CENTREPOINT FREEHOLDS PTY. LTD. v T.N. LUCAS PTY. LTD.

Supreme Court Act 1958 (Vic.) ss.60, 79A(1). Federal Court of Australia Act 1976 (Cth.) s.52.

CENTREPOINT FREEHOLDS PTY. LTD. v T.N. LUCAS PTY. LTD.

T.N. LUCAS PTY. LTD. v CENTREPOINT FREEHOLDS PTY..LTD.

V.G. 109 of 1984 ere a ; wa a af = a Sweeney, Woodward & Neaves JJ. AN . SeUN 22 April 1985 v

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 104 of 1984 oye )

On appeal from a single judge of the Federal Court of

On appeal from a single judge of the Federal Court of

The order that T.N. Lucas Pty. Ltd. recover against the

All questions as to the entitlement of T.N. Lucas Pty. Ltd. to damages in the nature of interest be referred to

the learned trial judge to be determined by his Honour

Liberty to apply to the court as presently constituted

(Note: Settlement and entry of orders are dealt with in

) ) VICTORIA DISTRICT REGISTRY ) VG No. 104 of 1984 ) GENERAL DIVISION )

On appeal from a single judge of the Federal Court or

) ) VICTORIA DISTRICT REGISTRY ) VG No. 109 of 1984 ) GENERAL DIVISION )

On appeal from a single judge of the Federal Court of Australia. BETWEEN: T.N. LUCAS PTY. LTD. Appellant

The facts which have given rise to these appeals, which

by consent have been heard together, are conveniently set out

an the reasons for judgment of the learned trial judae, as

"Ttoollis Neophytou Lucas 1s a pastry-cook, born in Cyprus 56 years ago, who settled here in 1949, He worked as an hotel waiter, bought and conducted and then sold a suburban milk bar. In 1954 he bought a business in North Balwyn : cake shop and bakery, with a dwelling upstairs. The price he paid fell a little short of $7,000. He sold the business in 1971 for $40,000. In the year before sale the assets of Mr. Lucas and his wife, other than the assets of the business, exceeded their liabilities by more than $100,000. The surplus had been achieved by employing the profits of the business in the acquisition of real property. Mr. and Mes. Lucas had also discharged out of those profits the

expenses of rearing, and educating at private schools, their four children. In 1974 Mr. Lucas

bought a similar business at "the Doncaster Shopping Town" for $8,000. He sold the business in November 1977 for $45,000. Mr. Lucas learnt the

pastry and bakery crafts from tradesmen he employed

at North Balwyn. All the stock of both businesses was manufactured in the shops : nothing sold was

bought in. He and his wife worked in the shops, making and selling.

Mr. Lucas and his wife have at all material times been the only members, the only beneficial owners

of the issued capital, and the directors of the applicant T.N. Lucas Pty. Ltd. The activities of the applicant with which this proceeding 1s concerned were in execution of a trust, accepted by the applicant in March 1979, of a fund for the benefit ot Mr. and Mrs. Lucas and certain relatives of theirs. The powers conrerred on the applicant by the trust deed authorised those activities.

By a deed dated 16 May 1979 the applicant and the respondent agreed for a lease by the respondent to the applicant of certain premises in the basement of a building in Bourke Street, Melbourne, known as the Centrepoint Mall, for a term or 4 years [rom a date to be ascertained in accordance with provisions of the deed. Pursuant to the provisions of the deed the applicant took on iv October 1979, and for about 15 weeks retained, possession of the premises, and conductea therein a retail cake shop and bakery. Then the respondent excluded the applicant from possession of the premises, which the applicant has not re-taken. In this proceeding the applicant claims against the respondent damages in respect of conduct proscribed by s.52(1), s.53(aa) and s.53A(1) of the Trade Practices Act 1974, and constituting rraudulent misrepresentations, which 1s alleged to have caused the applicant to execute the deed, and damages in respect of breaches alleged of warranties, which the same conduct was said to have constituted, collateral to the execution ot the deed, and damages for negligence in respect ot the same conduct. The several statements of which the impuaqned conduct consisted are alleged in sub-paragraphs, alphabetically designated, oft paraqraph 4 of an amended statement of claim which was tiled on 19 October 1982."

(Lucas v Centrepoint Freeholds (1984) 52 ALR 467 at 46B-9).

His Honour found that representations had been made on behalf of Centrepoint Freeholds Pty. Ltd. (Centrepoint) to Mr Lucas on behalr ot T.N. Lucas Pty. Ltd. (the applicant) that agreements had been reached for the lease of premises in the basement of the Centrepoint Mail to "McDonalds" and to

"Gilbertsons". His Honour also tound that representations

had been made that Centrepoint's intention was to treat the

applicant's tenancy as upon the terms, including the terms as

to rent, specified in the written application for tenancy, notwithstanding the terms of the deed presented by Centrepoint for execution by the applicant.. The terms as to rent in the written application for tenancy provided for an annual rental of s27,680 with rental review by mutual agreement in two yearly periods; whereas the deed provided for an annual rent of $27,680 subject to adjustment in accordance with the movement in a specified price index over the period between the quarter ending 31 December 1978 and the quarter prior to the commencement date of the lease. His Honour found these representations to be false and to

constitute contraventions of s.52(1) of the Trade Practices

Act 1974 (the Act) and that they induced the applicant to execute the deed. He also found the representations

His Honour went on to consider the question of damages

Both the applicant and Centrepoint have appealed from

In its notice of appeal Centrepoint appeals from those parts of the judgment whereby it was ordered that the applicant recover against Centrepoint $51,431.16 and that the

applicant's costs of the proceedings (including costs

The first ground of appeal relied upon was that the learned trial judge should not on the evidence before him have decided that the applicant had not atfirmed the agreement for its lease before 1t was dispossessed by

Late 1n October 1979 the applicant received a statement by Centrepoint of its account with Centrepoint in respect of the tenancy. The rent was charged at a rate increased in accordance with the provisions of the agreement for the lease which we earlier explained. Charges were raised in respect of ""apportionable outgoings" and in respect of the applicant's membership of an association of tenants for which that agreement also provided. After allowing the applicant credit in respect of $2,306.66 previously paid, as Mr Lucas believed for the tirst month's rent, and in respect of a proportionate part ot the "advertising allowance" (to which reference 1s made in a letter dated 5 February 1979 from Centrepoint to Mr and Mrs Lucas), Centrepoint asserted that the balance due in respect of the period from 16 Uctober 1979

By a summons issued out of the County Court of Victoria

on 14 November 1979 Centrepoint sued the applicant as lessee and Mr and Mrs Lucas as guarantors for that balance (in the summons stated to he $4,457.47), together with interest on

that sum at a rate of $1.82 per day from 14 November 1979

until payment or judgment. The evidence did not disclose

A letter dated 16 November 1979 trom the applicant's

solicitors to Centrepoint Custodian Pty Ltd, a company

"We act for T N Lucas Pty Ltd (the company) which 1S 1n occupation of the above-mentioned shops and which executed a lease document with Centrepoint

Freeholds Pty Ltd in respect thereof. We also act for Vasiliki Lucas and Ttoollis Lucas.

