Hartley Poynton Ltd v Ali [2005] VSCA 53

2. This appeal by the defendant from a judgment of Smith, J.[1], whereby his Honour ruled in favour of the executor of the deceased plaintiff Rahmat Ali with respect to the antedating of and the interest payable on a judgment for damages (including exemplary damages) awarded by his Honour in an action for negligent misrepresentation and related claims arising out of the deceased plaintiff's share trading through the appellant, raises two issues. The second of the issues relating to the calculation of interest is primarily concerned with an analysis of his Honour's award of damages. The first issue, however, though on the surface technical, raises questions of some importance both as to the effect of death on parties' rights and, more importantly, as to the power of the Court to antedate its judgments. These questions arise in the context of a proceeding where the plaintiff died between the reservation of judgment and its delivery and where, as for the last 60 years, the restrictions on the right of the personal representatives to sue and continue proceedings in the name of deceased persons have been modified by what is now s.29 of the Administration and Probate Act 1958 which, while removing the bar on such proceedings, qualifies (inter alia) the resultant rights of estates of deceased persons by providing that the damages recoverable "shall not include any exemplary damages".

5. For present purposes it is unnecessary to canvas the factual circumstances in great detail. It seems that Mr Rahmat Ali was a client of the appellant stockbroking firm for some time. In circumstances described in detail by Smith, J. in his principal judgment[2], the plaintiff invested a little over $100,000 with the appellant towards the end of 1997 for trading in securities listed on the Australian Stock Exchange and a further $195,000 a few weeks later to buy certain Telstra instalment receipts. Over the next 15 months it appears that these moneys were "invested" in various ways and the funds were used to buy and sell securities in a vigorously speculative manner. Regrettably the speculation was an overwhelming failure and by February 1999 the whole of the funds invested by the plaintiff had been dissipated in one way or another. Shortly thereafter in April 1999 Rahmat Ali commenced proceedings against the defendant appellant. The plaintiff alleged, among other matters, a number of negligent misrepresentations, false and misleading conduct, breach of contract constituted by negligent trading on his behalf and breach of fiduciary duty. At the end of the day most of the principal claims were made out, but a very significant proportion of his Honour's judgment was given over to the calculation of damages, which in the circumstances involved a very complex examination of the facts. In a judgment delivered on 16 April 2002 the judge gave judgment for the plaintiff for $846,819 compensatory damages and $260,000 exemplary damages, against which was set-off some $67,017 by way of an undisputed counterclaim for broking fees. Interest and other matters were reserved for further consideration.

8. It was an exceptionally complicated case, but between the time that the judge reserved his decision on 16 October 2001 to the time he delivered his 303 page judgment just six months later the plaintiff Mr Rahmat Ali died. This immediately raised a procedural issue of some complexity as to what should be done as to the proper constitution of the action and what form the judgment should now take. There was little dispute that the present respondent as executor and trustee of his father's estate should be substituted as plaintiff, nor was there any dispute that, if judgment was to be entered in the conventional way as at 16 April 2002 the provisions of s.29(2)(a) of the Administration and Probate Act denied the substituted plaintiff any entitlement to that amount of the judgment represented by exemplary damages. The assumption made by both parties for the purpose of this appeal was that the exemplary damages were awarded for a tort and that liability after death was controlled by s.29 of that Act.

11. Consequently the new plaintiff sought an order nunc pro tunc effectively antedating the judgment to the last day of the hearing, namely 16 October 2001. It was said that there was inherent power at common law and explicit power in the rules to make such an order which, so it was contended, should speak as at 16 October 2001 and thus at a time before Mr Rahmat Ali's death, at which time he was entitled to recover the exemplary damages, so that judgment at that date should be for the full sum of damages without any reduction. The judge reserved on that issue, but later held that not only did he have power to make such an order but that he would do so and thereby directed that the judgment "bear date and take effect from 16 October 2001". His Honour also resolved in favour of the respondent plaintiff the dispute as to interest on damages, to which I shall turn later in this judgment, and further ordered in the plaintiff's favour damages in the nature of interest of $234,706.

14. It is from these orders that the appellant has appealed to this Court. Apart from the complaint as to the calculation of interest, the appellant asserts that the judge erred in holding that he could antedate the judgment so as to overcome the operation of s.29 of the Administration and Probate Act and that he erred in holding that thereby the substituted plaintiff, the executor, should thereby be entitled to recover the exemplary damages.

19. The appeal has been argued upon the assumption that s.29 of the Administration and Probate Act applies to the cause of action upon which the plaintiff was successful and in respect of which the sum of $260,000 was awarded by way of exemplary damages. At the date of death s.29 relevantly read:

"(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]

23. Although seen to be fundamental to the appellant's argument, it is by no means clear, as the respondent contends, that the section, and in particular its exception relating to exemplary damages, ought to have an effect on the outcome of this appeal. Its significance lay, so it was said, only in the fact that, if the learned judge had not made the orders he did after the death of Rahmat Ali, the appellant could have raised the question of his death, amended its pleadings accordingly and contended that further evidence might properly have been called as to the consequences of his death having regard to the restrictions contained in s.29. On the other hand the judge cut through that difficulty, as it were, by determining that he had power to antedate the judgment, by an order commonly described as being made nunc pro tunc, so as to have the consequence that the judgment spoke six months earlier, as at the final day of the trial and some months before Mr Rahmat Ali died. The respondent vigorously supported this as the proper course to take. Of course, thereafter the action had to be reconstituted in the sense that for practical purposes the present respondent as executor had to be substituted as plaintiff: indeed that course had to be taken so that he might persuade the judge to make the orders that he did. The principal relevant rules prescribing what ought to be done now appear in rules 9.09 and 9.10 of the General Civil Procedure Rules 1996, although, where a deceased person has no personal representative, the Court may proceed in the absence of any person representing the estate, under r.16.03.

26. It will be seen that paragraph (1) of r.9.09 is expressed in the following terms: "Where a party to a proceeding dies, but the cause of action survives. ... the proceeding shall not abate by reason of the death ..., but may be carried on in accordance with paragraph (2)", which makes provision for the obtaining of orders adding or substituting a party in place of the deceased person. The words emphasised have appeared in the rules, both here and in England, since the Judicature Acts in the late nineteenth century[4], but they refer to the concept of "abatement", which over the centuries was productive of inordinate procedural complication, whether actions were brought at common law or in equity, and in relation to the making of orders nunc pro tunc after death that had a significance which for the most part has been implicit rather than explicit. For example, the two leading cases on both the common law and equity side, both cited by the learned judge, Cumber v. Wane[5] and Turner v. London and South-Western Railway Co.[6] were both decided before the plea in abatement and the related principles of revivor and supplement (on the equity side) had been abolished in their respective jurisdictions[7] and it is the continued application of those cases, and the circumstances in which they should be applied, which is critical to this appeal. I use the word "abolished" because, although the right to make a plea in abatement was abolished by Order XXI r.20 of the R.S.C. (thought unnecessary to repeat in the G.C.P.R.), nevertheless, as can be seen from the terms of r.9.09(1) (and its predecessor O.XVII r.1 of the R.S.C.), that was and is a qualified abolition, subject to the cause of action "surviving". As it is accepted that the relevant causes of action here survived, it is not necessary to examine further the significance of that qualification.

29. What complicates the matter in the present case is the fact that the plaintiff's claim in negligence was not merely one which would have given rise to a plea in abatement if the plaintiff were dead or died during the course of the proceedings but was also one which in this State until 1942 when the Survival of Actions Act 1942 first introduced s.29 into the Victorian Administration and Probate Act (and in England until 1934) could not have been brought in any court whether exercising common law or equitable jurisdiction. That might be thought to have given rise in addition to a claim on the part of a defendant sued in such circumstances that the death of the plaintiff or proposed plaintiff prevented any action being brought at all, which ordinarily up to the abolition of pleas in abatement, should have given rise to a plea in bar, but at least as a plea by way of demurrer or otherwise, that the plaintiff had no cause of action, as it had died with him: actio personalis moritur cum persona. At least, from my reading of the authorities, that was not the way in which death of a plaintiff in such circumstances was treated by the common law, but the effect of a plea in abatement by reason of death led frequently to a similar unfortunate conclusion, namely, that nobody could sue or continue the proceeding (or be sued) in the place of the deceased person. Again the reasons for this have to be examined, as does the distinction between abatement and non-survival of causes of action.

Significance of former right to make plea in abatement

33. The nature of a plea in abatement must first be examined for the purpose of understanding the relevant authorities as to the effect of death on a cause of action and, in particular, those cases which are said to stand for the proposition that judgment may be effectively backdated to a time before death, in particular to the time evidence or argument closed, in order to preserve the cause of action for the benefit of the executor or other personal representative or the heir of a person dying during the course of proceedings but before the giving of judgment. The distinction was drawn in these terms between pleas in abatement and pleas in bar by Joseph Chitty in his Treatise on Pleading and Parties to Actions (5th ed., 1831) at p.481:

"Whenever the subject matter of the plea or defence is, that the plaintiff cannot maintain any action at any time in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show the plaintiff is forever concluded, should in general be pleaded in abatement."

The plea in abatement was intended to enable a defendant to challenge the action on grounds that the parties were improperly named or unable in law to sue or to be sued, as well as permitting other challenges to the form of the writ or declaration, such as were described in detail in the following pages of Chitty's work. In broad terms, however, successfully taking a plea in abatement did not in itself bring the plaintiff's right to sue or the defendant's liability to an end; it merely enabled the party to have the existing proceeding terminated as improperly constituted. At common law a party defeated in that way was not precluded from bringing a second action for the same cause of action by a writ which was properly constituted.[8]

38. Likewise before the Judicature Acts a not dissimilar distinction was drawn between pleas in abatement and pleas in bar in courts of chancery, although the terminology used and the consequences were somewhat different. In general terms, in equity, the plea in abatement brought the existing proceeding to a halt. In order that the plaintiff might continue the suit complex proceedings by way of revivor and supplement had to be taken which, if ultimately successful, resulted in an order to revive the suit or carry on the proceedings. Whole textbooks were devoted to this subject: see White's Treatise on Proceedings in Equity by Way of Supplement and Revivor (1843) and Pemberton on Revivor and Supplement (1867). The chancery practice and law in relation to pleas in abatement and revivor may be examined in early editions of Daniell: The Practice of the High Court of Chancery.[9]

41. The differences between abatement in courts of common law and chancery were sought to be summarised in Daniell's Chancery Practice (8th ed., 1914)[10]:

"The plea in abatement known to the Common Law Courts lay where, by reason of the non-joinder of parties, or of some personal disability of suing or being sued, the plaintiff was alleged to be precluded from recovering upon the writ and declaration as at the time framed. Under the practice of the Court of Chancery a defendant could raise similar objections to the suit by what was also termed a plea in abatement. There was, however, a practical distinction between the common law and the chancery plea; the former was what was termed a dilatory plea which pointed out some defect which in most cases, such as the non-joinder of parties, was under the circumstances either excusable or remediable by amendment of the writ and declaration; but the so-called plea in abatement in chancery appears to have had the same practical consequences as a plea in bar." (Footnotes omitted.)

