HIS HONOUR: On 17 March 2020, the Court issued and entered orders finalising the proceedings and reserved one issue raised by the plaintiff by Motion on notice, relating to personal injury damages said to have been suffered by one of the consumers.
At the hearing of the Motion and the proceedings for the making of final orders, the plaintiff did not press the order sought by the Motion relating to [557] of the Court's judgment of 31 December 2019. The Motion was filed and agitated at a point in time before entry of judgment. Further, the plaintiff's Motion was filed within 14 days of the judgment, being a reference to the Reasons for Judgment delivered by the Court. [1]
[3]
Jurisdiction of the Court
It is necessary to more clearly state the timing of the Reasons for Judgment, the orders of the Court and the Motion. On 31 December 2019, the Court directed the plaintiff to serve the defendants with a draft minute of order reflecting the Reasons for Judgment that had been delivered. That draft minute was to have been served on or before 10 February 2020 and to be sent to the Court by 24 February 2020, together with any note relating to any agreement that had been reached in relation to said orders.
In the absence of any agreement, the defendants were to have filed any proposed minute of order prescribing that which they submitted reflected the Reasons for Judgment by 4 PM on 24 February 2020.
On 26 February 2020, the Court directed the defendants to file any submissions on any matter, other than a stay pending appeal, by 9 March 2020. The Court also directed that the plaintiff respond by submissions to be filed by 6 March 2020. The issues raised on the applications and the nature of the orders finalising the proceedings were listed for hearing before the Court, as presently constituted, on 17 March 2020.
At the hearing on 17 March 2020, the defendants appeared by teleconference. After hearing the parties on any further submissions, beyond the written submissions, the Court made orders in or to the effect already noted. Notwithstanding the withdrawal of the plaintiff's Motion, the Court reserved on the "correctness" of [557] of the Reasons for Judgment in the substantive hearing.
It was clear from the proceedings on 17 March 2020 that the defendants had appealed the whole or substantially all of the judgment issued by the Court. On one view, that appeal may have been premature, given that judgment had not issued, but Reasons for Judgment had.
The Motion that was withdrawn on 17 March 2020 was a Motion, notice of which was filed on 6 January 2020, namely, within 14 days of the delivery of the Reasons for Judgment and before the entry of judgment.
The original Motion relied upon the inherent power of the Court to reopen a hearing after judgment. The issue in question was the dismissal by the Court of a claim for compensation for personal injury for one of the consumers, Mr John Pestridge, who, it was said, suffered depression as a result of the conduct of the defendants, which the Court accepted.
As a consequence of the foregoing timing, the Motion to "recall" [557] of the Reasons for Judgment [2] arose at a time when the Reasons for Judgment had issued, but judgment had not and, a fortiori, judgment had not been entered. As already stated, the plaintiff relied upon the inherent power of the Court.
Courts have implied powers and superior courts of record of general jurisdiction have inherent powers.
It is trite that reasons for judgment are not the judgment of the court. The judgment of the court is entered and forms part of the record of the proceedings and, at the least at common law, absent statutory expansion, forms the basis for certain writs or orders in the nature of a writ. [3]
Ordinarily, the reasons for judgment of a court could not form part of the record. The major exception to that course was when, in criminal proceedings, in particular, the judge's note on an Indictment included the reasons for sentence by express note. The same exception applied in civil proceedings by virtue of the note of the presiding judge.
Nevertheless, in that case, the reasons for judgment form part of the record because the judge's note expressly made it so. By virtue of s 69 of the Supreme Court Act 1970 (NSW), reasons for judgment are now part of the record for the purpose of judicial review under that provision.
There are two quite distinct periods in the issuing of judgment, which periods, at least theoretically, determine the ability to alter judgment or orders. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to such earlier period, the High Court, stated the principle in the following manner:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." [4]
On the other hand, after judgment has been entered, there are only three bases upon which a judgment or order may be re-opened and amended and they are:
1. the "slip" rule;
2. the power to amend where the intention of the court has not manifested in the judgment; and
3. the capacity to allow the opening of orders made in chambers.
In, Bailey v Marinoff, [5] Barwick CJ said:
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."