Uur clients relied upon representations made and warranties qiven by Centrepoint representatives that the Centre would open at a specified time which tin the event) was sianificantly earlier than the date upon which the Centre in tact opened. Indeed, as late as February 1979, letters to our clients confirmed that the Centre was ta open in March 1979. When the Centre did not open in March, our clients were given further assurances as to an

early opening date and were induced thereby to act to their prejudice.

Further, representations were made and warranties were given to our clients as to the nature of the other tenancies in the Centre, and these representations have now been discovered to be

demonstrably untrue and the warranties have been breached.

The next matter concerns proceedings in the County Court at Melbourne $931016 by Centrepoint Custodian Pty Ltd against 'B & T Lucas'. Agreement was reached in negotiations with the lessor of the shops that all costs associated with the provision of three phrase power and as much electricity and other requirements as were needed for the establishment of the bakery and cake business to be

established at the shops would be met by Centrepoint. In any event, 1t 1s noted that, on no view of the facts, are Mr & Mrs Lucas the occupants of the shop nor the proprietors of the business

conducted thereat. The proceedings which have been instituted will be strenuously resisted.

The company has received from Centrepoint Custodian Pty Ltd a letter dated 24 October 1979 requiring payment of what are alleged to be 'apportionable outgoings under the lease document that has been

executed. Whilst the company would join 1ssue in any event with its liability to pay all or any of the items which are claimed to be 'outgoings' and to contest the amount thereof, it 1s observed that the whole of those 'outgoings' are stated to relate to an assessment 'for the period to 30 June 1979'. The whole of the period to which the 'outgoings' relate therefore antedates the commencement date stipulated by your letter dated 3 August 1979. On no view of the matter, therefore, can the company be liable for any part of those 'outgoings'. Accounts rendered in reliance upon the same are manifestly without foundation, and the company denies liability to pay any part thereof. The company also disputes the purported increase in rental above the level of $2,306-66 per month.

In the circumstances, our clients have an entitlement to rescind and determine any tenancy or other transaction into which they or any of them may have entered and to claim damages from Centrepoint. They are, however, prepared to abstain for the time being from exercising their various rights pending your response to this letter. Their abstention is, however, not to be construed 1n any way as derogating from or an abandonment of the rights that they have or may have. Falling a response satisfactory to our clients within seven days, we are instructed that, without further notice to you, we are to take such steps as may be necessary to protect the position of our clients.

We should be pleased if you would bring the contents ot this letter to the attention of the various Centrepoint companies, including

Centrepoint Freeholds Pty Limited, the lessor of the premises.

The foregoing 1s not to be taken as an exhaustive statement of the matters of which our clients complain and they reserve to themselves the right to raise such other matters (including, for example, the flooding of the shops by the sprinker system) as they may be advised."

The letter dated 24 October 1979, to which reference 15 made in the letter just quoted, was from Pacific Shopping

Centres Pty Ltd, another company associated with Centrepoint, not from Centrepoint Custodian Pty Ltd, and it was posted

with the statement of account to which we have referred.

At the request of Mr Powderly, the credit manager ot the group of companies which included Centrepoint, Mr Lucas called at an office in South Melbourne on or about 21 November 1979. Mr Powderly asked him why he would not pay the rent of his premises at the Centrepoint Mall. Mr Lucas asserted 1n reply that he had already paid the rent for October and that the amount claimed for rent was not "according to the original agreement" Mr Lucas claimed to have with Centrepoint. During the conversation a Mr Tallent, who was sworn by Mr Powderly to be, at the time Powderly was qiving evidence, the property manager of a company associated with Centrepoint, joined Powaerly and Lucas. Mr Tallent said something during the conversation which Lucas understood to be an expression of Centrepoint''s willingness to accept, for the time being, rent at the rate of $27,680 per annum ithe amount specified in the form of application for a lease), together with a promise to send Lucas the next day a letter

confirming what Tallent had said. No such letter was

His Honour was not persuaded that Lucas correctly reproduced in evidence the words Tallent used, nor that Lucas correctly reproduced the conversational context in which Tallent''s statement concerning the rent was made, nor that Lucas''s understanding of what Tallent said was justified by

"ft is not that I doubt Lucas's veracity in relation to the conversation, but the evidence of

Lucas and Powderly leaves me uncertain what was said."

On 27 November 1979 the applicant's solicitors received

from Centrepoint's solicitors a letter in these terms:-

has been referred to us and 18S to be answered in the near future,"

"In the ainterim kindly refrain from directing further correspondence direct to our client."

On or about 8 January 1980 the applicant received from

"To: T N LUCAS PTY LTD ot 8 The Moor, North Balwyn, being the Lessee of shops WNo(B.01) and (B.02), Centrepoint Mall, Bourke Street, Melbourne, pursuant to a Lease dated 16th May 1979 made between you and Centrepoint Freeholds Pty Ltd of 158 City Road, South Melbourne.

BY THE ABOVE-MENTIONED LEASE you the Lessee covenanted to (inter alia) -

(1) Pay to the Lessor throughout the said term thereby created annual rental in the sums therein specified by equal calendar monthly instalments 1n advance.

(i1) Pay to the Lessor the Lessee's proper proportions of the apportionable outgoings as estimated in advance by the Lessor and

charged to you the Lessee in accordance with the provisons of Clause 6.02.

(1i1) Pay to the Lessor interest at the rate of fifteen per centum per annum on any rentals

or other moneys payable by the Lessee thereunder and remaining unpaid (whether demanded or not) for seven days such interest to be computed from the date upon which moneys in question became due and payable to the date upon which they are fully paid to the Lessor.

THE ABOVE-MENTIONED COVENANTS have been broken and the particular breaches complained of are:-

'ai 'That you the said Lessee have railed to pay to the Lessor the monthly ainstalments ot the annual rental reservea by the Lease assessed" and applicable to the calendar months of Jcetober, November, December 15/9 and January 1980.

ib) That vou the said Lesseeé have failed to pay to the Lessor the Lessee s proper proportions of the apportionable outgoings assessed by the Lessor and charged to you pursuant to Clause 6.02 or the Lease, the particulars whereof have been notified to, and are known to you.

tc) That you the said Lessee have failed to pay to the Lessor interest at the rate of rifteen per centum per annum on any rentals or other moneys payable by you to the Lessor and remaining unpaia for seven days.