However, although usefully stated, what was there said, so far as death of a party was concerned, tended to overstate the difficulties in chancery and understate the consequences at common law. Undoubtedly, before the Chancery Procedure Act 1852 (U.K.) "an abatement cannot be remedied by amendment" in the Court of Chancery, but it seems that personal representatives appointed since the institution of a suit could be added by amendment, at least so the editors of the 5th edition (1871) of Daniell's Chancery Practice thought at that time. Moreover, the procedure by way of revivor and supplement, again described in the 5th edition of Daniell at pp.1377ff., shows that the procedure, though complex, in some cases permitted orders to be made as of course.[11]

46. On the other hand at common law, though the plea was in strictness dilatory, the original action was brought to an end at common law where a sole plaintiff or defendant died. The basic rule was stated (as was frequently cited) by Serjeant Williams in his notes to Underhill v. Devereux (1681) in Saunders' Reports[12]:

"At common law the death of the plaintiff or defendant, at any time before final judgment, would have abated the suit."

So in the 8th edition (1847) of Chitty's Archbold's Practice it was stated[13]:

"If a sole plaintiff or defendant die before verdict or judgment by default, the action abates, and the plaintiff or his executor is obliged to commence a new action against the defendant or his executor, provided the cause of action survive to or against the executor.[14] ... Where a sole plaintiff dies pending the action, it seems the proper course for the defendant to take, if the action be continued, is by plea in abatement or writ of error, according to the stage of the cause." [15]

To add to the complexities, some of these rules as to abatement were ameliorated over the centuries. Thus, according to Chitty's Archbold[16], the effect of s.1 of the statute 17 Car. II c. 8 (U.K.) passed in 1666 was as follows:

"If a sole plaintiff or defendant die after verdict, or even after the assizes begin, or after the first day of the sittings, though before the trial, and before final judgment, the action [was] not thereby abated; but final judgment [might] be signed within two terms, as if the party were alive, and then revived by scire facias by or against the executor etc.".

Nevertheless, where the plaintiff died after verdict, the Court might, so it appears, grant a new trial on the application of the defendant and "would in such case impose terms on him to prevent his taking advantage of the plaintiff's death". A further modest amelioration of the common law was effected in 1697 by 8 & 9 Wm. 3 c.11 s.6 in cases where death of a party occurred between interlocutory and final judgment.[17] By that act such an action "shall not abate by reason thereof", as long as the cause of action survived, and the judgment might be revived by scire facias and thereafter proceed to final judgment.

55. Thereafter general amendments to the practice were made by the Common Law Procedure Act 1852 which had the consequence at common law that in general terms death did not cause an action to abate (see s.135), though again the remedy was by no means simple. By s.137 of that Act the personal representative of the deceased plaintiff was required, by leave of the Court, to "enter a suggestion[18] of the death and that he is such legal representative, and the action shall thereupon proceed ...". But then the truth of the suggestion had to be tried generally at the trial and judgment might follow as if the personal representative had been the plaintiff. However according to Chitty's Archbold (12th ed. 1866)[19] the right of a personal representative to enter a suggestion and continue an action was only permitted where the cause of action would have survived in favour of the personal representative.[20]

58. 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.

61. Moreover, in most (if not all) cases, where after a party died applications were made for orders nunc pro tunc and whereby judgments or orders were antedated, at first to the first day or to the essoign day of an earlier term and then later to the last hearing day of the proceeding before death, there was simply no discussion of the issue whether the cause of action had passed to an executor or, alternatively, whether it could be enforced against one. So nothing was said of this issue in Cumber v. Wane, nor was it discussed in what has been treated as the leading case of Turner v. London and South-Western Railway Co. Indeed it may be noted in the latter case, which was a suit in equity, that Hall, V.-C. acted in circumstances where the plaintiff's death had come to his notice, but where there seems to have been little argument about the issue.[21] The reason for this, I would suggest, was that, as his Honour said, no detriment was incurred by either party by the dating back of the judgment.[22] It simply enabled the suit to be brought to an end without the necessity of going through the Chancery procedures which would otherwise have been required at that time to reconstitute or revive the action. (Those procedures and the Chancery practice generally at that time will be looked at below, and it is sufficient to say that they had been somewhat modified[23] from the rules which earlier applied in the Court of Chancery, although those changes did not replicate the reforms made in the common law courts by the Common Law Procedure Act 1852 (U.K.)[24]

67. The second element in this enquiry, as to the right of personal representatives to obtain a judgment or order nunc pro tunc in favour of the estate whom they represent where the action was originally commenced in the name of a deceased person, requires a brief description of the circumstances in which, after the death of the person in whom the right originally vested, the substantive right survived death and was capable of being enforced thereafter by that party's personal representatives.[25] For present purposes it is sufficient to enquire as to the state of the law, and changes made to it, in the period up to the passing of "survival of actions" legislation (in 1934 in England and 1942 in Victoria). For practical purposes I shall confine that enquiry to the period up to the passing of the Judicature Act rules in England and Victoria (for practical purposes 1883) when the current general provisions as to antedating judgments and orders were introduced. See e.g. the original order XLI r.3, now represented in this State by r.59.02.[26] However it should be noted that somewhat more flexible powers as to entry of judgment had already been given by ss.120 and 138 to 142 of the Common Law Procedure Act 1852 and, especially, rr.56 and 57 of the Hilary Term Rules 1853.[27]

72. Perhaps the obsession during the last century, both of certain lawyers and of those who would appear to take an interest in the law, with claims for personal injuries has tended to push to one side the fact that there has always been a vast range of causes of action, in the common law sense, and rights to bring proceedings in the more general sense, none of which require proof of either an injury or of damage arising therefrom. Commentary upon, and criticism of, the actio personalis rule, as I will proceed to call it, has concentrated greatly on the practical deficiencies of the law in the personal injuries field and it would be foolish to deny that the rule produced many injustices, which were rightly corrected by legislation, and about which Knox, C.J., Higgins and Starke, JJ. said in Ryan v. Davies Bros Ltd.[28]: "The maxim is not, as has been said, a very rational part of the law ...". Moreover the amending legislation has been seen, at least in some of its manifestations, to have had its own deficiencies which Sir Owen Dixon, for one, pointed out in his terse commentary on it published in the first volume of the Queensland University Law Journal.[29] As he said[30], "few friends could be found for the rule ... but ... there has grown almost as much dissatisfaction with the reform ..."

75. The actio personalis rule, however, was not otherwise seen as having a broad scope beyond the range of injuries inflicted by tortious conduct. It seems to have had no direct application to claims in equity nor, so far as I can gather, to other common law claims, especially those derived from contracts, albeit that up to the early part of the seventeenth century there was considerable dispute as to that question, largely arising out of the derivation and development of the cause of action in assumpsit. There seems, however, to have been little dispute about the enforceability of claims on specialties and (generally) in covenant.[31] Actions in debt were within the "rule", largely because trial had been by wager of law, but that restriction did not affect the executor's right to sue.[32]

78. Indeed, there is much doubt as to the origins of the actio personalis maxim, not because the rules ultimately were uncertain as to whether particular claims did or did not pass to the executor or other personal representative (or were unenforceable against them) after death, but because the express terms of the maxim seem, so far as one is able to detect, not to have been used before the latter part of the fifteenth century. At one time it was suggested that Coke devised the maxim in the early seventeenth century but later research has showed that it had been used in the year books as early as 1479.[33] Reference to, and reliance upon, it gradually became more frequent in the next century or so, but it is here unnecessary to examine the dispute, if it can now so be called, between Goudy, Holdsworth & Winfield (see in the next paragraph) as to its origins, but see Simpson: A History of the Common Law of Contract (1975) pp.562-565 for a recent summary. The expression "actio personalis" has itself caused difficulties of definition. The assumption in recent years has been that, notwithstanding its language, for practical and present purposes it has largely been confined to actions in tort while, on the other hand, it has not been treated as synonymous with actions in personam. The time when the maxim first came to be used suggests that assumptions even then were being made as to the limits of its use, but it is equally clear that it did not at first necessarily exclude actions in contract, for there were heated debates in the courts, and in particular between the Courts of King's Bench and of Common Pleas, until the opinions expressed (in the Court of King's Bench) in Pinchon's Case[34] that an executor might sue in assumpsit for a debt owed to the deceased spread to the other courts, who appeared to accept that likewise an executor could be sued for a debt made by a deceased person: see Fawcet v. Charter[35].

81. For this purpose one must not forget the distinction between the effect of death of a party on a specific proceeding and its effect on the right of action itself, in terms of transmission of interest or burden. Even in tort, where the operation of the rule was later seen so harsh as to require reform, there was by no means uniformity. Apart from the chapter by Professor Simpson in his History of the Common Law of Contract, just referred to[36], the question was examined in detail by Professor Goudy in "Two Ancient Brocards" in Essays in Legal History (1913) (ed. Vinogradoff), by Holdsworth in his History of English Law Vol. III 576ff. and by Winfield in "Death as Affecting Liability in Tort" in 39 Columbia Law Review 239 (1929). The latter article most comprehensively deals with questions of liability in tort, from which it is clear that, although the rule must be treated as having its basis in common law[37], trespass was seen as sufficiently affected by the rule as to require remedial legislation at a very early stage of the common law: see, starting with two doubtful examples in the thirteenth century, 52 Hen. III, c.28; and 20 Edw. I. c.2, and then the string of legislation in the fourteenth century (in more general terms relating to various trespasses): 4 Edw. III c.7; 25 Edw. III st.5 c.5; 31 Edw. III st.1 c.11.[38] Those particular provisions remained part of the law of England and Victoria until the survival of actions legislation, as can be seen from their re-enactment as s.26 of the Imperial Acts Application Act 1922 of this State, which was incorporated into s.25 of the Administration and Probate Act 1928.[39]

84. In general terms these statutes had done little to alleviate the plight of those who wished to sue for a tort committed during the deceased's lifetime, although there were a few torts (in addition to those affected by legislation) which remained outside what was understood to be the actio personalis rule, as it was developed. Moreover, what was truly "personal" and what was not remained uncertain. By 1583 the courts were able to hold that the representatives of a deceased person were liable for a wrong done by the deceased insofar as that wrong had produced actual benefit or enrichment to his estate: see Sherrington's Case[40], but even three centuries earlier, in Bracton's time, it seems that an obligation to restore property did not die with the person, so that executors were almost invariably held liable in detinue.[41]

87. It will be seen therefore that the rule was, or certainly became, one covered with exceptions[42], albeit that at its heart real injustice might be and certainly was in the future likely to be caused. It was the development of the torts of trespass and case into what is now known as that of negligence which resulted in the greatest injustices, for the rule was held firmly to apply to actions for damages in those kinds of cases. Indeed, Winfield, after referring to one of the few later significant remedial statutes (3 & 4 Will IV c.42) passed in 1833, thought fit to observe that, by enabling personal representatives to sue for damage to the real estate of a deceased and by making personal representatives liable for injuries committed by a deceased person to real and personal property, "the Act filled up most of the gaps in this branch of the law".[43] Moreover, whatever may have been said in recent years as to the scope of the rule, and there seems to have been a real dispute as to the extent to which it applied to statutory rights of action, there appears little basis for believing that the rule extended much beyond the common actions for damages in tort arising out of harm caused to an individual. In broad terms, therefore, one might say that the word "personalis" should be translated as "personal", but only in the sense that it relates to harm to the person, in contrast to claims which involved assertion of claims of right whether related to real or personal property, as was reflected in the exception relating to claims in detinue, at least from the time of the amendments made in 1833 by the legislation just referred to.

