Hartley Poynton Ltd v Ali [2005] VSCA 53

Hartley Poynton Ltd v Ali [2005] VSCA 53 - VSCA 2005 case summary — Zoe

[10]

"(1) Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate: Provided that this sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other. (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person the damages recoverable for the benefit of the estate of that person - (a) shall not include any exemplary damages; (b) in the case of a breach of promise of marriage shall be limited to such damage (if any) to the estate of that person as flows from the breach of the promise to marry; (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action - (i) shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included; (ii) shall not include any damages for his pain or suffering or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life; (iii) shall be calculated without reference to the future probable earnings of the deceased had he survived and without any allowance for the loss of his earning capacity that relates to any period after his death. (3) ... [Provisions are here made relating to the survival of actions against the estates of deceased persons, though not in identical terms to those contained in sub-section (2). Certain qualifications of those rights are set out in sub-sections (3A) and (4).] (5) The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation from any rights conferred on the dependants of a deceased person by Part III of the Wrongs Act 1958, and this section shall apply in relation to causes of action under the said Part III as it applies in relation to other causes of action not expressly excepted from the operation of sub-section (1) of this section."[3]

[30]

What may be gathered from this esoteric law and its application is that it was common for defendants to raise a plea in abatement and to hope thereby that the plaintiff's personal representative either would not persist or would make some further error which would make it impossible to take or pursue proceedings thereafter. But it is also important to understand that, until the statutory amendments of the procedural rules, the death before verdict of a sole plaintiff always resulted in abatement of the action itself, whether or not it was capable of revival and whether or not the defendant then had a more substantive defence to the claim, e.g. non-survival of the cause of action. Consequently the absence or otherwise of a cause of action and whether or not an existing right "died" with the plaintiff was largely irrelevant in the first place to the taking of such a plea, for an action could not proceed in circumstances where the plaintiff (or defendant) had died (or in equity it could not immediately proceed). It is also important to realise that cases determined before the abolition of pleas in abatement arising out of the death of a party were not universally resolved by the application of the maxim actio personalis moritur cum persona, although that often would be the case, but rather by reason of the simple necessity arising from the death of a party that the action could no longer proceed as originally constituted. It may also be seen that this formal defect resulted in numerous applications, some of which resulted in orders being made retrospectively, or nunc pro tunc, in order to save the action as originally constituted, but in which no issue arose as to the right of a personal representative to pursue the claim or of a plaintiff to pursue the claim against the personal representative of the deceased person. Thus it by no means follows that, where orders having a retrospective effect were made during this early period, any issue was or could have been canvassed as to whether the cause of action in or against a deceased person survived against or in favour of an executor or other personal representative.

[51]

On this appeal counsel cited one of the cases noted to the report as describing an order or judgment nunc pro tunc in relation to a cause of action which, so it was argued, could not then have survived against the defendant's personal representative, the defendant having died after the Court had taken time to consider its decision: Craven v. Hanley[56]. Clearly it was an action in trespass, although, having regard to Sherrington's Case and the three statutes which ultimately became s.25 of the Administration and Probate Act 1928, it does not follow conclusively that there was no cause of action which might have survived against the defendant. There certainly was argument, but the Court determined that the defendant's executor was not to blame for joining an immaterial issue and ought not to suffer by the Court's having taken time to consider its decision.[57] But again it is critical to notice that the defendant had obtained a verdict while he was alive and that the reported issue arose when the plaintiff moved in arrest of judgment. On this occasion the original verdict was set aside and the plaintiff, having won on the legal argument, obtained leave to sign and enter judgment nunc pro tunc because the trespass was (otherwise) confessed by the plea. The difficulty, however, facing the respondent in relying on this particular judgment is that it was in effect an appeal and not a case relating to the obtaining of a primary judgment. There are ordinarily considerations of a different kind which have always given appellate courts in these circumstances the discretion, used very cautiously, to antedate orders to the time of trial rather than at the date that the appellate court makes its findings: cf. Ryan v. Davies Bros, Wing Lee v. Lew[58] and Nicol v. Allyacht Spars Pty. Ltd. (No. 2)[59]. Again in another case cited in the reporter's footnote to Cumber v. Wane, Astley v. Reynolds[60], an action in assumpsit, a case was reserved, but at what stage it is not clear. In the end the plaintiff obtained judgment but the defendant had died pending the argument, so that judgment was ordered to be entered nunc pro tunc, in reliance on Cumber and others. There seems not to have been any argument on the issue.