THEREFORE TAKE NOTICE that Centrepoint Freeholds Pty [td, the Lessor or the above-mentioned premises, requires you within tifteen days arter the date of service or this WNotice upon vou to remedy the afore-mentionea breaches of covenant in so far as the same may be capable ot remedy by you.

AND FURTHER TAKE NOTICE that 1n the event ot you the said Lessee falling to comply with this Notice

within the time atroresaid it 1s the Lessor s intention to re-enter upon his demised premises and determine the said Lease.

DATED the 7th day of January 19B0. Madden Butler Elder & Graham.

Signed by the said Madden Butler Elder & Graham of 500 Collins Street, Melbourne as duly authorized

solicitors and agents tor Centrepoint Freeholds Pty Ltd."

At about the same time the applicant's solicitors sent to Centrepoint's solicitors a letter, dated 8 January 1980,

"We reter to our letter dated 18 November 1979, your letter dated 27 November 1979, and our more recent attempts to communicate with you by telephone, and now advise that our client 1s

response 18 received within 14 days of the date hereof.

of our client's shop, at least one of its employees has suttered injuries and will be seeking damages."

The "monthly instalments of the annual rental reserved by the Lease" (to which the notice dated 7 January 1980 refers) exceeded the monthly instalments appropriate to an annual rent or $27,680 by reason of the operation of the provisions of the lease with respect to adjustment of the rent. Accounts claiming rent instalments in respect of the months of October, November and December 1979 and January 1980 had been rendered to the applicant: the instalments claimed exceeded the ainstaiments which would have been

Accounts had been rendered which claimed amounts in respect of "maint." by which "the Lessee's proper proportions of the apportionable outgoings assessed by the Lessor" was designated in those accounts. The agreement for lease did provide for estimation, "in advance", of apportionabie outgoings and for payment of the estimated amount in advance,

as well as for subsequent adjustment if the estimate should

The agreement tor lease made provision for the payment of interest on moneys payable by the lessee under the agreement, but the provision made was for payment on demand

and there was no evidence that any demand 1n respect of

unterest had preceded service of the notice dated 7 January 1980, unless the claim for interest in the summons issued on

While the applicant's leased premises were unattended and closed, agents of Centrepoint entered the premises and re-took possession thereof late on 25 January 1980, and

thereatter Centrepoint excluded the applicant from possession

The applicant had before "the commencement day" of the lease paid $2,306.66 to Centrepoint in respect of rent, but the applicant had otherwise made no payment to Centrepoint in

respect of rent, "apportionable outgoings" or interest.

His Honour dealt with the question of affirmation as

"In my opinion the applicant had not affirmed or disaffirmed the agreement for its lease before it was dispossessed by the respondent. In the letter dated 16 November 1979 the applicant's right to abstain for the time being from electing between affirmation and disaffirmation was asserted. The respondent's reply by the letter received on 27 November 1979 impliedly invited the applicant to defer election and to defer any other change in the course which the applicant was then following until the answer of the respondent should be received. I do not consider that the giving of the notice dated 7 January 1980 requiring remedy of breaches of covenants should be regarded as the answer for which the applicant had been, in effect, asked to wait. The giving of the notice was a course of action available to the respondent under the terms of the lease and constituted an assertion by the respondent that the legal relationship between the applicant and the respondent with respect to the shop was still regulated by the provisions of the agreement for lease. Such an assertion was not

inconsistent with the assertions contained in the applicant's solicitors' letter dated 16 November 1979 (although allegations of breaches specified in the notice were contradictory of assertions in that letter), mor inconsistent with the intention expressed in the letter received on 27 November 1979. It may be inferred, from the terms of the letter dated 16 November 1979, that the applicant's directors then knew of the rights, which misrepresentation inducing the making of the agreement for lease conferred on 1t, to disaffirm or to affirm the agreement at its election. By continuing in possession of the shop the applicant may be said to have exercised rights which would not exist unless that agreement remained in force and to have thereby affirmed that agreement. But, as the letter suagests, and as I find, the applicant's directors and agents were not at that time aware of the falsity of the representation that the respondent would treat the applicant's tenancy as upon the terms as to rent which are stated in the form of application for tenancy. The accounts rendered and to be rendered before possession of the shop was re-taken by the respondent suggested that the respondent would not treat the tenancy as upon those terms, but the conversation between Messieurs Lucas, Powderly and Tallent on or about 21 November 1979 gave Mr Lucas ground for believing that the respondent would treat the tenancy as upon those terms. It might be said that no such a beliet could be held in the face of the notice given by the respondent on or about 8 January 1980. But even on 25 January 1980 the applicant's directors and agents could reasonably have expected an explicit answer to the letter dated 16 November 1979 and in all the circumstances I consider that the applicant's retention of possession of the leased premises until that time did not constitute an affirmation of the agreement for lease (see Cheshire and Fifoot: Law of Contract (3rd Aust ed) pp 324-5; Spencer Bower and Turner, op cit, paras 236-8, 288-93; and cases there cited; Sargent v ASL Developments Ltd (1974) 4 ALR 257; 131 CLR 634)." (Lucas v Centrepoint, above, at pp.496-7).

"The trial Judge's finding that the applicant had not affirmed the agreement for the lease of the premises was based on the fact that the Applacant's solicitors' letter of loth November 1979 was responded to by letter from the Respondent's solicitors dated 27th November 1979 saying the

letter would be answered and i1t never was. The learned trial Judge said that that letter impliedly invited the applicant to defer election and that at

that time the applicant was not aware of the falsity of the representation that the Respondent would treat the tenancy as upon the terms as toa rent stated in the tenancy application.

However that awareness must have existed by the time the notice of 7th January 1980 was served and the re-entry occurred on 25th January 1980. After those dates the applicant proceeded on the basis of the re-entry being ineffective, the agreement being

on foot and affirmed and it being entitled to possession."