In, Bailey v Marinoff, supra, Menzies J said:
"This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognize the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end." [6]
The judgment with which the High Court was dealing in Bailey v Marinoff was the result of self-executing orders, the effect of which was that proceedings were dismissed. The Court of Appeal purported to reinstate the matter into the list, notwithstanding the nature of the orders dismissing the proceedings.
The High Court also dealt with the issue of the reopening of orders in DJL [7] and said:
"[34] The common law courts, as superior courts of record, had 'full power to rehear or review a case until judgment [was] drawn up, passed, and entered'. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders.
[35] The Court of Chancery had power to re‑open and rehear cases which had been tried before it, even after the decree had been entered. The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded in In re St Nazaire Co. However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal. [8] (Footnotes omitted.)
In the broader sense, a court has power to alter reasons for judgment. However, in circumstances where there is a right of appeal, which is in the process of being exercised, the reasons for judgment of a court ought not be altered to vary the judgment in a manner inconsistent with the reason originally issued. There are exceptions, even to that proposition.
As already stated, the reasons for judgment are not the judgment of the Court. The reasons for judgment may be altered at least as widely as the Court may alter the judgment itself. If, however, the Court has proceeded, to paraphrase the High Court in Autodesk, supra, according to a misapprehension of the facts or the relevant law, which misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing, the Court is entitled to reopen the proceedings.
There are other bases upon which reasons for judgment may be altered. For example, there may be an infelicitous expression that could be corrected without altering the reasons themselves or the rationale for the judgment.
Reasons for judgment that are delivered ex tempore are, almost universally, revised. This will occur even in circumstances where the reasons may be inconsistent with that which was originally published.
It will not happen, however, when the inconsistency alters the intention of the judicial officer in publishing the judgment. Thus, for example, an incorrect insertion of the word "not", or its omission, may be corrected in revising reasons for judgment. Similarly, a mistaken reference to the plaintiff instead of the applicant, or indeed the defendant may be corrected.
Over and above all of the foregoing, judgment may issue and be entered before reasons are published, when urgency requires it and the judge has reserved reasons. [9] In the Court of Appeal in Victoria, [10] the Court said:
"[49] The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons - Smith v. Australia and New Zealand Banking Group Ltd.; Sherpa v. Anderson; Mulvena; Re Harrison's Shares Under a Settlement. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer, L.J. in Bromley v. Bromley (No.2), 'put a different complexion on the issue in dispute'. In Nakhla v. McCarthy Woodhouse, J. said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v. Province of Nova Scotia, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.
[50] An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v. Beesley. In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published 'Reasons for Decision' in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen, J. held that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held that, in the circumstances, the conviction could not stand. More recently, in Todorovic v. Moussa leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, 'I do not accept [X] as an accurate witness'. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X's evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment.
[51] It seems, however, that ordinarily, even after judgment has been entered, it is permissible to change the given reasons provided that in substance they do not become different reasons as a result of the changes and provided the alterations are made within a period that is not unduly long in all the circumstances. Thus, it is clear enough, for example, that a judge can alter the transcript of the reasons at any time to remove an error brought about by an administrative act which related to the compiling of the reasons - Nakhla; Bromley. In Bar-Mordecai v. Rotman it was held that ex tempore reasons can be altered by a judge provided the substance of them is not changed, nor are the orders which they sustain. There is no reason in principle why a like position should not apply to written judgments that have been published. It is common practice for judges to make changes not only to reasons that have been given ex tempore, but also to written reasons and in the latter case to make changes to them between the time they are published and when they become the subject of an authorised report. For example, in Duke of Buccleuch v. Inland Revenue Commissioners Lord Reid and Lord Guest did not question the correctness of the action of Sankey, J. in deleting in the version that was later published in the Law Reports a paragraph of his reasons in Ellesmere (Earl of) v. Inland Revenue Commissioners, which had been published in the Law Times. In fact, Lord Reid considered that Sankey, J. was wise to have deleted that paragraph, given that his Honour must have had a reservation about its correctness."
Following the judgment of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [11] and, even before then, the foregoing statement should be treated as binding and should be departed from only if the judgment is plainly wrong. It is not, in my view, plainly wrong. Indeed, with great respect to the Victorian Court of Appeal, the foregoing comments are plainly correct and I apply those statements of principle to the application that is currently before the Court.