[76]

This was the flimsy material upon which the Vice-Chancellor sought to rely in his decision in Turner v. London and South-Western Railway Co. Although some of the cases mentioned above had been referred to in various works of practice such as Daniell and Seton's Judgments and Orders[105] over the years, none had given rise to any discussion of principle. There is little doubt that in his reasoning the Vice-Chancellor was concerned as to the precise nature and effect of orders nunc pro tunc, but he nevertheless saw his way clear, at least in the circumstances of that case, to order that his judgment be entered "as of the day when the argument terminated"[106]. He did so, nevertheless, in a case where no issue as to the actio personalis rule could arise and where it seems there was no suggestion of prejudice to any party. Indeed he made clear that in exercising his discretion certain factors were not to be ignored, in particular his conclusion that he did not "think that any injustice can accrue to anybody else in doing that, either as between different judgment creditors or persons having the benefit of judgments in the present state of law".[107] He concluded[108]: "Therefore there is apparently no benefit or loss to accrue to anybody by the course being taken of antedating the judgment." It may be that his Honour intended that last statement to refer to benefits or losses accruing to third parties, but his language was general and seemed consistent, at least, with common law authority. It is harder to be confident, with respect, that the Vice-Chancellor had correctly discerned the basis for antedating orders in the Court of Chancery. There was no doubt a practice, carefully recited in the footnotes to his judgment, of treating all decrees and orders, when passed and entered, as operating from the day of their pronouncement and that this applied notwithstanding the failure to comply with a General Order of 1691 requiring the entry of decrees and orders within a period of effectively twelve months.[109] Orders as of course could be obtained to ensure that the ultimate order spoke as at the time judgment had been delivered and the decree pronounced, and a good proportion of a few cases cited (as well as several others that I have looked at) were simply examples of the court giving leave after some years to enter decrees out of time and as of the day of judgment.

[98]

There remains one other English case which raised the issue of antedating in a somewhat different context from the cases I have so far been discussing. It may nevertheless be seen to be an example of the Court's caution in making an order speak from a time earlier than when judgment is pronounced, but in the context of a proceeding to rectify the Register of Trade Marks and to declare that a trade mark ought to be removed from that register: see Re Keystone Knitting Mills' Trade Mark[134]. The seven-year limitation period for taking such proceedings expired between the time the proceeding was commenced and the time a preliminary but conclusive point was resolved in favour of the applicants. The respondents, however, had taken objection on the ground that it was too late for the application to proceed and then appealed on the ground that the judge had wrongly antedated his order to a date during the hearing and before the seven-year period elapsed. The Court of Appeal rejected the appellant's claim on the merits but disapproved the judge's decision to antedate his order. The relevant time in that kind of proceeding for determining the validity of the trade mark was the time when the proceeding was commenced.[135] Lord Hanworth, M.R. said[136] that he had "grave doubts whether the power contained in [O.XLI r.3] can be used to defeat the right of a party if it has been acquired at the time when the judgment is given". Lawrence, L.J. added[137] that there was no need for the direction to antedate the order because either the judge had jurisdiction to make it when the case came before him or he had no such jurisdiction. "The existence or non-existence of a jurisdiction does not in my opinion depend upon whether or not the judge who hears the case is minded to exercise any discretion he may have to antedate his order, or is not so minded". Russell, L.J., in a passage not infrequently cited, said[138] that he did not "see how by antedating his order he could confer upon himself a jurisdiction which he did not otherwise possess". That aspect of the decision has been cited with approval on numerous occasions and is not, in my opinion, irrelevant to a consideration of the extent of the power of courts to make orders nunc pro tunc. See, e.g., Jeffery v. Jeffery[139] and Hereward v. State Rail Authority of New South Wales[140].

[115]