In support of the latter submission we were referred to the writ issued by the applicant out of the Supreme Court of Victoria on 8 February 1980, the relief sought in paragraph 4 and sub-paragraph 5(a) of the application filed in this Court on 26 October 1981 and the terms of paragraph 11 and 12(g) of the statement of claim filed with that application which were later amended by an amended statement of claim filed on 19 October 1982. These matters were said to be only consistent with the applicant having treated the agreement as being on

The letter from the applicant's solicitors to Centrepoint's solicitors dated 8 January 1980 stated that "our client is contemplating to vacate the shop premises if no response 1S received within 14 days of the date hereof." Counsel for Centrepoint accepted that it could not really be said that the applicant had affirmed the lease prior to the expiration on 22 January 1980 of the period referred to in the letter, but maintained that the applicant had affirmed

the lease by the time 1t was excluded from possession of the

premises on 25 January 1980, and that this affirmation was

further evidenced or underlined by the later conduct of the

Counsel for the applicant submitted that the events subsequent to 25 January 1980 referred to by Centrepoint and said to demonstrate that the applicant's continued possession of the premises from 22 January onwards amounted to affirmation of the lease were all explicable by reference to the strategies of the applicant's legal advisers, and the applicant's expressed willingness to resume possession was conditional upon Centrepoint's agreeing that the terms of the

lease were as the applicant said they had been represented.

We consider that 1t was reasonable for the applicant to expect, up to January 25, that a reply would be received by its solicitors to their letter of January 8. In these circumstances there was ample evidence to justify his Honour's finding that the applicant had not affirmed the

agreement for lease and we see no reason why it should be

Reference will be made later to the only other ground relied upon by Centrepoint, that the learned trial judge should not have ordered that it pay the applicant's costs but

rather, that the applicant should have been ordered to pay

It will be convenient to turn next to the argument of

the applicant based upon s.79 of the Judiciarv Act 1903,

"The laws of each State or Territory including the laws relating to procedure evidence and the competency of witnesses shall except as otherwise provided by the Constitution or the laws of the Commonwealth be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

It was submitted that his Honour was in error in failing to hold that the section was applicable in the present case so as to pick up the effect of s.79A(1). of the Victorian

"(1) The Judge upon application shall in all actions for the recovery of debt or damages give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as he thinks fit from the commencement of the action until the entry of the judgment unless good cause is shown to the contrary over and above the debt or damages awarded by the court or jury."

Section 79A is in Pt VII of the Supreme Court Act 1958. Section 60 of that Act provides:

"The several rules of law enacted by Part VII of this Act shall unless' express provision 18 otherwise made be in force and receive effect in all courts whatsoever so far as the matters to which such rules relate shall be respectively

In the present case, the award of damages in favour of the applicant was based upon findings 1n favour of the applicant on the cause of action arising under s.52(1) of the Act, and causes of action arising under the common law in the exercise of the accrued jurisdiction of the court. These latter causes of action would otherwise have been tried in the courts of the State of Victoria and judgments upon them could have included damages by way of interest in accordance

Section 79 of the Judiciary Act 1s not limited to laws relating to procedure and evidence and the competency of witnesses but includes them in the laws of the State which subject to the exceptions set out in the section are binding on all courts exercising federal jurisdiction in that State. The policy of that section 1s that except as otherwise provided by the Constitution or the laws of the Commonwealth there should be uniformity in the law applicable to the resolution of a matter whether it is tried in a federal court in that State or by a court of that State. On principle, 1t seems that this policy should apply in a case such as the

present to a judgment based upon the law of the State.

Since judgment was delivered by the learned trial judge the High Court has had occasion to consider the question of

the effect of s.79 of the Judiciary Act in a remitter application in State Bank of New South Wales v The

Commonwealth Savings Bank of Australia (1984) 58 ALJR 394, 53

ALR 625. Gibbs CJ (at ALJR p.397, ALR p.629) referred to the view expressed by Mason J in Australian National Airlines Commission v Commonwealth (1975) 49 ALJR 338, that s.79 did

not render the provision in the Supreme Court Act 1970 (NSW)

which gave the Supreme Court of New South Wales power to award interest applicable to proceedings in the High Court,

"If that view 1s correct, of course s.79 equally does not render s.94 applicable in the Federal Court. The expression of opinion made by Mason J. was unnecessary for his decision, since the action in that case was not commenced until after the Supreme Court Act had come into operation and s.16(1) of that Act made it clear that s.94 was not intended to apply to proceedings already commenced, With certain exceptions which Mason J. held inapplicable. The operation of s.79 of the Judiciary Act 1n a case such as this raises very difficult questions, as the differences of opinion manifested in John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. (1973) 129 C.L.R. 65 reveal.

Without having heard full argument I would not express any concluded opinion on the question whether s.79 does render s.94 applicable to proceedings in this Court or in the Federal Court."

Lockhart, J in Hubbards Pty Ltd v Simpson, (1982) 41 ALR 509 at 525-6.

In Robertson's case Gibbs J (as he then was) held (at p.89) that a South Australian statute of limitations did not,

standing alone, refer to actions brought under s.li of the

Australian Industries Preservation Act and when applied by

virtue of s.79 of the Judiciary Act, 1t did not get an

extended meaning so as to include such actions. His Honour

"If the right owed nothing to State law, and the remedy could only be pursued ina federal court, the State Parliament could not legislate either to extinguish the right or bar the remedy".

(In the present case, the learned trial judge found in favour of the applicant against Centrepoint both in respect of breach of the common law and of contravention of s.52(1) of the Act. (52 ALR at p.480). He then turned, in the first instance, to consider damages for deceit. In the course of doing so, his Honour held (at p.514) that the applicant's claim for interest could not be justified by reference to s.79. However, 1t is clear that the cause of action for deceit owed everything to the law of the State of Victoria

McTiernan, A.C.J., held (at p.75) that on the true construction of the State statute 1t was not applicable to a proceeding under s.11, which was not an action "for penalties

damages or sums of money given to any party by any statute."

Menzies J expressed the opposite opinion (at p.80) and

"the words "in all cases to which they are applicable" in 3.79 must mean, therefore, cases in which this Court 15 exercising federal jurisdiction in the State and to which the State law would in terms apply were it not that the proceedings are in the Hagh Court. I

have had the advantage of reading the judgment of Mason J and I agree with what

he has written in fuller explication of the function of 8.79 of the Judiciary Act".

(In the present case this Court 1s exercising federal jurisdiction in the State of Victoria and in the course of doing so is enforcing rights which derive from the law of that State. It seems hardly appropriate to construe 5.79 in a fashion which would make part only of that law applicable to the grant of the appropriate relief, so that there would be a difference between the award to be made in this Court and that which would be made ina State court in respect of

Walsh J (at p.84) said that the State statute "should be held not to include in the actions to which it relates an

action which could never be brought i1n any court of that

Mason J (at p.95) observed that "the broad purpose of s.79 1s to ensure that the laws of the States are applied by courts in the exercise of federal jurisdiction. In general that purpose 1s achieved by the application of a State law

"To ensure that State laws dealing with the particular topics mentioned in the section are applied in the exercise of federal jurisdiction by courts other than State courts, it is necessary that State laws be applied according to the hypothesis that federal courts do not necessarily Lie outside their field of application. Section 79

courts lie within the field of application of State laws on the topics to which it refers, at least in those cases in which the State laws are expressed to apply to courts generally. This departure from the general principle that the section requires a State law to be applied according to its terms is justified, indeed demanded, by the clear requirement that State laws on the topics mentioned are to be applied in federal jurisdiction. Whether that requirement supports the broader view that a similar approach is to be taken in applying s.79 to substantive as well as procedural laws it 1s not now necessary to determine."

applicable by s.79 to the proceeding in the High Court.