Common law practice as to entry of judgments nunc pro tunc

91. For present purposes it is not necessary to go further than to give this broad view of the operation of the actio personalis rule, for the enquiry I am embarking upon, convoluted though it may seem, is to ascertain the circumstances in which courts may have seen fit to give judgment or make orders nunc pro tunc, by antedating the effect of those judgments and orders. The issue here is whether the rule has been held to be capable of being bypassed, as it were, by the making of a retrospective order, other than by one which was directly authorised or required by statutory provisions such as that contained in the statute of Charles II. Furthermore, it seems that the actio personalis rule had no operation in relation to equitable claims, save for those which were directly dependent upon proof of a right of action at common law.[44] It is, however, necessary to see how the various rules of practice as to antedating judgments were applied in the period, for practical purposes, up to the decision in Turner in 1874. In particular, as previously noted, it is important to identify those circumstances in which orders were made of a retrospective kind, nunc pro tunc, in cases where the procedural rules, both on the common law and equity sides, would have brought the action to an end for all practical purposes unless some such order nunc pro tunc was made.

94. But there is another matter which first ought to be examined before looking at those authorities. In the early textbooks the subject of judgments nunc pro tunc appears invariably, in those that I have examined, and in particular in Chitty's Archbold, only[45] in sections which deal with death after verdict (or interlocutory order) and before entry of final judgment. This may seem a curious arrangement, but since the time of Charles II all parties with the benefit of a verdict were entitled to delay entry of judgment at least for a period up to two terms after the verdict.[46]

The general proposition as to entry nunc pro tunc may be taken from the 12th ed. of Chitty's Archbold[47]

where it was said, (significantly) under the heading: "Death between Verdict and Judgment":

"The Court will, in general, permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by the act of the Court. Therefore, if a party dies after a special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for argument, or whilst the Court are considering of their judgment, the Court will allow judgment to be entered up after the death nunc pro tunc in order that a party may not be prejudiced by a delay arising from the act of the Court."[48] (Emphases added except for "nunc pro tunc".)

The proposition was then qualified by a statement that, if the judgment was not entered up "by reason of the laches of the plaintiff, or of those representing him, or by reason of a proceeding in the common course of law, as by proceeding in error or the like", then the Court would not allow the judgment to be so entered up.[49] In fact it seems that the Court would not grant such leave in any case "except where the party entitled to sign judgment has been prevented from so doing by reason of an unavoidable delay occasioned by an act of the court". At the same time the editor reminds[50] one that "judgment must be entered up of the day of the month and year when signed, and shall not have relation to any other date, but it shall be competent for the court or judge to order a judgment to be entered nunc pro tunc ...". This aspect of the proposition was there (and elsewhere) said not to depend upon statute, "it is a power at common law, and by the ancient practice of the court, to prevent an unjust prejudice to the suitor by the delay unavoidably arising from the act of the court", citing Evans v. Rees, per Lord Denman, C.J. (speaking for the Court of Queen's Bench)[51].

103. On the other hand in the section of Chitty's Archbold[52] describing the consequences of "Death before Verdict or Judgment by Default", there is no suggestion that judgment could in some such circumstances be obtained or entered nunc pro tunc, for it is there reiterated "at common law ... the suit abated", subject to various statutory powers sometimes permitting reconstitution. This is likewise subject to the qualification that the expression "before the verdict" was generally interpreted to treat death from the beginning of the assizes as "after" verdict, on the then accepted fiction that the sittings were considered "as one day in law".[53]

106. What may be seen from this and every other statement as to the court's powers that I have examined is that the rules of practice as so stated were directed entirely to the question of entry of judgment, not to the giving of judgment (otherwise than by entry), nor to the pronouncement of a judgment in accordance with verdict or otherwise. As will be seen shortly (see paras.[32]ff.), pronouncement of judgment did not follow as of course so that entry was critical to final relief. It seems that the rules were devised, at least in the first place, to ensure that judgments which ordinarily had to be entered up some time after verdict (or other order), and thus faced the potential risk of abatement by reason of the death of a party, could be antedated to the effective date on which the matter was determined in court, ordinarily the day of verdict, by entry or signing of the judgment nunc pro tunc. The reasoning in such circumstances was entirely logical. It required no hypothetical antedating, but merely the practical effectuation of what had already been decided, ordinarily at a time when the party was capable and suffering from no relevant disability. What is remarkable is that the same concept is still preserved in the current General Civil Procedure Rules, where by r.49.04 it is laid down: "Where a party to a proceeding dies after the verdict or finding on the questions of fact, the Court may give judgment notwithstanding the death." That provision can be traced to what formerly appeared in the latter part of Order XVII r.1, introduced (doubtless as reflecting the former common law practice) as part of the original Judicature Act rules in both England and Victoria.

109. It may therefore be thought, subject to the authorities on the subject, that the common law rule of practice was not intended to deem a result to have occurred which could not lawfully have been so decided at the time when the verdict was given or some other determinative order was pronounced. In other words, it was not intended, at least at first, to permit a court to say, whenever a particular party no longer had the relevant legal capacity because of death and that party's claim ought otherwise to have been treated as abated, that it would deem the order or judgment to have been made or given at some time in the past, when the party was alive and the claim enforceable. It must be conceded, of course, that Turner's Case, in a suit in equity, deemed the decision to have been given on the merits earlier than the pronouncement of judgment, but why and in what circumstances will have to be examined.

112. It is now necessary to see how and in what circumstances orders directing entry of judgment were made nunc pro tunc. As previously noticed, the emphasis, certainly in the earlier cases, was on the concept of entry rather than the giving of judgment or the making of orders, although some confusion may be engendered by the fact that virtually all common law decisions arose out of verdicts of juries rather than out of findings by judges. Unfortunately it is not always possible to determine in what circumstances the orders were made, nor precisely what was the form of the order, but, as will be seen, most, if not all, were expressed in terms of permitting the entry (or the signing) of judgment.

115. If one may take first Cumber v. Wane decided in 1718, then it was certainly a case where the Court ordered that the plaintiff "might enter the judgment nunc pro tunc".[54] The need for an order arose out of the death of the defendant in error between the time that the Court sitting in banc reserved its decision and the time at which it was announced. From the report it appears that there had already been judgment for the plaintiff on a demurrer to which objection was made in error. So, although technically there had not been a verdict of a jury, the proceeding, at least in modern terms, had already resulted in a decision in favour of the plaintiff and it was the defendant who was seeking to review it. The decision of the Court was to affirm the decision already given and so the question was simply whether the plaintiff might enter that judgment nunc pro tunc which had the effect of affirming the original decision. The claim was in indebitatus assumpsit, so that by then ordinarily no question could have arisen as to the plaintiff's right to enforce its claim against the personal representatives of the defendant after the defendant had died. The issue was thus entirely procedural and it seems that there was no argument, certainly no argument is reported, although a number of decisions appear as part of a footnote to the judgment of Pratt, L.C.J. in his conclusion on this issue[55], but which do not appear inconsistent with this analysis.

118. 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.

121. A detailed examination of many more of these earlier cases is unnecessary, at least those in the common law courts. As already noted, most, if not all, of the statements of the practice or rule, explicitly refer to the entry of judgment, not the giving (or oral pronouncement) of judgment. The reason is not hard to find, though it may surprise modern lawyers. The process of obtaining judgment for a very long time in the common law courts did not require, nor ordinarily even include, the pronouncing of judgment in open court. As Serjeant Stephen in 1824 explained it in his work, Principles of Pleading (1st ed)[61]:

"Judgments...were formerly pronounced in open court: and are still always supposed to be so. But, by a relaxation of practice, there is now, in general, except in the case of an issue in law, no actual delivery of judgment, either in court or elsewhere."

125. This curious outcome arose from the fact that the signing, entry and enrolment of judgments at this time flowed from the verdict or from some other step or failure to act (such as default in delivering pleadings or the like) or order, conclusive in effect but interlocutory in form[62]

, and was not dependent on a judge formally pronouncing the outcome of litigation in court, but on some court official signing an appropriate document recording the verdict. Ordinarily a common law action had to be resolved by jury verdict, unless some interlocutory order or step had previously brought it to an end. The former common law practice[63] was summarised by Jordan C.J. (on behalf of Halse Rogers J., Maxwell J. and himself) in Storer v Smith's Newspapers Ltd[64], which was in effect accepted by Dixon and Williams JJ. in Opie v Opie[65]:

"Under the old practice, at the conclusion of a trial a formal record of the jury's verdict on the issues was prepared which was called the postea[66] ... ; and the method of obtaining judgment[67] was to procure an officer of the Court to stamp the postea. The stamping operated as a signing of judgment, which was inchoate until costs had been taxed, and became final when costs were taxed and inserted ... Formal judgment was then entered on the judgment roll ..."

131. A similar brief summary was given by Lord Esher M.R in Holtby v Hodgson[68], who proceeded to contrast common law judgments with those given in Chancery ("without the verdict of a jury"), and then with those generally given after the Judicature Act, when, as he said, it was desired to make the relevant procedures identical, so that "power is given to the judge at nisi prius to do what he could not have done before, to direct judgment to be entered according to verdict, which is the same thing as giving him power to give or pronounce judgment"[69]. The old procedure is also described in some detail in Tidd's Practice (9th ed) Ch XXXIX ("Of Judgments") and is usefully discussed by Young C.J. in Eq. in Minister for Environment v Carson[70]

134. This practice meant that upon verdict no judgment was pronounced orally and that the effective date of the ultimate judgment was its date of entry (in the sense of signing, which was treated as final[71] judgment), as still applies to the entry of default judgments. The modern rule that judgments speak from the moment they are pronounced had no practical common law equivalent. But the delays inherent in the old system led to cases where a party lost the benefit of a verdict by reason of death and consequent abatement. So practices developed, and eventually statutory and rule changes were made, which preserved the rights of a plaintiff with a successful verdict. Many of the reported cases as to the making of orders nunc pro tunc are merely examples of circumstances in which the courts considered it fair, and occasionally unfair (or in breach of some existing rule of practice), to allow a judgment as entered or signed to operate from the date of verdict or of some interlocutory order entitling the plaintiff or defendant to succeed. In appropriate circumstances the antedating of the entry of judgments merely gave expression to the fact that the plaintiff (or defendant) had already been successful and, to that extent, there was no element of artificiality. But, as Tidd[72] observed, "as the judgment relates to the first day of term, if the party be alive after that day, it may be entered, and costs taxed thereon, after his death". This flowed from the principle[73], if so it can be described, that a "judgment, by general intendment of law, has relation to the first day of the term whereof it is entered ...".