[4]
Consideration
As a consequence of the foregoing, the Court has jurisdiction or power to recall [557] of the earlier judgment and reconsider the issue. The Court was reluctant so to do, because of the existence of an appeal, which had yet to be heard. The appeal has, now, been heard, although judgment is reserved.
The terms of the Reasons for Judgment at [557] reflect the provisions of s 72 of the pre-2011 Fair Trading Act 1987 (NSW) (hereinafter "the FTA"). The provisions of s 72(1A) thereof refer to loss or damage arising from a contravention of Pt 5 as not including, relevantly, personal injury. However, the "depression" arose later in time than 2011.
Moreover, and more importantly, the damages that are said to arise in relation to Mr Pestridge's depression may also arise under s 43 of the FTA, which is expressly excluded from the exception to loss and damage described in s 72(1A) and to which reference has already been made. As a consequence, the Court's reliance upon the provisions of s 72(1A) of the FTA to deny to Mr Pestridge damages for personal injury from the unconscionability claim was incorrect.
The exclusion for damages arising from personal injury does, however, apply to the plaintiff's case for misleading or deceptive conduct, which arises under s 42 of the FTA. To the extent that the damages would arise in relation only to the successful claim for misleading and deceptive conduct, damages for personal injury would not be available. However, the plaintiff's success was not so confined.
Frankly, the Court's reliance upon the exception in s 72(1A) of the FTA was an incorrect reliance upon damages in relation to unconscionable conduct. Nevertheless, if the Court were required to deal with it on the basis of the unconscionable conduct, other difficulties arise.
Leaving aside for present purposes the distinction, which has since been overturned, between damages and mere distress, there are significant problems with the claim on behalf of Mr Pestridge. First, the figure of $30,000, which is claimed, is not justified by any submission or any evidence.
Secondly, the claim itself was not pleaded. There was no medical evidence nor any evidence suggesting that medical attention was sought and obtained in relation to this "depression".
The difficulty is that the term "depression" is used both in an ordinary sense and in a technical sense. When the Court accepted that Mr Pestridge had "suffered depression" as a result of the conduct of the defendants, the term was being used in the ordinary English sense and not in the technical sense. There is no evidence before the Court upon which the Court could find, on the balance of probabilities or even as a suggestion, that Mr Pestridge was suffering clinical depression. This raises a more subtle difficulty.
[5]
Endnotes
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A).
Commissioner for Fair Trading v Jonval Builders Pty Ltd [2019] NSWSC 1893 (hereinafter "the Reasons for Judgment).
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58.
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6, per Mason CJ at [4].
Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49.
Bailey v Marinoff, supra, at CLR 531-532.
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17.
DJL, supra, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [34]-[35].
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 at [38]-[40] and the cases cited therein.
Fletcher Construction Australia Ltd, supra, per Chernov JA (Charles and Vincent JJA, agreeing).
FTA, s 72(1A)(b).
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 September 2020
If, as may now be the case, mere distress can be the subject of an award of damages and mere distress is not clinical depression or a personal injury, then the exemption in s 72(1A) of the FTA may not apply, even in relation to damages arising from unconscionable conduct. Whether the exemption applied would depend on whether "distress" or non-clinical depression was a "physical or mental condition." [12] I doubt that it is.
Nevertheless, now that the Court is required to deal more completely with the issue, the Court, as presently constituted, takes the view that there is no evidence of any personal injury such as clinical depression. Nor is there evidence upon which the Court could, on the balance of probabilities, conclude that the level of distress suffered by Mr Pestridge was greater or less than the level of distress that he would otherwise have suffered were it not for the conduct of the defendants. Nor is there evidence which, on the balance of probabilities, discloses distress at a level greater or lesser than any other consumer to which the judgment refers.
In all of the circumstances, whether or not the Motion would have been or was to be withdrawn, the Court does not consider that the plaintiff has established that Mr Pestridge is entitled to compensation for "depression" and the claim for damages in the amount of $30,000 is denied.
As a consequence of the foregoing and given that the appeal is reserved, the Court is not minded to withdraw the terms of [557] of the Reasons for Judgment.
The Court makes the following orders:
1. Proceedings dismissed;
2. No further order for costs.