Commonwealth (1975) 49 ALJR 338, the opinion expressed by Mason J was based upon his Honour's characterisation of the Supreme Court Act (at p.340) as "a statute

designed to define and regulate the powers and procedures of

With all respect to this opinion, it seems to us" that $s,79A of the Victorian Supreme Court Act 1958, while it addresses its command to the judge, 1s not so much' concerned with the definition and regulation of the powers and procedures of the Court as it is with conferring upon a party entitled to recovery of a debt or damages an additional right to receive damages by way of interest unless good cause is shown to the contrary. The command to the judge is merely

Blackburn J in Commonwealth v Crothall Hospital Services

(Aust) Ltd (1981) 36 ALR 567 at 571, pointed out that the

tact that a right is created by a section of an Act

case the Supreme Court Act 1970 of New South Wales), which is

almost entirely procedural, does not mean that the right

In Simonius Vischer & Co v Holt and Thompson (1979) 2

"Thus, although a provision is made in a and itself is procedural in form by providing a

proceedings, the provision, on examination, may not be procedural only, and may confer new substantive right, or destroy a past immunity. Section 94 1s in a= procedural

statute and, as indicated, 1s procedural form; but the power given 1s to create

obligation of a kind which did not previously from the right which did exist. A person owing

nature of interest until the person to whom the money was owed succeeded in obtaining a judgment. The enactment of s.94 removed that

immunity. The order for the payment interest pursuant to 8.94 cannot be unless the cause of action exists, but

National Airlines Commission case (above), his Honour there

respects s.79 does not in my view pick up and apply in this Court a provision which empowers @ particular court of a state to make orders and enter judgments in proceedings in that court. The relevant powers of this Court are

conferred by the Judiciary Act and the High Court Procedure Act 1903-1966, as amended; as I see it they are not to be supplemented by the operation of s.79 of the Judiciary Act in the manner suggested. Section 26A of the High Court Procedure Act, which provides that judgments of the Court shall carry interest, should be regarded as a comprehensive expression of the entitlement in this Court of a litigant to interest on damages to the exclusion of any provision in State law which would otherwise be made applicable by virtue of s.79",

So far as the first sentence of this passage is concerned, the present case can be distinguished because, by virtue of s.60 of the Supreme Court Act, s.79A 1s a provision applying to all Victorian courts having jurisdiction to determine "actions for the recovery of debt or damages". The language of s.60, when it speaks of "all courts whatsoever"

1s wide enough to apply to the Federal Court of Australia.

The balance of the passage, although unnecessary for his Honour's decision, as already noted, must of course have

Section 26A appeared in Part II of that Act, entitled "Procedure of the High Court", as part of Division 8, the

title of which was "Judgment and Execution". The provision

is now to be found as_ s.77N of the Judiciary Act 1903, in

Division 5 of Part XA of that Act, and the tities remain the

Section 52 of the Federal Court of Australia Act 1976

provides that "a judgment debt under a judgment of the Court

carries interest at such rate as is fixed by the Rules of Court from the date as of which the judgment is entered". It is to be found in Part VI of the Act under the heading "General" and the heading of the section itself is "Interest

As Ellicott J pointed out in the Crothall case (above, at p.585), historically "the question of interest on the judgment debt and the question of interest on the debt or sum certain and later on the money sued for have been treated as

two separate matters and different considerations have been

In our respectful opinion, s.52 should be regarded as dealing only with the question to which it in terms relates, namely interest upon a judgment debt from the date of entry. We do not consider that it should be construed as excluding the provision in Victorian law dealing with the award of "damages in the nature of interest" from the commencement of

In our opinion, the learned trial Judge should have

given effect to s.79A of the Supreme Court Act, which

commands a trial judge to give damages in the nature of

interest "unless good cause is shown to the contrary".

Counsel for the applicant stated that until the court made a finding as to whether there was an entitlement to

interest, 1t was impractical to make submissions as to the

His Honour saw and heard the witnesses and we think it preferable that he should hear the necessary submissions and exercise his discretion under the section, rather than that we should attempt to do so. The appropriate order in respect of this aspect of the case would be that the application he

remitted to his Honour for the purpose of his determining all

We do not find 1t necessary to express any opinion on

the alternative submission of the applicant that the power conferred upon the court to award damages under the Trade

Practices Act ss.82 and 87 itself includes a power to award

The next issue raised in the applicant's appeal related

"A further item of damage claimed was interest on moneys advanced by Mr. and Mrs. Lucas to the applicant and applied by the applicant in discharge of liabilities incurred by it in connection with the tenancy of the Centrepoint premises or in connection with the establishment or the conduct of the business in those premises. The applicant had neither funds nor bank account during the relevant period : the funds were advanced by Mr. and Mrs. Lucas and cheques in discharge of the applicant's liabilities were drawn on their account. The evidence justified a conclusion that the moneys provided were by way of loan and not gift, but not a conclusion that the applicant had incurred a liability to pay interest to Mr. and Mrs. Lucas on the money lent. I therefore hold that the claim cannot be sustained, without expressing any opinion whether, if the applicant had incurred a

liability to pay interest to Mr. and Mrs. Lucas on the moneys advanced, the amount of the liability would have been recoverable as

His Honour was invited to treat the lenders, Mr and Mrs Lucas, and the borrower, the applicant, as 1f they were one entity, but upon the facts as he found them, he regarded it as impossible to do so. His Honour distinguished the present case from Yorke v Ross Lucas Pty Ltd and Others (1982) 45 A.L.R. 299. He found that "the overdraft on which interest was charged was not the applicant's, nor did the applicant incur, as I have found, a liability to pay interest on the

These findings were clearly open to his Honour upon the evidence. We see no reason to disturb them and regard them

The applicant further submitted that his Honour should have awarded damages 1n respect of loss of profits and loss of capital gain for a period longer than the period of one year specified by the applicant in the particulars of its claim, because he observed that "the evidence might have justified a finding that the period was 'a little longer'". In our opinion, no good reason has been shown to justify this ground of appeal, particularly bearing in mind Centrepoint's valid termination of the lease and the applicant's duty to