137. Moreover, from the time of Charles II, not only did judgments continue to be dated back to the first day of term when duly entered, but in addition, by 17 Car. II c.8 s.1 , if "judgment be entered within two terms after the verdict", then the death of a party after verdict could "not be alleged for error" and judgment could be entered "as if the party were alive". This antedating (as of course) of the entry of judgments was continued under ss.135-139 of the Common Law Procedure Act[74] modified, at least in effect, by the Hilary Term Rules of 1834[75], applicable to all common law courts, which laid down that "all judgments , whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed; and shall not have relation to any other day: Provided, that it shall be competent[76] for the court, or a judge, to order a judgment to be entered nunc pro tunc". Almost identical rules were passed as part of the Hilary Term Rules of 1853 (r.56) and of the Trinity Term Rules of the same year (r.32). Nevertheless the editor of Williams' Saunders[77] commented both in 1845 and again as late as 1871: "This rule does not appear to have made any alteration to the common law practice", as stated in Williams' notes, largely, one would surmise, because the Common Law Procedure Act had preserved the practice of antedating judgments to the date of verdict.

140. The complexity and inconvenience of these rules are obvious, such that it is not surprising that there are well over 50 cases reported in the English Reports and other nominate reports as to how and in what circumstances the various common law courts saw fit to make orders nunc pro tunc to antedate judgments to an appropriate date and to preserve the benefit of verdicts and other orders for or against parties who had died. It is pointless to canvas them all, but the complexity of

the process can be gauged by what occurred in what was treated as one of the leading cases on the subject, Evans v. Rees[78]. There it appeared that (1) verdict was brought in on 27 March 1839, (2) the defendant died on 3 April 1839, before the Easter term began, (3) the plaintiff moved for a new trial during that term but the motion was refused on the last day of that term, (4) costs were not sought to be taxed until after Trinity term expired on 12 June 1839, so that (5) judgment was not signed until 24 June, being more than two terms after verdict[79]. The Court asserted its power to permit judgment nunc pro tunc pursuant to its inherent powers "to prevent an unjust prejudice"[80], but for present purposes it is significant to note that the order made (on 11 June 1840) was that there be leave to enter judgment "as of 22d May, in Trinity Term, 1839". The effect of that judgment when entered, as Lord Denman C.J. explained[81], would nevertheless be good in favour of the defendant because of the operation of the statute 17 Car II c.8, despite the recent Hilary Term rule, for its proviso permitted the Court still to make an order nunc pro tunc. The obscurity of the outcome (in particular the choice of 22 May), depending on so many factors for the resuscitation of the plaintiff's rights against the deceased defendant, suggests that the general rule of practice and its many variants were devised to cope with a procedural milieu quite different from our own, one beset with technicalities which even modern lawyers would find hard to appreciate.

144. There is thus little purpose in examining further the myriad cases except to add that in Evans v Rees[82] the Court emphasised that the Court's powers did not depend on statute or rule but on the common law "to prevent an unjust prejudice to the suitor by the delay unavoidably arising from the act of Court", unless delay was imputable to the party applying. But the rule's complexities serve to explain why so many cases arose in the period up to the Judicature Acts and are emphasised by the rarity of reported applications of the rule in later common law actions. What is also suggested is that the rule was primarily designed to overcome the technicalities concerning entry of judgment, not to impose an artificial liability after death of a party. That even the common law courts were coming to see the rule's limitations may be gauged by the comment of Pollock, B. In Hemming v. Batchelor[83], when, in speaking of rule 56 of the Hilary Term Rules of 1853 specifically enabling orders nunc pro tunc, he said:

"I refer to this rule for the purpose of drawing attention to the word `competent'. This word is explained by what was the practice before any such rule of court existed. It was then the practice of the courts, if either party died pending the time taken for argument on a motion in arrest of judgment or for a new trial, to enter judgment as of the term in which judgment would otherwise have been given. This judgment nunc pro tunc was a fiction[84] of the which the courts availed themselves for the purpose of aiding the party whom they thought entitled to judgment."

In the same case Kelly, C.B.[85], in refusing a rule that judgment be entered nunc pro tunc, said:

"There are cases, no doubt, where a decision upon the merits has been obtained and where, owing to the death of one of the parties, effect cannot be given to this decision without the intervention of the court."

This seemingly cautious approach after the making of the Hilary Term Rules may suggest that the common law rule of practice was not designed to overcome bars to legal liability but only to overcome formal difficulties arising out of earlier practices giving rise to delays in the entry of judgments. Moreover there seem to have been no common law decisions, at least that I have discovered, which deal with the effect of death before verdict.

Practice in courts of equity as to antedating judgments

152. These technicalities may also prompt an enquiry as to why courts of equity adopted the common law rule with relatively little examination of its purpose. Strangely the Chancery Division seems largely the jurisdiction in which the rule has been applied since the Judicature Acts, at least in the majority of the relatively few reported cases in England[86]. Entry of decrees and orders in Chancery, though complicated by delays in their drawing up, passing and entering, did not affect their operative effect, for they took "effect from the time the judgment of the Court was given, and the decree pronounced...".[87] The power to make orders nunc pro tunc, however, had been exercised frequently for a related but more mundane purpose, namely to allow the enrolling of decrees and orders out of time, indeed as a matter of course, in a jurisdiction where (unlike at common law[88]) there was a time limit prescribed for so doing: Man v Ricketts.[89] Lord Lyndhurst L.C. there[90] made clear that for that purpose abatement by reason of death was of no consequence because, when entered, the decree had relation back to the day of its pronouncement.

155. The Chancery practice as to the consequences of abatement by reason of death before the giving of judgment (or the pronouncing of an order or decree) is presently of greater importance, since I have found no common law decisions dealing with that issue, but that practice was by no means clearly worked out on the basis of principle.[91] In the comparatively few Chancery decisions preceding Turner there is virtually no discussion of principle and the basis for the adoption of the rule in Chancery and its application there is by no means clear. In the first case which seems to have adopted the rule, Davies v. Davies[92], Lord Eldon, L.C. had reserved judgment for some time, but the defendant died in the interval before the matter was set down for judgment. Counsel for the plaintiffs relied on what is called an unreported decision of Jones v. Davis (or Jones v. Le David, see fn.94) in the Court of Exchequer to the effect "that the death of a defendant does not necessarily prevent judgment". All that the report of Davies states about the decision is that: "Judgment was pronounced accordingly by the Lord Chancellor a few days afterwards." In the later case of Belsham v. Percival[93]

the reporter refers to Davies and says the case cited was "probably" Jones v. Le David [94], which he cites as appearing in an early practice book, Fowler: The Practice of the Court of Exchequer Upon Proceedings in Equity [95]. He gave[96] a brief summary of the latter case. The note of Jones v. Le David given by Fowler in his work reads[97]:

"So where a cause was finally heard, and the court took time to consider of their judgment, and in the mean while the party plaintiff died, the court gave judgment nunc pro tunc, and ordered that their decree should have relation to, and be entered upon, the day that the cause was finally heard; and in this decree the plaintiff had relief. Jones v. Le David Hil. T. 1791, in Scac."

Nothing further was said about the case or the practice but it should be noted that it described the Exchequer Court's practice in its equity jurisdiction (abolished in 1841), not that relating to common law proceedings.

162. What Lord Lyndhurst, L.C. had said in Man v. Ricketts may be of general interest in relation to the making of orders nunc pro tunc but his discussion relating to the effect of death of a party, in particular a plaintiff, is of assistance only in a limited way. The defendant's contention was that it was irregular to pass and enter a decree whilst the suit was abated or had become defective by reason of the death of one of the parties. To this Lord Lyndhurst said[98] that, because a decree when drawn, passed and entered bears date on the day on which it was pronounced, it therefore had "relation back to that day", so that it followed that it was "unaffected by any event subsequent to that day". Technically a revivor might have been required but it seems that the Lord Chancellor considered that the practice was not to insist on that course being taken to overcome such an irregularity. None of the other cases discussed in the report took the matter further as they each related to events after judgment had been pronounced.

165. The next reported example of the application of the rule in the Court of Chancery is, so far as I am aware, Belsham v. Percival[99]. Again this was a case where a party had died between the hearing of the suit and the giving of judgment. The only case directly referred to was Davies. Wigram, V.-C. observed "that the death of a defendant between the hearing of the cause and the judgment did not render a revivor necessary. This had frequently happened from the pressure of business in Lord Eldon's time, and the point had been repeatedly decided by his Lordship." Again it is not known what were the other decisions of Lord Eldon to which the Vice Chancellor was referring and the discussion is of little assistance. No further explanation of the practice was given in the briefly reported decision of Lord Cottenham, L.C. in Kirk v. The Bromley Union[100] where it is said the suit had abated by reason of the plaintiff's death, but judgment was nevertheless given.

168. Again later decisions throw no further light on the basis for permitting the antedating of judgments in chancery. In Collinson v. Lister[101], the cause became abated between the hearing and delivery of judgment by Sir John Romilly, M.R. Objection having been made to the drawing up of a decree, the Master of the Rolls said, without further elaboration, that he was satisfied that the matter presented "no difficulty", as the point was "settled by the case of Cumber v. Ware [sic]". Collinson was one of the cases cited in Turner, as was Troup v. Troup[102], where the issue was raised whether a proceeding could be revived after death for the purpose of taxing costs. Here the plaintiff had died after argument was completed but before judgment had been handed down. It was noted that the Lord Chancellor (Lord Chelmsford) had directed that the decree be entered up nunc pro tunc as of the day when argument concluded. The report, however, did not deal with that issue and so it provides little help as to the Lord Chancellor's reasons. Another authority referred to in Daniell[103] was in fact a case of abatement by reason of bankruptcy where the Vice-Chancellor (Sir William Page Wood) simply stated that "one or both of the parties have become bankrupt since the hearing", but said that "upon the authorities the course of the Court" permitted him to deliver judgment in those circumstances: see Boucicault v. Delafield[104]. However no authorities were cited.

171. 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.

174. The few other cases cited seem to speak of a power to antedate a judgment to the time when argument had concluded to overcome abatement and so as to make it unnecessary to take proceedings by way of revivor, in order to bring the proceedings to a conclusion. Apart from the Vice-Chancellor's reference to the common law cases, to which I will return, there seems to have been no discussion of principle in the few cases where an order nunc pro tunc effectively made it speak from a date before judgment was delivered and before the suit had otherwise abated. In the relevant cases, Davies, Belsham, Collinson and Troup, such orders were made but no explanation was given except to the extent that the judges were following some earlier practice either in the common law courts or in the Courts of Chancery and Exchequer (on the equity side). Most weight seems to have been placed on Lord Eldon's practice as exemplified in Davies, but that was said to depend, at least in part, on practice in the Court of Exchequer, but Jones v. Le David was not thought worthy of reporting except to the extent of a note in Palmer's practice work relating to equity proceedings in that Court. In Collinson, however, the Master of the Rolls had preferred to place reliance on the common law practice as derived from Cumber v. Wane. Likewise Hall, V.-C. sought[110] in part to rely on the common law practice which he cited from Chitty's Archbold[111]

, as expressed in the passage, already quoted, which commenced: "The Court will in general permit a judgment to be entered nunc pro tunc, where the signing etc." But that, as I have already endeavoured to show, explicitly relates to entry and signing and does not suggest, nor had it been accepted, that a judgment might be antedated to a time before some decision on the merits, whether by verdict or otherwise, had been obtained at common law.

