover the universe of this case.

MR UREN:   Well, can we put it this way, the cases in Victoria to which our list of authority refers are Borg Warner and Haynes and also Ainley’s Case have universally categorised the claim for indemnity as not being a claim for damages.  It has said that in different contexts, one in the context of the Phillips v Eyre principle and the other one in another context, which I forget, momentarily, but in each context they have said the claims are not claims for damages.

Now, if the claim is not a claim for damages and if it is not, as normally understood – I am sorry, as held by the courts of Victoria, and also is normally understood, and if it is not a claim for debt either because it is not a claim for debt as normally understood, then it may be all very well to say it would be nice if it was different, but the question is, was it different.  Now, it may be that Victoria is in a bit of a time warp so far as this is concerned, but, nonetheless, it is the indubitable fact that Victoria has not adopted words of the width of those words used in other jurisdictions.

KIRBY J:   Have you done an analysis of the interstate and federal provisions for interest?

MR UREN:   Yes.  They are all the same as or similar to ‑ ‑ ‑

KIRBY J:   I am sorry?

MR UREN:   There are all the same as or indistinguishable from the provision in the Federal Court Act.

KIRBY J:   Except for Victoria.

MR UREN:   Except 51A.  Except for Victoria.

KIRBY J:   Victoria has stuck to its own provision?

MR UREN:   They say all moneys, including debt or damages, so they are “all moneys” clauses now.  We do not have an “all moneys” clause in Victoria, and to say that something which was perhaps not thought of at the time or, alternatively, was thought to be the proper attention of a statute or, alternatively, was not the problem which the Law Reform Commission’s report was intended to address is really to say, “Well, something is covered which is not in the Act”.  So, there must be a reason for doing that.

Now, there are methods of statutory interpretation which allow words to be put into statutes and taken out of statutes and things like that, but none of those are applicable here.  The history of the section, in fact, gives no basis for considering that anything other than the traditional actions for recovery of debt and recovery of damages were considered as being candidates for interest under these provisions of the Supreme Court Act.

GUMMOW J:   Section 51A of the Federal Court Act says:

In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) –

et cetera.  Then it goes on.

MR UREN:   No, I think it has actually been held in a case, the name of which now escapes me, but the words “including” do not mean that all moneys is to be read down, or any moneys is read down, any moneys means any moneys.  Now, whether Victoria is behind the times in this regard or not is not for me to say, but it is difficult to see how on any view, in our respectful submission, the words “debt or damages” can be taken to mean any moneys.  Now, if the view is taken that they mean any moneys then, presumably, a basis for reaching that conclusion has to be given, but none has been heard from the other side except that it would be a good thing and very unfair.

Now, whether it is a good thing or very unfair is not to the point.  If the statute reads the way it does, then that is the way it reads, but we have listened in vain for a mechanism by which these magic words “any moneys” might be transmuted into the section so that it is given the meaning that suits the argument of the appellant.  That, basically, I think is what we wanted to say in respect of what we might call the first point.  Now, I wonder if as a matter of completeness I might hand to the Court copies of the various forms in which the present section has gone through since 1865?

GLEESON CJ:   Thank you.

MR UREN:   Now, that is not for the point of view of basing any real argument on them but merely to give the Court the history of the provision to show that ever since early days the words “debt or damages” have been – I am sorry, since early days the words “debts or sum certain” have been used and that did not change until 1962 when the provisions of the relevant part were maintained in their original form but section 79A was added and the task of making an assessment was taken away from the jury and given to the judge.

Now, the question of whether this is an action for the recovery of damages or not is a matter which really only arose, from the point of view of submissions, so far as we can see, when we were served with a little response shortly before ‑ ‑ ‑

KIRBY J:   But that cannot be of any concern in this case.  It is not a matter upon which evidence would be called.

MR UREN:   We understand that, your Honour, but we are just trying to excuse ourselves for not having dealt with the matter as we might otherwise have done, for the reason which I will give in a moment.  Now, in the context of the argument that this was an action for the recovery of damages, the insurance case which our learned friend has referred to was given as a relevant authority and we, in this context, would rely on it ourselves because it does, in fact, give a definition of damages which – sorry, I will go back – the judgment in the case gave as a meaning of “damages” the meaning stated in Halsbury’s Laws of England in the edition which it then was which would exclude this claim being a claim for damages.