The applicant also challenged as unreasonable his Honour's findings that the applicant should have taken steps to obtain an order restraining Centrepoint taking possession of the premises or should have paid rent at the rate of not less than $2,015 per month, the amount provided in the written application for tenancy, which his Honour' found applicable. We see no reason to disturb these findings. Accordingly we would not allow the appeal so far as it related to the disallowance by his Honour of the claim for $8,000, being alleged loss of stock on the premises at the

There was very little evidence as to this stock or the precise circumstances in which 1t came to be wasted. In any event its loss was related to the re-occupation of the premises by Centrepoint rather than to Centrepoint's deceit. His Honour held the re-occupation to have been lawful and

In respect of the applicant's claim for wages said to have been payable to Mr and Mrs Lucas by the applicant it was submitted that all three should have been treated as the one entity. Alternatively, it was said that "it should be presumed that wages would have continued to be paid to Mr and

His Honour found (at p.505) that the applicant would probably have made a trading profit in the conduct of the

business at Centrepoint during the year ended 31 April 1980

of about $5,000. In arriving at this figure, he treated as an expense, by which trading profit would have been reduced, salary of $200 per week to each of Mr and Mrs Lucas, because he thought that they would have caused the applicant to pay

"Each of Mr. and Mrs. Lucas has, 1f I am correct in that finding, lost that amount of $10,400 in respect of that year, although each will, 1f my findings are correct concerning the applicant's liability to pay each of them $3000 for their work in the business at the Centrepoint Mall, gain $3000 in respect of his work during a period of 15 weeks in that year. But the loss is theirs, not the loss of the applicant, and is not in my opinion recoverable as damages by the applicant."

During the course of the trial, there was discussion as to whether Mr and Mrs Lucas would seek leave to be added as applicants but, after due deliberation, they decided not to

do so. We see no reason to disturb his Honour''s findings on

The last matter referred to by the applicant was the deduction of $7,000 which was made from the item of damage in respect of purchase of equipment. This was the amount which it was found (at p.499) that the applicant could have recovered on the sale of the equipment, if it had exercised reasonable care to mitigate its loss. No argument was addressed to us in support of this ground of appeal and we do

It is convenient now to return to the second main ground of Centrepoint's appeal. This was based upon the payment into court which 1t made during the first day of the trial of an amount of s65,000. This was a greater sum than the damages of $51,431.16 which his Honour awarded to the applicant, in the light of the undertaking of Centrepoint that 1t would not seek to recover any part of certain costs incurred by 1t in respect of the preparation of the premises for occupation by the applicant or in respect of its occupation of them until 25 January 1980. Had this undertaking not been given, the damages might have been increased by some $12,500 (a sum calculated by counsel for Centrepoint) or some other

His Honour held (52 ALR at 528; 1 FCR 371 at 384-5) that the notice of deposit of the money did not comply with the requirements of Order 23 of the Rules of Court in that it was expressed to be "in answer to all causes of action and all breaches alleged which the applicant claims" and the words "and all breaches alleged" are not to be found in the prescribed form (Form 31). The meaning of those words was held to be uncertain, although one possible interpretation was that they constituted a proposal concerning the money referred to therein which was inconsistent with the provision of Order 23 because it sought to protect officers of Centrepoint who were not parties to the action. Accordingly

the notice was held to be so seriously lacking in compliance

with the requirements of Order 23 that it was invalid and

ineffective for the purposes of that rule. The argument before us failed to produce any satisfactory theory as to the intention of the draftsman of the notice or as to its true

His Honour held that the occasion had not arisen for the exercise of the court's discretion as to costs in accordance with the practice relating to the situation where a respondent makes a payment into court under Order 23 which exceeds the amount for which judgment is given. We respectfully agree with this finding. However this was not

Order 62 rule 27(2) authorises the court to take the fact that money has been brought into court, and the amount of it into account in exercising its discretion as to costs. In applying this provision, his Honour reached the conclusion that as Centrepoint had substantially failed to comply with the Rules, it was inappropriate that the applicant should be deprived of costs incurred after the payment in for failure to recover more than that amount if 21t might reasonably have been perceived that there was a substantial possibility that

"In estimating the likely result of the proceeding the applicant's legal advisers would, I consider, have been confident of an award of damages upon the cause of action

provided by s.82(1) of the Trade Practices Act 1974, but not confident of any other order in the applicant's favour. In paras.30 and 31 of my reasons for judgment claims for interest as components of the damages claimed are discussed and rejected. If the applicant's legal advisers had thought that the chance of success in obtaining some allowance in respect ot interest was substantial, that evaluation of those claims could not in my opinion be considered unreasonable. Acceptance of one or other of those claims would probably have taken the award of damages above $65,000. In those circumstances I do not consider that the applicant's failure to accept the money brought into court justifies an order which deprives the applicant of any of its costs of the proceeding. Order.23 and 0.62 r.27 and the practice as to costs which is founded upon those and similar rules of court give rigorous etfect to the policy that the parties to civil litigation should be induced to compromise. When a respondent fails in compliance with those rules in the serious way I have held that the respondent in this proceeding did, I do not consider that the applicant should be deprived of costs incurred after money is paid unto court for failure to recover more than the amount paid into court if a substantial possibility that the applicant would recover more than that amount might reasonably have been perceived by his legal advisers. No rule or practice or presumption fetters the exercise of the discretion as to costs in such a case as I conceive this to be, so far as I am aware, and in so far as the preceding sentence suggests that I am myself propounding some such a fetter, I disavow that intention. In all the circumstances of this case I just do not find cause for any order but that the costs follow the event."

We agree, with respect, with his Honour's formulation of the position and can see no grounds for interfering with his exercise of his discretion. We would only wish to add one or

Since, as his Honour explained in section 39 of his

judgment (pp.526-7) payments into court pursuant to 0.23 can

only relate to claims for relief in the form of the recovery of debt or damages, it is unsafe to try to encompass any further protection of the party paying in by relying on Form 31 with or without amendments to its prescribed form. If anything more is sought to be achieved, such as release from applications for injunctive relief or from other parallel proceedings, the better course would be to make the offer in a "without prejudice" tJletter, spelling out just what is antended, and indicating that the letter may be used in any

Finally, it 1s hardly necessary to point out that, in the view which we take about the applicant's entitlement to interest as part of 1ts damages, the applicant's final award, together with the amount involved in Centrepoint's undertaking not to pursue other relief, will almost certainly

exceed the amount paid into court and any questions relating

1. The appeal of the applicant be allowed with costs.

2. The order that the applicant recover against the

3. All questions as to the entitlement of the applicant to damages in the nature of interest be

Otherwise the orders of the court be affirmed. (We note that the undertaking recited in his Honour''s order incorrectly identifies the relevant years in which certain events occurred. "1978" and "1979" should be understood in each case as 1979 and 1980

I certify that this and the thirtytwo (32) preceding pages are a true and accurate copy of the Reasons for Judgment of Sweeney and Woodward Jd.