179. The Vice-Chancellor appreciated the significance between a true antedating and the entry of orders otherwise nunc pro tunc, for the practice as of course in chancery had been to permit entry of judgment or decree back to the time it was pronounced, but that merely reflected the fact that the court had orally pronounced its decree at an earlier time and was seeking only to make the formalities of entry coincide with the date of pronouncement. The common law rule was more elaborate, and had been worked out in far greater detail, because of the various practices there relating to the taking of verdicts and the later obtaining of rules to set them aside (a kind of process by way of review or appeal on questions of law). That might fairly be said likewise to reflect an intent on the part of the common law courts to date judgments back to a time when the effective decision had been given, ordinarily by verdict of a jury, but also, as the practice books noted[112], in other cases back to what otherwise might be described as interlocutory orders of a kind which resolved the case in favour of one side or the other but which were likewise capable of review under the complex procedures of those times.

182. His Honour there saw[113] that dating orders back to the time of pronouncement was not truly antedating although the entry itself was said to have been made nunc pro tunc. Nevertheless he considered that the principal Chancery authorities permitted true antedating and it would seem he was prepared to accept them so long as there was no prejudice or "no benefit or loss to accrue to anybody", whatever that was intended precisely to comprehend. On the other hand, although death also brought about procedural abatement in courts exercising equity jurisdiction, there are no reported cases on that side which dealt with the situation where the cause of action came to an end by reason of death, in other words, the actio personalis rule was neither discussed nor was it implicitly overcome by any of the orders nunc pro tunc there made. Although the antedating of orders in Chancery was artificial to a degree, it ordinarily overcame only the need for procedural rectification of the record by revivor or otherwise, never the cessation of a right or cause of action between hearing and judgment. This, I suggest, came about because the actio personalis rule was of no relevance to the vast majority of claims made in courts of equity, at least in those times.

185. I would therefore conclude that the chancery practice, later adopted fitfully by the courts after the Judicature Act, rested on a common law practice which may be thought to have been artificial to a degree in its effect, but which, so it seems, never sought to produce the clearly artificial conclusion that judgment was treated as having been given before the court or a jury had reached some determination on the merits of a case. The question here is whether this practice, based as I would conclude on an erroneous understanding of the common law practice, should be treated as confined to the procedures prescribed or laid down before the Judicature Acts or whether it has been sufficiently accepted by courts since that time so as to produce a practice, if not a principle, of permitting the antedating of judgments, if the court is seen to have delayed the process, at least by the reservation of judgment, notwithstanding that the parties' substantive rights have altered in the meantime.

Antedating judgments and orders after the Judicature Acts

189. It is necessary to turn to the adaptation of the rules laid down for their varying purposes by the common law courts and the Court of Chancery after the Judicature Acts and their accompanying rules came into effect in 1883 in England and 1884 in Victoria. I should add that the few reported cases up to this time in this state and elsewhere in Australia seem to have followed the former English practices as the relevant rules were almost identical to the time of the Judicature Acts. The first thing to notice about the new Judicature Act rules, the Rules of the Supreme Court (R.S.C.) in England (and the equivalent rules in Victoria), was that they maintained in almost identical terms a power to order the antedating of judgments, in O.XLI r.3 and O.LII r.13 (for chamber orders). The new rule O.XLI r.3 read:

"Where any judgment is pronounced by the Court or a Judge in Court the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court or Judge shall otherwise order, and the judgment shall take effect from that date. Provided that by leave of the Court or a Judge a judgment may be antedated or postdated."

At the same time O.LII r.15 (not included in the 1884 Victorian R.S.C.)[114] made it unnecessary "to obtain an order to enter a judgment or order nunc pro tunc", but provided a simple machinery for cases where those orders had previously been obtained as of course. At the same time the Judicature Act rules, by O.XVII r.1 and O.XXI r.20, confirmed the general abolition of the plea in abatement which, as has been seen, had been partly abolished, though with complicated substituted procedures, by the Common Law Procedure Act 1852 ss.135ff. Most significantly, however, Order XVII r.1 contained the following additional provision[115]:

"and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such cases be entered, notwithstanding the death."

I have been unable to find any authorities which have directly considered the meaning of this provision, doubtless because its meaning is abundantly plain, in that it explicitly makes irrelevant the survival of the cause of action. Its importance, however, is that in substance it picked up the common law practice (but with some qualifications) and the former statutory powers and converted them into a straightforward right to enter judgment, without, so it would seem, any need to antedate it. It is therefore not surprising that the elaborate common law rules were not again called in aid and that there have been no "common law" nunc pro tunc orders, so far as I am aware, since this rule came into effect in England and Victoria. In the Court of Chancery, although the consequences of abatement as understood in that jurisdiction, had been modified by the Chancery Procedure Act 1852 ss.52 and 53, pleas in abatement had not formally been abolished in that jurisdiction until the passing of the Judicature Act.

196. It may be seen that the terms of each of the primary rules relating to judgments (other than O.XVII r.1) were, as is still the case, no longer confined to entry of judgments and the discretion was no longer expressed in Victoria in terms of entry nunc pro tunc. Primarily this change occurred because the rules had to accommodate the chancery practice into the rules, but in theory this expanded the rule so far as common law practice was concerned. Pursuant to O.XL a motion for judgment was the common method of obtaining a judgment from the Court but by 1892 a new rule (O.XXXVI r.39; in Victoria O.XXXVI r.32) was inserted which made it mandatory for the judge "at or after trial, [to] direct judgment to be entered as he shall think right, and no motion for judgment shall be necessary ...". Under the new rule O.XLI r.3, as was held in Holtby[116], it was the pronouncing of judgment which was critical to determining when a judgment was obtained, not its entry, save in cases of default or the like where no hearing was required.

199. If I be correct as to the significance of entry of judgment in the courts of common law and the terms of the new O.XVII r.1, then it is not surprising, given the form of the new rules and their adaptation effectively of both the common law and the chancery practices, that there appear to be, so far as I have been able to discover, no cases reported in England where a party to a "common law" action has obtained the "antedating" of a judgment or the pronouncement of an order nunc pro tunc under the Judicature Act rules. It was the pronouncing of judgment which had become critical and that was now reflected in the date it bore on entry pursuant to O.XLI r.3, but a verdict (or a finding) was still sufficient under O.XVII r.1. There was simply no cause by this time to seek an order antedating the judgment to a time before its actual entry, for the entry itself was now relevant only in cases of verdict before death (though still generally necessary) and the rules effectively deemed the judgment to have been given when it was pronounced, ordinarily at or shortly after the time when verdict was brought in in the Common Law Divisions or judgment was orally pronounced in other cases, and O.XVII r.1 saved those few cases where verdict (or finding) had not been followed up with the pronouncing of judgment after a party had died. The rules of practice I have earlier described never sought to deem a judgment to have been given in effect before the true decision had been reached, subject to the former artificialities of treating the sittings as effectively one day.

202. Moreover, so far as my researches have been able to take me, there have been only a few cases reported, almost all in the Chancery Division, where a party has sought to antedate the judgment to a time before the pronouncing of judgment and to an earlier date before or during the hearing.[117] In both "jurisdictions" the procedure became uniform, but, for present purposes, it had different outcomes. Again assuming my premise is correct, ordinarily there was simply no purpose in making orders which antedated entry of judgment in "common law" actions to the time of verdict or other day, as the day when judgment was pronounced was ordinarily now the effective date. In Chancery problems of late entry of decrees had been overcome easily, not because it was necessary to "antedate" the judgment when entered, but because it had been necessary to get leave out of time to pass, sign and enter the decree as at the earlier date of pronouncement where there had been extensive delay, and this was essentially unchanged.

205. It was only in the Chancery jurisdiction, to my knowledge, that there have been any reported successful applications to antedate the effect of judgments when pronounced by seeking to make the decrees and orders when pronounced speak from an earlier date, usually a date at the end of the trial. This was doubtless to overcome the consequences of abatement and, I would suggest, to overcome the nuisance and expense involved in reconstituting the proceeding which had become abated before judgment had been handed down. In none of the Chancery cases does there seem to have been any issue as to what should follow from the fact that a cause of action in a plaintiff or a liability in a defendant did not pass to the party's personal representatives, for that would have been very rare in equity, arising only in the ancillary jurisdiction of that court, when it sought to enforce common law rights of the kind which would be effected by the actio personalis rule, a rare situation.[118]

208. The question remains whether the courts, when exercising what formerly were described as equitable or common law jurisdictions, sought to give effect to such principles as could be deduced from the earlier cases. The essence of the stated principle, though sometimes unexpressed, was that an order nunc pro tunc might properly be made when the delay during which a party died occurred because of a delay by the Court, primarily when reserving a decision for some extended period after the end of a hearing of the kind tried in the Court of Chancery. Why that particular kind of delay seems to have become the only kind[119] said to justify the antedating of an order and what the relevant consequences were that had to be taken into account were not fully worked out. At least in the leading case of Turner there seemed to be a strong indication also that no party should be seen to be prejudiced, but that is by no means clear. Moreover the principle seemed to incorporate statements from Cumber v. Wane and Chitty's Archbold as to the common law practice and there, with the greatest of respect, the issues being considered were quite different, being those related to delays after verdict or some other decision on the merits in an era when the time of entry fixed the date of judgment in the common law courts. The latter consideration was no longer relevant (nor had it previously been relevant, with great respect, in the Court of Chancery) under the Judicature system in which orders bore the date of pronouncement, except possibly where O.XVII r.1 applied, but that rule seems to have had automatic operation. It may be conceded, however, that a common factor in the two jurisdictions was the need to show that delay was attributable to the Court and not to a party's own inactivity.

English cases since 1884 relating to antedating of judgments

212. As I have said, the cases in which judgments were antedated and were thought worthy of reporting since the passing of the Judicature Act acts have been few and far between, especially those relying on the principles stated in Cumber v. Wane or Turner.

215. Taking the English position first, no case in the Queen's Bench or King's Bench Divisions has seen those principles applied so as to permit the antedating of a judgment, although an order to do so was refused in Borthwick (No. 2), albeit that that case related to the application of the principles on appeals, which had to be and are still different to a degree: cf. Ryan v. Davies Bros Ltd.[120] and Nicol v. Allyacht (No. 2). In Borthwick (No. 2) Collins, M.R. said[121] that "the power to antedate ought, in my opinion, only to be used on good ground shown, ...", whereas Romer, L.J. said[122] that the power of the Court of Appeal to antedate its judgment should "be exercised with caution". The only caveat one should put on that decision is that in one respect, concerning interest on interlocutory judgments for damages, it was overruled by the House of Lords in Thomas v. Bunn[123]. On the other hand it had already been followed by the House of Lords itself in Nitrate Producers Steamship Co. v. Short Brothers[124] and it has been cited with approval twice recently by the High Court in Nicol v. Allyacht (No. 2)[125] and in Official Receiver v. Schultz[126]. The House of Lords in Thomas did not note either the decision in Nitrate Producers or the approval by the High Court of Borthwick in those two High Court cases, although it must be said that the latter were decided almost contemporaneously and raised somewhat different issues. Later again the Court of Appeal sought to limit what had been said in Borthwick (No. 2) and Belgian Grain: see Kuwait Airways Corp. v. Iraqi Airways Co. (No. 2)[127], but just as quickly that case was overruled by the House of Lords in Nykredit Mortgage Bank Plc v. Edward Erdman Ltd.[128].