The case to which our learned friends have referred was Jabbour v Custodian of Absentee’s Property of the State of Israel.  The passage to which ‑ ‑ ‑

GLEESON CJ:   What is the reference?

MR UREN: The reference which was given was [1954] 1 All ER 145 but it is also in [1954] 1 WLR 139, but in the bundle of material we got we do, in fact, have both but there is no relevant difference between the two reports. At All ER 150 Mr Justice Pearson said that:

It is established by many decided cases that such a claim as this is a claim for unliquidated damages –

that is to say, a claim for indemnity under an insurance policy which is not a value policy.  A little bit above line E, his Lordship said:

But the word “damages” is puzzling and seems to be used in a rather unusual sense –

and then at F his Lordship gave the usual meaning of the word “damages”, reading it out from Halsbury’s Laws of England.  At the very end of that passage the following appears:

or, put more shortly, damages are the recompense given by process of law to a person for the wrong that another has done him.”

That is, as we would understand “damages” to be, they are the compensation that was given to somebody for damage having been done to him by the act of another which regards that person in the wrong. 

In the present case there are a number of Victorian authorities which hold that the indemnity which was sought under section 138 is not damages and without reading the passages to the Court – they appear in Borg Warner v Zupan (1982) VR 437, I think at 441, 442, 455 and 456, and also in Accident Compensation Commission v Haynes (1992) 1 VR 677 at 693. So, it has not been regarded in Victoria, in any event, as though an action of damages is created by the indemnity provision which is not surprising in view of the definition which was accepted by Mr Justice Pearson.

Our learned friends have then got to say to the Court, presumably, in order to achieve the badge of damages on their actions is an action for recovery of damages and they say the writ itself did not seek damages, it sought an indemnity, but apart from that they have got to say that the word is used in a sense which is not the ordinary sense, and also to get rid of those cases.  Now, as we would understand it, no attack has been made on the authority of those judgments.

GUMMOW J:   Wait a minute.  The Borg Warner is about a different subject matter, is it not?

MR UREN:   Yes, the subject matter is different but, nonetheless, the point is made in them, as a point of reasoning, that the claim is not one for damages because if it was it could be a claim for tort.

GUMMOW J:   But are there not cases construing the old Commonwealth Service and Execution of Process Act which say that you include in claims that can be served outside the jurisdiction claims arising under statutes to recovery money on the basis that they are quasi-contractual, I think?

MR UREN:   I do not know, your Honour.

GUMMOW J:   I think there is.

MR UREN:   I do not know.

GUMMOW J:   It just makes the point that you have to look at the particular statute which uses these words and the particular purpose of the statute.

MR UREN:   Yes, we understand that but if the ‑ ‑ ‑

GUMMOW J:   Borg Warner is one of those types of case, is it not?

MR UREN:   Yes, it is one of those of types of case but for the purposes of the reasoning of the Court in saying that the action is not one in tort or contract, one of the reasons given for saying it is not an action in tort is that it is not an action for damages so the action is not regarded as being an action for damages.  Now, if it was an action for damages then, presumably, it would be damages because the plaintiff has been damaged.  If the plaintiff was damaged then one would ask why there was not a cause of action in tort in any view after having caused damage by running into a worker or something of that sort but that is not the way that the law goes.    So, in any event, there are cases in Victoria and authority which proceed on the basis that the claim is not one for damages. 

There is also the question of whether when a payment was made of compensation as to which an indemnity is sought that there is any damage which the authority or FAI in fact suffers.  Now, all they do, in our respectful submission, is administer a statutory fund from which payments are made under the authority of the statute to the worker.  They, themselves, suffer no loss, injury or damage or anything of that sort.  It would be a complete travesty, in our respectful submission, to categorise a payment which was made to a worker under the provisions of the Workers Compensation legislation as damage which was suffered by the person administering the scheme and making the payment.

Now, if that is the case then in order to bring the provisions, and in order to bring the action under the description that our learned friends would have it brought under, the word “damage” has to be given an extremely interesting meaning, which has not been exposed, and the words “debt or damages” have got to be an extremely interesting meaning which has not been exposed either.  So, the point we make is this:  where is it that says we are liable?