) ) VICTORIA DISTRICT REGISTRY ) No. V G 104 of 1984 ) )

QN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Appellant AND: T.N. LUCAS PTY. LIMITED Respondent IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. V G 109 of 1984 ) )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN : T.N. LUCAS PTY. LIMITED Appeliant AND: CENTREPOINT FREEHOLDS

Neaves J. In my opinion the appeal by Centrepoint Freeholds Pty. Limited ("Centrepoint") and the appeal by T.N. Lucas

Pty. Limited ("Lucas") should be dismissed and the judgment

So far as the appeal by Centrepoint 1s concerned, I

agree with the other members of the Court in thinking that Centrepoint has not demonstrated any sufficient reason to disturb the conclusion reached by the learned primary judge

that Lucas had not affirmed the agreement for lease before

it was dispossessed by Centrepoint on 25 January 1980.

I also agree that no sufficient ground has been demonstrated why this Court should disturb the order of the learned primary judge that Centrepoint pay Lucas' costs of

On those aspects of the matter I do not wish to add anything to what has been said by the other members of the

In support of the appeal by Lucas it was submitted that the learned primary judge was in error in failing to increase the monetary sum awarded as damages by an amount representing interest calculated, in respect of each item of loss, over an appropriate period and at an appropriate annual rate, so as to compensate the company for being deprived of the use of those moneys by reason of the delay between the date of the loss and the date of judgment in the proceeding. This submission bore a double aspect. First, it was said that such interest was a proper head of damage

to be awarded under sections 82 and 87 of the Trade

Practices Act 1974. Secondly, reliance was placed on

section 79 of the Judiciary Act 1903 which, it was arqued,

made binding on the Court in a proceeding under' those

sections of the Trade Practices Act 1974 the provisions of

section 79A of the Supreme Court Act 1958 of the State of

In relation to the first aspect, it was submitted that, unless such an allowance were made, the judgment for damages in respect of Centrepoint's contraventions of

sub-section 52(1) of the Trade Practices Act 1974 would not

afford the compensation which sections 82 and 87 of that Act

require. Section 82 provides that a person may recover the

amount of the loss or damage suffered by conduct of another

person done in contravention of a provision of Part IV or V of the Act while section 87 empowers the Court to make such

orders as it considers appropriate to compensate the person concerned in whole or in part for the loss or damage

lanquage of those provisions is not apt to require or authorise an award of damages by way of interest to recoup a

loss due entirely to delay in the payment of the money ultimately held to be due. Such loss is not, in my view, properly described as loss suffered by reason of conduct in

contravention of a provision of Part IV or V of the Act.

The power of the Court to include interest in the sum for which judgment is given in a proceeding for the recovery of money (including a debt or damages or the value of any goods) - indeed its obligation to do so unless good cause is shown to the contrary - 1s now the subject of legislative provision being section 51A of the Federal Court

of Australia Act 1976. That provision, however, applies

only to a cause of action arising after the commencement of the section, viz. 22 November 1984, and consequently has no application to the present proceedings. Hence the necessity

for Lucas to rely on the provisions referred to of the

Judiciary Act 1903 and the Supreme Court Act 1958 of the

Section 79 of the Judiciary Act 1903 provides that the laws of each State or Territory, including the laws

relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or

Territory in all cases to which they are applicable.

Section 79A of the Supreme Court Act 1958, at the date upon which the order for the recovery of damages was

""79A.-(1) The Judge upon application shall in all actions for the recovery of debt or damages give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as he thinks fit from the commencement of the action until the entry of the judgment unless good cause 1s shown to the contrary over and above the debt or damages awarded by the court or jury.

{a) authorize the granting of interest upon interest;

(bd) apply in relation to any sum upon which interest is recoverable as of right by virtue of any agreement or otherwise;

(c) affect the damages recoverable for the dishonour of a negotiable instrument;

(dad) authorize the allowance of any interest otherwise than by consent upon any sum for which judgment is pronounced or entered by consent;

(e) apply in relation to any sum on which interest might be awarded by virtue of section seventy-eight or section

(f) limit the operation of any enactment or rule of law which apart from this section provides for the award of interest.

(3) Where the damages awarded by the court or jury include or where the Judge in his absolute discretion determines that the damages so awarded include any amount for -

(a) compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest;

incurred or suffered after the date of the award; or

(c) exemplary or punitive damages - the Judge shall not allow interest in respect of any amount so awarded or in respect of so much of the award as 1n his opinion represents any such damages.

(4) The Judge may if he thinks fit request a jury to specify in its verdict any amount included in the verdict in respect of the matters referred to in sub-section (3) of this section."

context it clearly refers to a judge of the Supreme Court of

It appears from the reasons for judgment of the learned primary judge that no statutory authority was relied upon by counsel to support an allowance of interest on damages in respect of the common law cause of action in deceit: the claim was made only in respect of the cause of action under

sections 82 and 87 of the Trade Practices Act 1974.

Notwithstanding this and the fact that neither the notice of appeal nor the written outline of submissions handed to the Court by counsel for Lucas asserts that an allowance for interest should have been made in respect of the common law

cause of action, it is appropriate that the application of

section 79A of the Supreme Court Act 1958 be considered in

relation to that cause of action as well as in relation to that

enact a statutory cause of action enforceable in any court possessing the appropriate jurisdiction. It does not create a right to interest but confers a discretion upon the judge of the Supreme Court, albeit a discretion which must be exercised in favour of a successful plaintiff in the absence of good cause being shown to the contrary. The judge must exercise a judicial discretion both in determining the rate of interest and in calculating the amount to be allowed in addition to the debt or damages awarded by the court or jury. The power which the section confers is one exerciseable only in proceedings of the kind to which the section refers: the benefit which it confers cannot be the subject of separate proceedings. The section postulates that the plaintiff has established in the Supreme Court a cause of action sounding in debt or damages and that the monetary amount recoverable under that cause of action has been ascertained. The provision is, in form and in

substance, a command directed to the judge as to how he is to

act in ascertaining the amount to be added to the monetary sum awarded in respect of the cause of action in order to arrive at the sum for which judgment is to be entered. The nature of the provision, which is within Part VII of the statute, does not,

in my opinion, take on a different character by reason of the

provisions of section 60 of the Act. That section provides:

"60. The several rules of law enacted by Part VII of this Act shall unless express provision is otherwise made be in force and receive effect in all Courts whatsoever so far as the matters to which such rules

relate shall be respectively cognisable by such Courts." The effect of that provision is simply to direct a similar

command to a judge of any other court of the State of Victoria

determining an action of the kind mentioned in section 79A.