218. The other cases barely dealt with issues of principle. In Ecroyd v. Coulthard, a decision of North, J. relating to the title of a riverbed, the defendant died after argument concluded and the judge said at the very end of his judgment[129], though there had been no argument, that he would date the judgment on the last day of argument "following Turner ...", without saying more. Then in In Re Jones; Bullis v. Jones[130] Stirling, J. made an order for the passing and entry of an order in the Chancery Division which had been drawn up in 1885 but had been overlooked for nearly six years. Some of the conventional decisions relating to delay in Chancery cases were cited but Jones was an obvious case, so that no relevant issue for present purposes was discussed, indeed the report notes merely that the judge "made the order". Then again caution was expressed in a later case, Belgian Grain Co. v. Cox & Co.[131], which followed Borthwick (No. 2) (and was also cited to the House of Lords in Nitrate Producers) and which, though relating to the antedating of orders in consequence of appeals, contained an expression of general opinion[132] by Bankes, L.J. (with whom Warrington and Scrutton, L.JJ. concurred) that, although the Court had jurisdiction, "it ought to be exercised with great caution, which indicates that there must be something exceptional in the facts to justify the making of the order". There was nothing exceptional, so no order was made.

221. Subsequently there has been only one other case in England, to my knowledge, in which Turner (or Ecroyd) has been applied in a reported decision, namely in Bonsor v. The Musicians Union[133]. There, after the Court of Appeal had heard a long appeal relating to the membership of a union in which declaratory relief was sought (on appeal) as to the meaning of its rules, the plaintiff died after reservation of judgment and before its delivery. Sir Raymond Evershed, M.R., required the matter to be regularised but then gave judgment for the union which was to be antedated to the date of "conclusion of the argument", pursuant to O.XLI r.3 and following Turner and Ecroyd, without further discussion of the relevant principles.

224. 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].

Discussion of nunc pro tunc orders in Australian cases

228. The paucity of discussion of the principle drawn from Turner and Ecroyd in recent years in England suggests either that the rule has little purpose left to it or that applications of it are so obvious as not to require reporting. There have, however, been a number of decisions in more recent years in Australia which point to its continued application in this country, albeit that some of its qualifications seem to have been given not inconsiderable significance. That is not to say, however, that courts in Australia do not have power to antedate orders or judgments pursuant to explicit rules of court, for each of them do and have had them for many years, but it is the circumstances in which that power should be exercised, whether in terms of making orders nunc pro tunc or otherwise, that is presently in issue. One may also note that the issue arose in some cases before explicit power was given and in the case of New South Wales, before about 1970, where rules and practice on the common law and equity sides had not merged and thus differed to a degree as they had elsewhere before the Judicature Acts.

231. One may first take an example from the Full Court of New South Wales in 1894, in which a co-defendant had died in the course of an action on certain promissory notes, where a considerable number of the earlier decisions, including Evans v. Rees, Miles v. Bough[141] and Turner, were cited: see Hoskins v. Thomson[142]. There had been no verdict or other decision because demurrers to the plaintiff's declaration had been set down, as was the practice, before the Full Court, but it had not yet been heard before Thomson died on 3 July 1894. The demurrers were argued, with the Court remaining ignorant of the death, on 10 August and judgment was pronounced in favour of the defendants that day. It was then moved that judgment in favour of the joint defendant Thomson should be entered nunc pro tunc, counsel arguing that the "press of business" had prevented the case from being heard during the preceding term. The argument then seemed to descend into a dispute over costs, the plaintiff claiming that the merits had not been decided. Darley, C.J. for the Court said[143] that all costs had been incurred while Thomson had been alive, so that he thought that his executors were entitled to receive the costs of the demurrers incurred in his lifetime "and of which they will be deprived by the action of his death, unless the court makes an order which will do justice between the parties in this case". He concluded[144]:

"This is one of those cases where the court will adopt a fiction of law in order that justice may be done. The judgment for the defendant Thomson must be entered up as of the last day of the second term ...".

One may see, with respect, some confusion of the issues raised and the tests laid down in the common law cases and those in the Court of Chancery, for his Honour took no account of the fact that at common law there had been no practice of directing entry of judgment as at a date earlier than that of any determination, whether or not the Court was to blame, as had been the principal emphasis in the Court of Chancery.

236. There was one Victorian case in which Turner was cited by counsel to support the antedating of a decree in a suit to set aside a conveyance: Colonial Bank of Australasia v. Pie[145]. Molesworth, J., after considering what should be done when one defendant died on the last day of argument, saw[146] no reason to apply Davies, Collinson or Turner or to "enter up" his decree nunc pro tunc, observing: "There is no use in introducing falsities into the decree." No issue as to survival of the cause of action arose.

239. I have been unable to find any other decision of this period dealing with the giving of judgments nunc pro tunc, although there were some decisions of a more general kind, such as Macansh, which dealt with abatement. One should, however, mention some brief references by the High Court generally as to the making of orders nunc pro tunc. For example, in Reis v. Carling[147], in considering the validity of rules permitting the entry of costs after an allocatur onto an interlocutory judgment, Griffith, C.J. observed that the entry subsequently of the amount of costs might be characterised as an order nunc pro tunc, in that the taxation took place some time after the entry of judgment. In saying that the rules were valid he also observed[148] that such entry of the taxed sum nunc pro tunc onto an existing judgment "might well be justified under the rule that a suitor is not to be prejudiced by delay on the part of the court". In Ashton and Parsons Ltd. v. Guild[149] the Court, without elaboration, made an order nunc pro tunc expunging a trade mark from the register and antedating the order, apparently because of the lapse of time, to a date when the matter was heard in the Tasmanian Supreme Court.

242. Brief reference was likewise made to the practice in the appeal which otherwise involved death of an appellant, Ryan v. Davies Bros, but the Court (Knox, C.J., Higgins and Starke, JJ.) said[150] that in actions where a plaintiff obtained judgment and then died:

"The right under the judgment has never been treated as an actio personalis or a right of action based on the original wrong. The right to enforce the judgment survives to the personal representative of the deceased ... and also the right to maintain that judgment to a Court of final appeal."

The Court continued by pointing out[151] that, where the plaintiff has failed and then dies, then "the original cause of action cannot be restored by reversal of the judgment nor can a new trial be had. The plaintiff is dead; and, if his original cause of action cannot be treated as merged in a judgment which is reversed, then that original cause of action must necessarily have ended with the death of the plaintiff, and cannot survive to his representative. All this is true and may be admitted."[152] Leave to appeal was granted only to challenge the judgment for costs. Next, two members of the Court in Parsons v. Bunge[153], made cautionary observations about the practice. Rich, A.C.J. said[154]:

"Orders nunc pro tunc may appropriately be made where the court possesses jurisdiction to deal with the matter, but jurisdiction cannot be conferred by antedating an order where jurisdiction does not otherwise exist (In Re Keystone Knitting Mills' Trade Mark)."

Williams, J.[155] said, in relation to the granting of leave to bring a bankruptcy petition, that:

"If leave had been necessary, it could not have been granted nunc pro tunc. The granting of leave is a condition precedent to the lawful issue of the writ or other legal process. Process without leave would be a nullity. The proceedings would be invalidly instituted, and the court would have no jurisdiction to make such an order."

250. It is necessary for the present to refer to only one other authority decided in Australia at this earlier stage, particularly because it says something about the so called rule in Keystone Knitting Mills. In Jeffery v. Jeffery[156] the High Court had to consider the effect of antedating an order for alimony pendente lite arising out of a suit for divorce. In speaking of what is the equivalent of the present O.XLI r.3 Latham, C.J. said[157] that "a court should not antedate a judgment so as to produce the effect of giving jurisdiction which it would not otherwise possess (In Re Keystone Knitting Mills' Trade Mark)", although the jurisdiction of the High Court to hear the appeal was not in doubt. As it had jurisdiction by virtue of its appellate powers to give such judgment as ought to have been given in the first instance, the qualification there was no longer of significance. Then in considering whether the order ought to be antedated the Chief Justice continued[158]: "The delay in hearing the appeal was not in any way the fault of the appellant ... the rule to be applied is actus curiae neminem gravabit ...", so that the Court should antedate the order for alimony. Dixon, J., in considering the significance of "the retroactive nature of orders for alimony pendente lite", likewise said[159] that "the general rule expressed in the maxim actus curiae neminem gravabit should apply where the difficulty arises from a course of judicial action ... The jurisdiction of the court is not at an end when the decree nisi is made absolute and it is not altogether true that the purpose of the remedy has gone." Moreover his Honour likewise considered[160] that the appellate jurisdiction might be exercised by doing what ought to have been done, saying:

"We cannot always ignore subsequent events when we come to make an order in lieu of an order appealed from that we are prepared to discharge. For instance we could not order a new trial after setting aside a judgment if a party had died and the cause of action had not survived: Ryan v. Davies Bros Ltd."

The other members[161] of the Court agreed with these conclusions, although Williams, J. added[162] that, in exercising the Court's jurisdiction to order alimony pendente lite: "In this way proper effect is given to the principle that the court will not allow unavoidable delays in litigation to interfere with the rights of the parties ...". Admittedly Jeffery concerned the exercise of appellate jurisdiction but it demonstrates how the various related principles have been seen to affect that jurisdiction.

255. 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.

258. Thus the first of a group of more recent cases cited to the Court, Foppoli v. Public Trustee[166], was concerned, as the Full Court of Western Australia emphasised, with the issue whether a right to claim compensation for a motor accident before a tribunal was decided in the end on the basis that certain rights passed to the deceased's personal representative and certain did not. Incidentally the tribunal had decided that it could antedate its order, although in the end it did not do so, dating its "judgment" as at a date after the plaintiff's death but including claims which by then had become barred. The Full Court unanimously decided that the proceeding was procedurally "abated" so that it could not continue hearing the case until it had been reconstituted by substituting the personal representative for the deceased plaintiff, following for this purpose Scruby v. Hoggan[167]. Otherwise the case was not dissimilar to the present in that the statute permitted the passing of the cause of action to the personal representative but on condition (inter alia) that the cause of action so surviving should not include any damages for pain or suffering: see s.4(2)(d) of the West Australian Act. The Court considered[168] that the action in the tribunal could proceed to judgment only at the suit of the personal representative and that the excluded damages could not be recovered. One member of the Court, Burt, J., also considered[169], although saying it was not necessary to so decide, that the tribunal had no power to "out flank" the actio personalis rule by making an order of the kind made in Turner or Ecroyd for, as he said, those cases were "not dealing with causes of action which at common law did not survive" and the Court had been referred to no case which before the Survival of Actions Act had allowed such an order to be made to overcome the death of a plaintiff. A similar view was reached[170], explicitly following Foppoli, in Sims at first instance.