It is all very well to say it would be a nice thing and it is all very well to say that it would be better, or not, as the case may be, if the Victorian legislation is more widely expressed, but what is it about this case which makes the proceeding one to recover damages?  What damage has been done to the VWA?  The VWA is only paid the money which the statute requires it to pay out of the statutory fund.  Now, FAI, as we understand it, comes into the matter not because it is an insurer but because of the fact that under the law as it previously was the obligation to pay compensation rested with the Authority as the successor to the Accident Compensation Commission.

When this legislation was changed on a date which now escapes me, authorised insurers were brought in and policies of insurance were required to be taken out but the liability of the Commission was then transmuted by statute over to the new insurer, that is to say, to FAI, but it is not the case that FAI is paying any amount under a policy of insurance, FAI has only taken over the obligation to the VWA and that is then that payments have to be made out of the statutory fund for compensation.  The only thing which has been depleted by those payments is the accident compensation fund.  The accident compensation fund has got its own little tap which lets money go into it, that is to say, provisions of the Act would say that insurance premiums, various other payments and things of that sort go to make up the fund.

The Act also provides what will paid out of the fund, but how can it be said that any of the persons administering the fund have in fact suffered damage for which their entitlement to an indemnity – I am sorry, who have suffered damage when all they are doing is seeking to recover by way of indemnity sums which have been paid out of the fund.  Now, this far divorced, in our respectful submission, the scheme of the Act is far divorced from any concept of damage, and even if the matter had been one of regular insurance the insurer would not suffer damage by having paid out the amount which was due under the policy because that is what he gets paid for in the first place, to meet the terms of the policy if an occasion arises.

The insurer does not have any right of action in damages, so, we have reached the situation, in our submission, which would have to be regarded as rather extraordinary, that despite the fact that it cannot be said why “debt” means what our learned friends want it to mean, or “damages” what it means, nonetheless, the placing together of these two words achieves some catalytic result on both of them, such that a new thing is created, into which their case falls for reasons which are not able to be linguistically expressed.  We have not heard any basis upon which it could be sensibly said that the words “debt or damages” cover an indemnity under a statute in which all that is sought is to bring back into the fund moneys which are being paid out.

If the Act had thought that that was a good thing to be done and then getting on to the expressio unius argument, then surely it would have made provision for that.  The Acts makes provision for interest in a number of places which have been referred to in our learned friend’s submissions.  The Act also makes provision under, I think, section 129 for penalty payments to be made to workers where payments are later made.  So, there is another area in which the concept of not making payments that you should make is dealt with by some recompense provision, but one has only got to look at the size of the Act, in one sense, and say, “Well, look, this looks as though it is meant to be a code in which all of the relevant matters were intended to be covered”.

Now, in one sense, the matter is one of impression.  It is the size, the width and breadth of the scheme that would, in our respectful submission, make it look as though that what it gives is all that is intended to be given and when it is said in section 138 that there is a “right of indemnity” then the right of indemnity which was given is the only right which exists with respect to the recovery to which it refers.  If it was thought that interest should be payable on that sum, one would have thought the statute would have so provided but it does not do so and it is, in our submission, not a case where the provisions of the Supreme Court Act can be used in aid when there is a statutory scheme of considerable complexity dealing with payments of all sorts, dealing with late payments and recovery of payments and things of that sort.

In other words, this is a purely statutory right. The money is not – sums are entitled to be recovered purely because the statute says so and what the statute say is all it intended to give. Now, if that be of the statute’s right and section 138 constitutes the entire remedy, then one might say, “Well, look, if section 60 otherwise applies there is a contradiction between the two statutes” and then we bring in aid the doctrine of repeal pro tanto which is mentioned in Kartinyeri’s Case.

HAYNE J:   The argument thus most recently advanced would apply, would it not, to every statute providing for recovery of any sum?

MR UREN: Not necessarily. One would have to look at the statute. But, the point we make is the totality of the scheme appears to be such, in our submission, that it is in fact well contained, it is its own universe of rights and remedies. If one does not take that view then our argument fails, that is all, but it does not necessarily extend to every claim for a recovery of a statutory sum but in the context of the present Act one might ask why, when benefits are given and sums are provided, to be paid by way of interest and penalty for not having done what you should have done in the first place, that for this part alone we go to section 16 of the Supreme Court Act.  In our respectful submission, the greater likelihood is that it was intended that the scheme there is a stand‑alone scheme and the rights which it gives, whether they are enough or not enough, or was given.