It may be accepted as the received opinion that, subject to a qualification to be mentioned, section 79 of the Judiciary Act 1903 does not enable a court exercising federal

jurisdiction to give an altered meaning toa State statute which it 1s required to apply. The qualification to the general principle is that a State law may in some circumstances be rendered applicable by section 79 toa court exercising federal jurisdiction which is not a State court notwithstanding that the law according to its own terms is limited in its application to the courts of the State: see Maquire v. Simpson (1977) 130 C.L.R. 362 at p.376 per Gibbs J. (as the Chief

Justice then was). That qualification derives from what was

said by the High Court in John Robertson & Co. Ltd. v. Ferquson

Transformers Pty. Ltd. (1973) 129 C.L.R. 65. It is sufficient

to refer to the following statement in the reasons for judgment

"The broad purpose of s.79 is to ensure that the laws of the States are applied by courts in the exercise of federal jurisdiction. In general that purpose is achieved by the application of a State law according to its terms. Indeed, s.79 contains no express provision which would enable a court exercising federal jurisdiction to alter the language of a State statute and apply it in that altered form. However, the presence of the words 'ancluding the laws relating to procedure evidence and the competency of witnesses' exhibits a clear intention that State laws relating to those topics should apply to federal jurisdiction. This purpose would fail partly in its objective if State laws on these topics are to be given a literal application under s.79 by courts other than State courts. State laws dealing with matters of procedure, as the earlier consideration of s.37 of the Limitation of Actions Act has shown, are often expressed so as to apply to State courts only, and in some instances they refer to particular State courts.

To ensure that State laws dealing with the particular topics mentioned in the section are applied in the exercise of federal jurisdiction by courts other than State courts, it 1s necessary that State laws be applied according to the hypothesis that federal courts do not necessarily lie outside their field of application. Section 79 requires the assumption to be made that federal courts lie within the field of application of State laws on the topics to which it refers, at least in those cases in which the State laws are expressed to apply to courts generally. This departure from the general principle that the section requires a State law to be applied according to its terms is justified, indeed demanded, by the clear requirement that State laws on the topics mentioned are to be applied in federal jurisdiction. Whether that requirement supports the broader view that a similar approach is to be taken in applying s.79 to substantive as well as procedural laws it is not now necessary to determine."

Section 79A of the Supreme Court Act 1958 is not, in

my view, adequately described as a law "relating to procedure" within the meaning of that expression in section 79 of the Judiciary Act 1903. It partakes of the character of a substantive provision which will, in the casés to which it applies, operate to increase the amount awarded by way of damages toa _ successful plaintiff. Thus, the consideration which Mason J. regarded as decisive in the passage cited, namely the express inclusion in section 79 of a reference to the laws relating to procedure evidence and the competency of witnesses will not, of itself, provide a sufficient basis for hoiding that section 79 operates to make applicable in this

In my opinion, to conclude that section 79A was, by

virtue of section 79 of the Judiciary Act 1903, made binding on the learned primary judge when determining the amount for which

judgment was to be entered in this case would not simply be giving to that provision an operation which its language is wide enough to encompass but would be giving it a different meaning from that which it bears as an enactment of the State of Victoria. It would involve converting it into a provision requiring a judge of this Court to carry out the function which

by its terms it confers on a judge of the Supreme Court of

Victoria when hearing and determining an action of the kind to which it refers. This, in my view, it is not permissible to do.

Support for the view that section 79 of the Judiciary

Act 1903 does not have the operation for which Lucas contends 2s also to be found in the opinion expressed by Mason J. in Australian National Airlines Commission v. The Commonwealth

(1975) 49 A.L.J.R. 338 and in the decision of Lockhart J. in

Hubbards Pty. Ltd. v. Simpson Ltd. (1982) 41 A.L.R. 509 at pp.525-6. Mason J., speaking of section 94 of the Supreme Court Act, 1970 (N.S.W.) said at p.525:

"No matter how widely it may travel in some respects s.79 does not, in my view, pick up and apply in this court a provision which empowers a particular court of a State to make orders and enter judgments in proceedings in that court."

Mason J. referred to the Supreme Court Act, 1970 (N.S.W.) as "a statute designed to define and regulate the powers and procedures of the Supreme Court". It may, therefore, be supposed that his Honour regarded section 94 of that Act (a section which is somewhat different in its terms from section 79A of the Victorian statute here in question) as a law relating to procedure within the meaning of that expression in section 79° of the Judiciary Act 1903. Notwithstanding that, Mason Jd. did not regard s.94 of the New

South Wales Act as fulfilling the requirements necessary to

fall within the qualification which he had enunciated in John

Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. (supra)

and to which reference has already been made. A fortiori, a provision such as section 79A of the Victorian statute which, as I have said, partakes of the character of a substantive

provision is mot to be regarded as falling within that

Judiciary Act 1903 and the High Court Procedure Act 1903 an

expression of the legislature's intention that, in relation to

proceedings in the High Court, the only entitlement to interest on damages was to be the provision contained in section 26A of the High Court Procedure Act 1903 that judgments of the Court should carry interest. There being, therefore. other provision in the laws of the Commonwealth, section 79 of the Judiciary Act 1903 did not operate to make section 94 of the Supreme Court Act, 1970 (N.S.W.) binding on the High Court. Lockhart

J. in Hubbards Pty. Ltd. v. Simpson Ltd. (supra) took a similar

It is also to be noted that the reasoning of Walsh J.

and of Gibbs J. (as he then was) in John Robertson & Co. Ltd.

v. Ferquson Transformers Pty. Ltd. (supra) also leads to the

conclusion that section 79 of the Judiciary Act 1903 cannot

operate to make applicable the provisions of section 79A of the

Supreme Court Act 1958 to a proceeding in this Court for damages for breach of section 52 of the Trade Practices Act 1974, that being a proceeding which could not be commenced in

Federal Court of Australia Act 1976, contending that the claim

for pre~judgment interest on the damages awarded was a matter not otherwise within the Court's judisdiction which was "associated with" the matters in which the jurisdiction of the

Court had been invoked. In my opinion this argument has no

For the above reasons I am of opinion that the learned primary judge was correct in declining to entertain the application by Lucas for an award of interest upon the assessed

In relation to the other grounds of appeal argued before us on behalf of Lucas, I agree with the other members of

the Court that the findings of the learned primary judge were

Clearly open to him on the evidence and no sufficient ground

has been demonstrated upon which this Court should interfere

should be dismissed and the judgment appealed from affirmed.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.