261. One may conveniently next take a group of cases from New South Wales commencing, largely because the later cases make direct reference to them, to dicta by Davidson, J. in A-G. v. Wylde[171] and Mahoney, J.A. in El Ali v. Government Insurance Office of New South Wales[172]. Each of the cases was procedural and neither essentially was decided by reference to what was said on this subject. The observations in A-G. v. Wylde were of the most general character, largely directed to the power to extend time after a prescribed period has expired. In such cases Davidson, J.[173] said that such an order might be deemed or directed "to be filed nunc pro tunc, because the Court will not allow a party to be prejudiced by acts of its officers unless prevented from statute from so doing ...", subject to certain qualifications which need not be examined. Some years later, relying in part on A-G. v. Wylde, Mahoney, J.A. in El Ali discussed the rather more conventional nunc pro tunc order where, pursuant to a power to extend, time is extended after a period has expired, in these terms[174]:

"Where time is extended after its expiration, the order extending it would ordinarily operate on a statutory fiction: the extended time is fixed nunc pro tunc, to the effect that the time fixed is deemed to have been the time for which the period was specified originally. The operation of nunc pro tunc orders in this way has long been recognised in different areas of the law, thus ... It [has been] accepted that, if the failure had resulted from the default of a court officer, it might be ordered that the act might be done out of time nunc pro tunc and would therefore be effective: see A-G. v. Wylde ...".

Mahoney, J.A. then turned[175] to the historical basis for such orders:

In the common law courts, the rights of the parties depended upon or at least were affected by the entry of the judgment given in the proceeding. Judgments were entered of record when signed but it was recognised that the court might order that a judgment be entered nunc pro tunc: see Chitty's Archbold Practice ... and that the court might make an order, on the nunc pro tunc principle, in the case of the death of a party or of delay caused by a court official ... In Chancery, proceedings could not be taken on an order not entered and proceedings so taken were irregular and voidable, but the Court could order that a judgment be entered nunc pro tunc on an order made even a considerable time before ...".

His Honour's description usefully demonstrates why so many of the cases which purport to permit orders nunc pro tunc have relatively little effect on the legal rights of the parties other than those prescribed by court rules or practices.[176] Care should be taken when examining cases which have used the fiction to overcome procedural oversights, which at times require benevolent intervention by the courts: see the recent analysis of the policy underlying this approach by McColl, J.A. in Walsh v. Prest[177]. Where substantive rights are in issue quite different considerations arise.

268. The purpose of an order nunc pro tunc is important in considering the next group of cases, for in each a deemed order going to a time other than that when it was in fact pronounced was suggested as a way of getting past a statutory bar. In Clarke v. Bailey[178], a New South Wales Court of Appeal concluded that a provision of the Limitation Act 1969 (N.S.W.) required that an extension order should be made on or before a fixed date, so that the Court could not make an order out of time granting the relevant leave by antedating the order to an earlier date within time. The authorities to which I have just referred, including A-G. v. Wylde and El Ali, as well as a number of common law cases in which nunc pro tunc orders were made, were put forward[179] as a basis "to prevent unjust prejudice to a party claiming relief occasioned by delay which unavoidably arises without fault on that party's part and simply because of the exigencies of court lists", relying on the maxim actus curiae neminem gravabit, as discussed in Broom's Legal Maxims[180]. So an order was sought which would take a form deeming it to have been made before the time limit expired. Although Kirby, P. noted the "ingeniousness" of these comments[181], and that they flowed from the inherent powers of the Court, which were not contested, the respondents nevertheless argued successfully that it would defeat the clearly expressed terms of an act of Parliament, which the learned President (with the concurrence of Mahoney and Sheller, JJ.A.) considered "irresistible", as follows[182]:

"But they argued that in such a case ... the order would actually be `made' as from the date upon which it was pronounced. It might have an earlier operation. But nothing could alter the date on which the court actually `made' the order. This would be shown on the face of the order and in the register of orders of the court. The court would thus `make' the order nunc. It would not `make' the order tunc."

The particular section of the Limitation Act, s.4(4) said explicitly that "the court may make an order" by a date specified in the section. As his Honour continued[183], to make an order beyond the specified period would contradict the terms of the paragraph and defy its purpose, for the paragraph limited the power of the Court "to make orders under the sections". Because the power to extend time affected rights and liabilities it was essential for the Court to keep itself within the powers expressed by the statute and any order made otherwise than before 1 September 1993 (the relevant date) would not be "a lawful order". This discussion, cited with approval on a number of occasions, makes clear the limitations of the power of the Court to make orders nunc pro tunc and shows, albeit without direct discussion of Turner or Ecroyd, the limits on the power to deem things to be done which clearly have not been done at a certain time or within a certain period. In my opinion the inference to be drawn is that, whereas in certain circumstances where only procedural rights are affected, an order or an action may be deemed by a court to have taken place at an earlier time, the Court cannot make an order which deems something to have been done at an earlier time if the substantive rights of the parties preclude the later making of such an order. Those are the circumstances which have to be faced in the present case, at least in my analysis of it.

273. One may then turn briefly to some subsequent cases adopting the same approach and applying the same line of cases. For example, the Western Australian Full Court considered then in Bingham v. England[184], where Kennedy, A.C.J. (with the concurrence of Ipp, J.) referred to Turner, Borthwick (No. 2), A-G. v. Wylde, El Ali and Clarke and commented[185]:

"Traditionally, the power to make an order nunc pro tunc has been exercised cautiously and only when there has been something exceptional in the facts to justify the making of such an order. It has been exercised, for example, where the plaintiff has died after hearing his claim, but before judgment, and in order `to prevent unjust prejudice to a party claiming relief occasioned by delay which unavoidably arises without fault on that party's part and simply to avoid the exigencies of court lists'."

The latter quotation was taken from Clarke[186] but should be treated with caution because it did not form part of Kirby, P.'s own reasons but only part of his statement of the appellant's arguments, described on the following page as "ingenious" but which were rejected as an overall basis for the decision in the manner I have described above. Although expressing[187]

some doubt about the propositions in Borthwick (No. 2) because of the decision in Kuwait Airways (No. 2), Kennedy, A.C.J. also approved[188] the caution about exercising an unpossessed jurisdiction derived from Keystone Knitting Mills.[189]

280. Turner was also the subject of careful analysis by Kenny, J. in Kalejs v. Minister for Justice and Customs[190]. Although the case arose out of the death of the applicant, his right to seek judicial review relating to his proposed extradition was held, on the proper construction of the legislation, to be of the kind which did not pass to his executor.[191] Counsel sought to overcome that difficulty by seeking an order nunc pro tunc in reliance on Turner, Hoskins and Ecroyd, but her Honour refused to make any such order, relying on the reasoning stated in cases such as Foppoli and Sims, namely, that where the cause of action does not survive for the benefit of a deceased person's estate, "then judgment should not be entered nunc pro tunc"[192]. Likewise in McKensey v. Hewitt[193] Young, C.J. in Eq. said[194], in refusing to antedate an order for costs, that the rule had been interpreted "as authorising the court to antedate a judgment only on some good ground, that is, where there is something exceptional in the facts". He relied on Keystone Knitting Mills and noted that the most common case in which an order is antedated is where a party has died and is part heard, "unless the cause of action dies with the person", relying again on Foppoli and Sims and describing Belgian Grain as requiring the use of great caution.

283. Finally, I turn to a more recent decision of the High Court, one which appears to be the most recent so far as I can tell, dealing with the power to make orders nunc pro tunc or the like: see Emanuele[195]. The issue was whether one could apply for leave out of time for a winding up order in insolvency. By a majority (Brennan, C.J. and Gaudron, J. dissenting) it was held that the defect was merely an irregularity capable of being cured by granting leave nunc pro tunc. Toohey, J., with whom Dawson, J. concurred, said[196] that it was proper and appropriate to grant leave nunc pro tunc, but he referred more generally to the practice in granting orders of that kind. He recited a definition from Mozley & Whitley's Law Dictionary[197] to the effect that it meant "that a judgment is entered, or document enrolled, so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day". One may note that the definition seems to place greater weight on the common law practice, but it will be seen from his Honour's reference to what he describes as the first reported case of Devenish v. Bernford[198] that his primary interest was in the Chancery practice which was then concerned likewise with the entry up of orders within suitable periods, fixed then as expiring twice yearly and approximately nine months after the pronouncing of the relevant decrees.[199] Then his Honour referred to one of the earlier leading cases, Donne v. Lewis[200] where Lord Eldon had said:

"The Court will enter a decree nunc pro tunc, if satisfied from its own official documents, that it is only doing now what it would have done then."

Some four other decisions including Re Jones were referred to, but Toohey, J. concluded his brief description by saying that the practice had been incorporated into the Rules of Court. That description might suggest that the power was concerned only with the entry of decrees of orders or orders, but it is preferable, having regard to the outcome of Emanuele, to say that his Honour viewed the authorities as permitting the making of an order at a later time than might be permitted by some statutory provision, so long as the delay could be seen as the result of a defect or irregularity only. Kirby, J. in some greater detail[201] examined the various contentions, but by reference primarily to company law and other cases requiring leave and the power of the Court where justice required it "exceptionally" to conclude that leave might "be ordered retrospectively by a nunc pro tunc order".[202] Although the case was one relating to company law, the absence of any comparison and analysis of the power at common law means, having regard to the significance placed on Turner over the years, that one should, with respect, be cautious about applying the analysis of Toohey, J. outside the field which was then being discussed, though Emanuele has been followed many times, but primarily in that field.

Conclusions on power to antedate judgments and orders

289. This tedious exercise has been designed to show that, with a few minor exceptions, nunc pro tunc judgments and orders, whether dependent on Cumber v. Wane or Turner (or Ecroyd or any other decisions in this line of authority), have not been granted to alter the substantive rights of parties but only to overcome procedural irregularities and difficulties. To prove a negative is difficult but it is important to do so if the Court is to deprive the respondent of the benefit of the trial judge's decision to allow the award of damages which included punitive damages.

292. After examining each relevant case of which I am aware[203], as well as the standard procedural textbooks such as the various editions of Williams' Supreme Court Practice and the White Book over the years, as well as the last edition of Daniell's Chancery Practice (8th ed.) in 1914, it is possible to reach some conclusions, although there have been a few cases in recent years which have attempted to build on a misunderstanding of what Turner in fact decided.

295. There has been one oversight (in a sense) in my discussion of authorities to this stage and that is of the Canadian decision in Monahan v. Nelson[204] referred to by both sides in argument. It will be referred to later in this judgment but I have chosen not to examine in detail Canadian or United States authorities (or those from New Zealand) because it is impossible confidently to gain a sufficient understanding of the procedural rules applicable in each jurisdiction (with which courts in this country may not be familiar), albeit such cases may appear in part to rest on similar common law and Chancery authorities. Monahan was a split decision which revealed differences of practice and discussed a number of earlier cases in Canada all of which, at least at first sight, do not appear, with respect, to have grasped the significance of the earlier English authorities. Monahan itself will, however, be further examined for the problems it exposes and seeks to solve in relation to the application of the rule to the survival of actions legislation.

298. 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.