The last case has been cited, not because of its ultimate binding authority on any specific issue (and there has been, I gather, some dispute as to that, at least in the past), but because it may suggest an approach to the making of antedated orders relevant to present circumstances. Nor is it desirable to concentrate too closely on cases arising out of divorce and family law proceedings, for the rules as to abatement of those proceedings have been the subject of controversy over the years and are now largely thought to be largely a matter of statutory construction. For example, one of the next group of cases, In the Marriage of Sims[163], a decision of the Family Court of Western Australia, was itself overturned by the Full Court of the Family Court a year later[164], but that decision itself, even though frequently cited on the issue of antedating orders, has partially been overcome by legislative changes discussed, in particular, in Fisher v. Fisher[165]. It is sufficient to say that, whatever propositions may be necessary for resolving those questions of statutory construction, whether in the family law or some other context, here the plaintiff's claim was in tort for negligence, a cause of action conventionally held to be covered by the actio personalis rule. Consequently, I shall not burden this already overlong judgment with analysis of authorities primarily concerned with statutory construction, unless they are otherwise binding or provide usefully authoritative insights into the issues presently before the Court. Some, however, must be briefly noted, since they deal with the issue whether judgment can be given nunc pro tunc speaking as from a date before the death of a party in circumstances where a cause of action has not survived (for any reason) beyond an earlier date, bearing in mind that once it has been determined that a cause of action does survive in an unqualified form, then ordinarily it is of little consequence what date is chosen from which the judgment speaks.

[137]

The conclusions I would suggest should be drawn from common law and Chancery practice as to antedating, as developed by Australian courts (but overlooking certain misconceptions which appear to have crept in inadvertently), are as follows. First, the power of the courts to antedate orders and judgments, which comprehends from its terms the making of orders nunc pro tunc, is derived from the Court's inherent jurisdiction or, as expressed in the courts of common law, was a power derived from the common law: see Isley's case[205]; Copley v. Day[206]; Evans v. Rees[207]. Secondly, as Parke, B. said for the Court of Exchequer in Heathcote v. Wing[208] (a case frequently cited, e.g. in Clarke[209]) that, in making an order nunc pro tunc, "it is only for a delay of the Court in doing justice that the judgment can be so entered". Thirdly, that proposition might properly be expressed in more generous terms as to circumstances justifying late entry, but it was always subject to the qualification that the Court was accustomed to allow a judgment to be entered nunc pro tunc, "unless the delay was occasioned by the laches of the plaintiff, or those representing him, or some prejudice would arise to the other party, to which he would not otherwise be subject": Miles v. Bough per Wightman, J. (for the Court of King's Bench)[210]. Fourthly, the power to direct judgment nunc pro tunc after the death of a party, whether plaintiff or defendant, was confined in the common law courts to obtaining the entry of judgment after there had been a verdict or an interlocutory or other step entitling one party or the other to succeed in the cause. That is explicitly preserved by r.49.04, as it was in the past by O.XVII r.1. Fifthly, the power of the courts exercising equitable jurisdiction to deliver judgment as at the last day of trial or hearing date must be confined by the requirement of Hall, V.-C. that it can only be done if no prejudice will be caused to any party.[211] This statement must mean that no prejudice should be caused other than in respect of the right to insist on formalities such as the reconstitution of a suit by revivor or otherwise; in other words, judgment may be pronounced nunc pro tunc so that the deceased party may remain in form on the record. If a further step had to be taken on behalf of the deceased party's interests, it seems that the solicitor's authority to act was terminated and a personal representative had to be substituted at that stage; cf. Man v. Ricketts per Lord Lyndhurst, L.C.

[153]

It is easy, perhaps, to assert that the plaintiff or his personal representative would be unfairly dealt with if the law required such a course to be taken, for it was argued that it would be merely an accident of fate which would deny the original plaintiff his claim to exemplary damages and that that sum or what remained of it, should thereby pass to the respondent or executor. In a sense that may be so but that it also can be said of all claims which are affected by s.29 of the Administration and Probate Act and likewise complaint might be made if there were any change to the plaintiff's rights after the cause of action had arisen, even before the action was commenced or the trial got under way. It may be said to be a matter of choice so far as the plaintiff was concerned as to when he commenced his action. But that once the proceeding had commenced it was essentially the vagaries of the court process and its admitted delays (which all courts regret) which were capable of denying the plaintiff and his personal representative the right to benefit from the claim for exemplary damages. But the plaintiff (and now the respondent) sought only to date the judgment back to the end of the trial, upon the basis of the authorities to which I have referred and upon the assumption that it was the fault of the Court in some way that judgment was reserved and that the plaintiff died during the reservation of its decision. It may have been a longer wait than usual but not, I suggest, in the context of the issues and evidence raised at the trial and indeed the plaintiff could have counted himself very lucky if a judgment of that care and complexity had been delivered by the time of his death. It was really just as much the fault of the system which delayed the trial in the first place, albeit that in the circumstances that was not unusually long. The Chancery practice, however, which the respondent says should survive to the present time was one concerned only with giving effect to a retrospective judgment antedated to the last day of trial, for reasons already examined. Unexplained, there would seem little reason to choose that particular period, convenient though it might be in some cases. The truth of the matter, as I have tried to explain, is that the practice of the Court of Chancery, as had been the practice of the courts at common law, was primarily directed to overcoming the inconveniences of abatement and the rules which were first substituted to overcome abatement, albeit that they were framed in terms of fairness to litigants. The qualification as to lack of prejudice to another party nevertheless suggests that the courts were largely concerned with matters of procedure in those decisions, not with substantive rights.