Now, the scheme itself is financed, presumably, on actuarial and statistical bases and things of that sort.  Whether the financing of the scheme was done by taking into account the receipt of interest, although it is not provided for in the Act, one does not know that but these are things which one have thought the statute would have provided for itself if in fact it was intended that there be any recovery of that sort.  So, for those reasons, in our submission ‑ ‑ ‑

GUMMOW J:   I am not sure whether you agree with this.  Does your side accept that there would be a sustainable action to recover the amount of this indemnity, even though the statute does not in terms confer it?

MR UREN:   Yes.

GUMMOW J:   You do not have forms of actions any more, obviously, but what would be the analogue in the forms of action to that proceeding?

MR UREN:   What one does is write down what one wants on the statement of claim and that is it and you then fit it under a statute.

GUMMOW J:   But is it a species of indebitatus assumpsit?

MR UREN:   No.  What one would do under the old forms of action one could not say unless one was born around about 18 something or other and knew what they were all about.  In other words, it is impossible, at present remove, to say, I think, how this would have been dealt with then or whether there would have been some equitable remedy because I see in – I think in Hopkins’ Case the argument was the remedy lay in equity or it may lie in the seeking of an injunction or something of that sort.  It is a bit hard to say.  In other words, to require the money to be paid, but, in any event, there may be another cause of action.  I am not able to say whether there would or would not.

GLEESON CJ:   What was the ambit of the word “specialty” in an action on specialty?

MR UREN:   Was that a deed?

GLEESON CJ:   Just a deed?

MR UREN:   I would think so, yes.

GUMMOW J:   I thought it was a statute as well.

MR UREN:   I do not know, your Honour.  Your Honour may be right in that regard but I – well, a deed sprung to mind, in any event, but nonetheless, the cases with respect to the action of debt are relevant with the requirement that a sum be the liquidated sum.

CALLINAN J:   Mr Uren, a claim under Lord Campbell’s Act is a statutory claim but it involves a wrong, does it not?

MR UREN:   Yes, it is a statutory tort.  Now, we are not talking here about statutory tort cases.

CALLINAN J:   No, and there are other instances of claims under statutes but you would not contend that they were not claims for damages, in some instances?

MR UREN:   No, we would not.  They are considered, I think, as statutory torts…..legislation.

GUMMOW J:   But where do you get the word “tort” from?

MR UREN:   Because it is a wrong for which damages are recoverable.  The statute says it is wrong and the remedy is damages and that is it, but the statute here does not say anything is wrong.  There is no wrong that has been committed with respect to the VWA by Esso.  Esso may have done something to a worker but it did not do anything to the VWA.

KIRBY J:   Well, there is no mention of wrong or tort in the Supreme Court Act.  You have to persuade us to gloss the statute and import it.

MR UREN:   I am sorry, your Honour?

KIRBY J:   There is no mention of wrong or tort in the Supreme Court Act, section 60. It simply talks of “debt or damages”. You have to ask us to insert those new concepts.

MR UREN:   Yes, but the concept of damages is the sum which is payable by a compensation for the commission of wrong which was caused by a loss; the wrong being a wrong to the person who is bringing the proceeding.  Now, that appears from a passage in Halsbury that Mr Justice Pearson cited and I have not heard any argument to the contrary of that being correct.

GUMMOW J:   But the very fact that today in the ordinary understanding of the profession in Victoria people cannot readily say what the form of action, although they know there is one, suggests, surely, that this expression in the statute is a comprehensive one.  You see, all learning has all been lost.

MR UREN:   There are no forms of action.

GUMMOW J:   That is right.

MR UREN:   One is not looking for a form of action, one is looking for the ‑ ‑ ‑

GUMMOW J:   But you say there is an action that lies to recover this indemnity.

MR UREN:   Yes, there is an action which lies, but the action is a ‑ ‑ ‑

GUMMOW J:   Is innominate of some description and therefore it falls through a crack.

MR UREN:   But the action is a proceeding and the proceeding allows you to, on your statement of claim, say, “The statute says I am entitled to certain moneys and I have not been paid and I want them”.  Now, that is the way it goes.  You see, one does not say ‑ ‑ ‑

GUMMOW J:   What Baron Parke was not saying that it was an action conferred by the statute; he said “an action may at common law”.