[171]

Again, in claims for interest under ss.58 to 60 of the Act, the principles so far stated with respect to interest under similar provisions has been generally recognised as requiring no more than compensation for being kept out of the moneys claimed but, so far as Victoria is concerned, the High Court has at least recognised that different considerations may well apply in this State because of the specific provisions contained in the Penalty Act: see Grincelis v. House[237]. Although I do not have sufficient knowledge to speak with certainty as to every other state and territory provision, it would seem that over the years since 1983 the Victorian rate so prescribed has been higher than that applicable in other states and territories and reflects a policy that interest otherwise payable pursuant to statutory provisions, whether under the Act or elsewhere, should, where appropriate, do more than merely place the plaintiff in a position formerly held before the relevant claim was made. Again, speaking in the broadest of terms, the prescribed rate has usually been well in advance of what might be earned by its investment on the money market on a conservative basis, whether at short term or long term rates, and, more often than not, is in excess of what might be expected to be obtained by way of return on other conventional investments. On the other hand, it has usually been some points below the current mortgage and overdraft rates. The Penalty Act's object, as I perceive it, has been in part to encourage the early settlement of litigation (cf. Grincelis at 329), but it may be seen to have the broader purpose of ensuring that recalcitrant defendants, owing money or otherwise subject to an award of damages, do not withhold payments properly sought by plaintiffs upon the selfish basis that in the meantime they may without risk invest moneys so owed in a manner which will given them not merely sufficient to repay successful plaintiffs with interest under the Act but with an element of profit which might fairly be perceived as wrongfully obtained. This has ordinarily given Victorian courts a degree of flexibility in relation to the payment of interest which may not exist in other jurisdictions where the relevant rates are only broadly sufficient to recompense plaintiffs for being kept out of their money while their actions are fought or delayed, as frequently used to occur.

[173]

Superficially, if a form of quasi-investment resulting from the plaintiff being kept out of its money is notionally effected by reason of an order of interest on the two invested sums, it might be thought unfair to impose interest on the assumed product of the investments agreed to be carried out by the appellant as a stockbroker. But can it be said to be unfair to require some interest to be paid on damages which reflect that the plaintiff was deprived of the benefit of the use of the money in the past which was not applied by the appellant in conformity with its agreement or representations, by reason of its negligent misstatements, let alone its misleading or deceptive conduct? The damages awarded for losses of opportunities, as found by the learned judge and not presently challenged, ought likewise to have been paid to the plaintiff at some time in the past. As I have said, I see no reason to deny the plaintiff its interest on the primary sums, for that interest awarded should reflect more than the mere potential for reinvestment, especially having regard to the nature of the legislation in this State as reflected in the Penalty Act. Again, having regard to the relevant purposes of the legislation, both in the Act and in the Penalty Act, there should prima facie be a right to interest on damages awarded for the various losses of opportunities, for certainly that has not been received, in that it has not been paid over or accounted for in favour of the plaintiff at an appropriate time. Of course the sums were to be invested and further reinvested and the benefits by way of losses of profits reflected in effect a compounding of each investment from year to year, with no sum being subtracted or returned to the plaintiff, at least for the first period of investment. As I understand it, the damages so awarded reflected what may have been earned according to the promised or agreed mode of investment in each case. If that be so, then there is a tenable argument to the effect that the losses compensated were not losses which existed from the first moment of breach, or from the moment the action was begun. It is not dissimilar to an award for past economic loss in conventional personal injuries cases, where it is understood in practice that the various sums by way of lost wages (in the ordinary case) would have been received only from week to week, fortnight to fortnight, month to month, so that wages lost and payable up to the time of trial are ordinarily perceived as being paid as and when they would ordinarily have been payable, in other words, some payable within weeks or months of the original accident and others within weeks or months of the trial. In practice, as I understand it, a broad-brush calculation is made by halving the relevant interest at rates prescribed under the Penalty Act[238] or by using a conventional percentage which in recent years has been four per centum.[239]

At a glance

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Judgment (344 paragraphs)

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Legislation Cited (2)

Cases Cited (1)