MR UREN:   Yes.
‘
GUMMOW J:   So, it is not like the compensation to relatives action or Lord Campbell’s action.

MR UREN:   No, it is not, but the difficulty with looking at the forms of actions is that they were, in a sense, a…..to which somebody had to be pushed or not, as the case may be.  That is not the situation so far as present rules of pleading go.  One just says what one’s rights are and asks for the rights but the rights themselves are subject to characterisation, if it is necessary to do so.  Now, if it is necessary to ask for damages then you cannot get damages.  I mean, if damages are an orange, you ask for the orange, you do not say it is a banana.  “Damages” have a well‑known meaning and if you get damages then you get what damages have always been understood to be.  Any sum of money that you are entitled to under a statute cannot fall under the heading of damages because damages has a regular meaning and it does not mean just that.

So, in one sense, there is no point in looking at the old forms of action, except in the case here where, as we understand it, the action of debt was for what are properly called debts, so it is appropriate to look at the old form of action to see what it did in fact - - -

GUMMOW J:   I thought you said debt in this statute included indebitatus assumpsit.

MR UREN:   Yes.  As we understand it, the old action of debt would cover those claims as well.  There is a long discussion of the matter in Ajax’s Case and a long discussion in Pavey & Mathews as well as to what is precisely covered in that regard, but those claims have always been regard as liquidated, and being for liquidated sums they would fall within the concept of debt.

GLEESON CJ:   This learning is not all that ancient.  It applied in New South Wales until 1970 and there is a book by Mr A.F. Rath called Principles and Precedents of Pleading in which these old forms of action were all considered.  You have not looked at that to see what an action for recovery of money due under a statute would be?

MR UREN:   No, we had not, your Honour, although we do recall that in Pavey & Mathews Mr Justice Deane said that New South Wales lawyers, despite rumours to the contrary, did not in fact rush around looking at forms of action all the time and looking at fictitious promises and things of that sort.

GLEESON CJ:   No, they just went to Mr Rath’s book.

MR UREN:   Yes…..and ask for them because you no long have to set out what your precise form of action would have been since 1865, or something.

CALLINAN J:   Why does not a requirement under a statute to pay money simply create a statutory debt?

MR UREN:   Well, because it is not a debt.  It creates a statutory obligation, but if it is ‑ ‑ ‑

CALLINAN J:   Why is that not a debt?

MR UREN:   Because, I think it was said earlier in the piece, I think, if it is a debt, if debt is the sort of thing you can go and get a judgment in default for but in the present case you cannot get a judgment for default, there is creditor and debtor.  The debtor cannot pay the sum which is due because the sum which is due in this case is not the compensation up to a statutory cap, it is one or other of two figures, one figure being the compensation and the other figure being the damages reducible by reason of contributory negligence and some other ingredient which I now cannot recall but nonetheless purely unliquidated figures.

Now, a sum which cannot be ascertained until after judgment cannot, in our submission – until after value judgments are exercised, rather, as to matters as amorphous as those has never been regarded as debt.  Now, when the judgment is given of course there is a debt but – I think we are basically pleading for the words to be used in their ordinary sense.  Now, it is when one says, “Why can’t it be this?” or, “Why can’t it be that?” in our respectful submission, what that usually means is it is not what I would like it to be, if I may say that, but the point is, when one says, “Why can’t it be taken as” that usually means, “Well, it is certainly not that but we would like it to be” and what is the argument in favour of saying that?  There is not, as we are aware, of any case which says that a proceeding for an unliquidated sum, even if given by statute, is a debt. 

Now, it is foreign to the concept of debt that the sum be unliquidated so one then has to say the word “debt” here is not used in the sense in which it is ordinarily used, but, where does the history of the section allow that to be said?  It would have been entirely surprising, we would have thought, to relay to Mr Justice Smith and relay to Mr Justice Lush and the other eminent persons who formed the Chief Justice’s Law Reform Committee, to be told that things were to be taken to be something which they were not because from what I recall of their Honours they never took anything for what it was not and they would certainly have regarded themselves as using the words “debt” – when they saw the words “debt and damages” they would have regarded them as being used in the sense in which they were ordinarily used.

CALLINAN J:   Except at the bottom of page 4 and the top of page 5 of that report they seem to be saying that, in effect, only exceptional cases will fall outside cases in which interest might be payable.  They talk about, for example, exemplary damages and the like.

MR UREN:   Yes.  Well, there has always been a problem as to what particular heads of damage should in fact carry interest.

CALLINAN J:   You say they are still talking about damages, in a strict sense?

MR UREN:   Yes, they are talking about whether interest should be payable on certain heads of damages.

I might say so far as the universality of section 60 is concerned, the report of the Statute Law Division Committee, itself, in paragraph 19 said they did not think interest should be given in respect to claims made to Magistrate Courts, so it was not, perhaps, intended that the provision be as wide as was put. But, in any event, all we have asked for, really, is some

statement of principle or interpretation which allows the words to mean something which they do not.  In that regard nothing has been heard, so on that basis, unless there is something else which the Court thinks we could assist with, I will sit down.

GLEESON CJ:   Thank you , Mr Uren.  Yes, Mr Gorton.

MR GORTON:  Very briefly, on the submission made by my friend, “debt” in section 60 must mean the same as “debt” in section 58 of the Act and can do nothing because section 58 is superior. It is an unreal approach to say we have to look at the precise form of debt.

The authorities that were referred to in the Victorian courts as saying that an action under these forms of indemnity were not an action for damages do not make that point, save for Justice Menhennitt putting it in at one time.  They were authorities directed to the question as to whether there was a tort or contract and found held in each case that the right under the statute was not a right in tort or in contract.  It does not follow from that, which is what those cases are authority for, that the amount of money recoverable under the statute is not damages, and those cases do not stand for that proposition.

The Victorian Supreme Court has interpreted section 60 in Mario Piraino v Roads Corporation (1991) 2 VR 534, and a passage relating to the application of section 60 is to be found at page 536 in the judgement of Justice Gobbo, who constituted the Court. He was there dealing with compensation under section 98 of the Planning and Environment Act, which would not ordinarily be regarded as either debt or damages, it having to be accessed and fixed, and held that that compensation fell within the term “debt or damages” in section 60, and that the section should be looked at so as to incorporate that form of compensation. That is one of the authorities in our list of authorities.

The Accident Compensation Act makes provision for payments of compensation and recovery of compensation. Where it makes provisions, itself, for interest, those provisions are always more beneficial to the recipient of interest than any right under either sections 58, 59 or 60 would be. They allow in broad terms, without going through them one-by-one, interest to be given from the date incapacity commences whether or not proceedings are instituted. They allow the recovery of interest whether or not there is a judgment. They allow interest to be paid where the assessments are made by bodies other than a court, and in every instance of interest under the Act, the interest is a more beneficial right which could not be given under section 60.

In areas where the Act is silent on interest, it is appropriate to regard the legislature as having intended that the Act should be applied having regard to the common law and the statue law applicable, and, therefore, where it is silent, where there is not a purpose of enhancing the value of interest to a potential recipient, the sections should be treated as giving the ordinary rights of interest otherwise provided by the Supreme CourtAct.

I have to hand to the Court reprints of section 138, I think it is, as it has been from time to time, and I have to hand to the Court – this is the copy of Bishop of Rochester v Bridges that has been referred to earlier on.  In so far as it was submitted that claim for damages has to be a claim based on a tort or wrong committed by one person affecting the claimant.  We refer the Court to CIC Insurance Limited v Bankstown Football Club (1996‑97) 187 CLR 384, which has already been referred to in our reply and a passage at page 402 in the then Chief Justice and Justices Dawson, Toohey, and Gummow. It says:

As we have indicated, the Club did not pursue its claim against CIC as one to recover damages flowing from repudiation by CIC of the contract of insurance and the acceptance thereof by the Club.  The term “damages” in a such as the present of a claim under the Policy thus is used loosely to identify the moneys payable to the insured upon a proper construction of the Policy.

So that “damages” is a term that has been recognised by this Court as applying to moneys claimed other than pursuant to a wrong committed to the claimant.

Unless the Court has anything further to say, I have nothing more.

GLEESON CJ:   Thank you, Mr Gorton.  We will reserve our decision in this matter and will adjourn for a short time to reconstitute.

AT 12.40 PM THE MATTER WAS ADJOURNED