301. Next, the apparent conflict between the common law and Chancery practices should be rationalised in this way, which should also be taken as the intention of those responsible for drafting the relevant provisions of the Judicature Act and the consequent rules, in that, at least in England, the issue simply did not raise itself again. As already suggested, the previous Chancery practice up to the time of Turner provided no difficulty in practice for, although it seemed to provide a more generous mode of antedating judgments than had applied at common law, the only prejudice which might be said to arise from depriving a defendant (or other unsuccessful party) of the right to complain of the wrongful constitution of the proceeding by reason of a party's death was entirely procedural and capable of being remedied without causing substantive loss to the unsuccessful party. The kind of causes of action justiciable before the Court of Chancery were ordinarily not of a kind where the demise of the plaintiff (or other party) could be of significance, for ordinarily the Court was dealing with rights to which that party's personal representatives might succeed (or against whom they might be enforceable). No dispute had arisen in those earlier Chancery cases as to prejudice caused in those circumstances, which is what Hall, V.-C. was seemingly anxious to avoid by the latter part of his ruling on the issue.[212] Moreover, although the Vice-Chancellor sought to adapt or call in aid the common law practice taken from Chitty's Archbold[213], it is clear from the terms of the passage quoted and from the work itself that that practice was confined to antedating the entry of judgment. The passage itself used only the expressions "entered" and "entered up" in the two sentences cited[214]

and it may well be the case that his Honour understood at that time precisely what the significance of entry of judgment was. Indeed he concluded that part of his judgment by saying[215]: "The rule at law is that judgment in certain cases may be entered nunc pro tunc, whatever that may mean." His caution about using the Latin phrase was because, in my opinion, he did not see the effect of entry of judgment as altering the substantive rights of the parties, for the common law practice had been to recognise that those rights had fructified when the verdict had been brought in or the relevant interlocutory step or order had occurred. Those rights, having then become certain, should not be frustrated by the death of a party and by any delays in the complex procedures of the common law courts relating to change of parties and to entry up of judgment. On the other hand the common law practice was preserved in simple terms in O.XVII r.1 and its successors, and simplified further, so it would seem, by obviating the need to antedate judgments and orders.

306. If these matters be correct then (1) there is no inconsistency between the common law and Chancery lines of authority and (2) neither rule was intended to affect substantive rights or otherwise cause prejudice in its effectuation. Each rule was designed to overcome procedural difficulties of a kind which rarely if ever surfaced again in the English (or Australian) courts. Insofar as each line was incorporated into the Judicature Act rules, there was likewise no inconsistency.

309. Apart from some later misunderstandings and apart from the potential confusion arising from the later Full Court decision in New South Wales in Hoskins in 1894, I see no reason to doubt that the same practice should now apply. Insofar as Hoskins may be seen to be inconsistent, I would not chose to follow it. Of the later decisions of appellate courts I do not believe that, properly analysed, Clarke should be interpreted as supporting any wider power to make orders nunc pro tunc, once one understands the Court's rejection of the broader propositions there put forward by the respondent. Further I do not think it is necessary to read the West Australian decision in Bingham as necessarily endorsing any wider power, nor should any of the cases following it. If there were some guarded enthusiasm in the judgment of Kennedy, A.C.J. to throw off the Court's traditional caution in exercising the power to backdate orders,[216] then that opinion relied on the Court of Appeal's decision in Kuwait Airways which shortly thereafter was very firmly disapproved and overruled by the House of Lords in Nykredit. To the extent that the West Australian decision threw doubt on the judgments in Borthwick (No. 2) and Belgian Grain, I therefore would not follow it.

312. Nevertheless, what is being discussed is a power which has been seen to be a power derived from the common law or, as one might prefer now to describe it, an inherent power of common law courts to remedy a situation by dating an order in a way which could give effect to the justice of the case. It is a broad power and thus capable of adaptation to suit the circumstances arising in any particular case. What I have said up to the present is an attempt to demonstrate that a simplistic interpretation of Turner cannot give rise to what might be said to be a routine application of the Court's common law powers and those presently contained in the rules to backdate orders. There would have to be something else which the successful plaintiff as respondent to this appeal can call in aid, if the present judgment is to be justified.

Application of power to backdate orders in circumstances where survival of actions legislation applies

316. The injustice of the present case, so it is contended by the respondent, is that he will be defeated in his right to succeed as personal representative to the deceased plaintiff's right to a very substantial award of exemplary damages. It is fairly claimed by the executor as respondent that his father's action under current legislation survived in favour of the estate and that the qualification as to exemplary damages which might otherwise apply if the action had not been commenced before his father's death ought not qualify the deceased plaintiff's rights (or those of his estate), more especially as it is said that the delay in giving judgment was the only factor which prevented a judgment for all relevant damages being recovered.

319. These may seem powerful factors, so that I have seen it important to understand why a party may claim to have a judgment given nunc pro tunc in its favour. The difficulty is that in every case of this kind there is another party whose rights will be affected in the opposite way. That party in the present case may not be deserving of great credit and there is already a very substantial award of damages in the respondent's favour which cannot be set aside whatever be the outcome of this appeal. Nevertheless, the appellant's rights cannot be overlooked if as a matter of principle they should be protected.

322. As is pointed out in the helpful judgment of Newbury, J.A. in Monahan and in the articles and textbooks to which her Honour refers[217], there are a number of competing interests which require consideration whenever proceedings are affected by survival of actions legislation.

325. I have already referred to the historical basis of the actio personalis rule and to its gradual statutory abolition, albeit that that abolition is of a qualified kind. There can be little doubt that the heat engendered by disapproval of the seemingly illogical consequences of the original rule has led to a reaction which has as its moral basis, so it would seem, a distaste for the harshness of a rule which would cut off one party's rights or terminate another's obligations as at their death. Criticism of the latter is understandable, as a person seeking to enforce a personal right in tort was prevented from doing so because of the tortfeasor's death and notwithstanding that the latter may have left substantial assets to be distributed among creditors and beneficiaries. Greater fury seems to have been levelled at the denial of plaintiff's rights but, except at some existential level, by definition that plaintiff would never have enjoyed the fruits of the judgment and the vice of the old rule could be seen more in its depriving beneficiaries of the deceased's estate from their claim to succeed to a right, the loss of which may have directly or indirectly have depleted his or her assets, if those damages were not recovered.

328. Doubtless it was factors such as the latter which persuaded parliaments in the common law world to abolish the actio personalis rule only in qualified terms, by excluding a few causes of action (such as defamation but which varied from jurisdiction to jurisdiction) and qualifying in a number of ways the amount of damages which might be recovered (again varying from jurisdiction to jurisdiction). Consequently what was once a much disputed and criticised rule of the common law, which had its own policy basis and rationale of a kind which looked increasingly out of date if applied across the board, a legislative regime has now been substituted having its own elements of public policy which, reflecting the legislative will, has created its own "policy of the law" [218] giving a right of action to or against the estates of deceased persons but subject to specified statutory restrictions. So, if the Court were to give judgment nunc pro tunc in the present case, one would be giving a judgment (as has in fact occurred) which treats the plaintiff, although now dead, as entitled to recover damages which the law presently denies to a deceased estate, so that the Court would therefore be deeming that right to have fructified in a judgment during the plaintiff's lifetime. One may doubt, on the authorities presently cited, that it was ever intended that orders of that kind could retrospectively control the outcome of litigation by deeming lost rights to have continuing effect. In effect the learned judge was exercising a jurisdiction with respect to the estate which the Court did not possess at the time judgment was in fact pronounced because of the legislative qualification to the plaintiff's rights which had by then supervened.

331. It might be argued that the Court ought not to be concerned with the fate of a party or any change to that party's rights and obligations which occurs either after the litigation has commenced or at least after the trial has concluded in which those rights are sought to be vindicated. There can be little doubt that at common law a plaintiff's rights founding his or her cause of action had to be in existence at the time an action was commenced. So also are issues resolved as to whether an action has been brought within the times laid down by the Limitations Act 1958, for the bar is ordinarily expressed in terms of commencing litigation to enforce a party's rights. Then, although it is sometimes said that damages are assessed as at the date of trial, that is a gross oversimplification and in a sense misleading, for the damage a party suffers in most causes of action arises at the date of injury or other breach of duty, so that, for example, conventionally it is preferable to speak, even at the time of trial, of loss of earning capacity rather than loss of earnings.[219] In practical terms, however, damages are assessed at the time of trial with the benefit of information relating to events which have occurred up to the time of trial which can more precisely quantify the true loss or damage suffered by the plaintiff.

334. If these considerations relating to the time when the cause of action comes into existence or when it is first sought to be enforced by action were predominant, then the death of the plaintiff thereafter would be of no consequence. The fact is, however, that the common law has always seen the death of a party at any stage before the right has merged into a judgment as bringing the cause of action to an end. There can be no doubt, moreover, that at common law the death of a party during the proceedings up to the moment when there was in fact judgment and that party's rights (or obligations) thereby were transmogrified into rights pursuant to that judgment (or order), not only brought the proceeding to an end in that it was abated, but moreover it was left in a condition in which it could not be reconstituted by a writ of scire facias or by revivor or any other process for amending the parties, if the cause of action was not of a kind which survived in favour of or against the deceased party: see, e.g., Bowker v. Evans[220] and Phillips v. Homfray[221], in the first of which Brett, M.R. noted[222] that no verdict had been taken and that that "circumstance distinguishes it from many of the decisions that have been cited" and which have been referred to above.

337. It seems therefore that death was a matter which could be raised right up to the time when a proceeding was resolved by verdict or judgment and was not a matter which could be ignored, even though the trial and any consequential argument had concluded. Of course, by virtue of r.9.09 (formerly O.XVII r.1) there is no longer any question of abatement (if the cause of action survives) and the action must now merely be reconstituted in accordance with the rules,[223] But that does not mean that rights which do not survive are to be dealt with differently from the way in which they were dealt with in the past and in particular it does not mean that one can treat those rights as subsisting (or as capable of being resurrected) merely because they existed at the time the litigation commenced or the trial concluded. This may be seen, for example, from the observations of the High Court in relation to an action for defamation in which the plaintiff had died after an appeal had been instituted: see Calwell v. Ipec Australia Ltd.[224], where both Mason, J. (with whom Barwick, C.J. and Gibbs and Stephen, JJ. agreed) and Jacobs, J. observed that, if the appeal succeeded and if the decision had resulted in anything other than the restoration of the original verdict of the jury, then the plaintiff's cause of action could not be retried because it did not survive his death.[225]

340. In temporal terms, therefore, the parties' rights had to be determined when the matter was drawn to the trial judge's attention, that is after the death of the plaintiff. I should add that there seems no reason to conclude that, merely because the cause of action as such survived in this case in favour of the plaintiff, that the statutory restrictions as to permitted damages should be applied at any other date. In other words the passing of the cause of action to the plaintiff's personal representative was a qualified one which had to be resolved when and as soon as the Court became aware of the plaintiff's death, but as at a date no earlier than the date of death. This issue was examined in considerable detail in Monahan, the majority preferring to antedate the judgment but take into account the death as in part qualifying the damages to be recovered in a personal injuries claim, whereas the dissenting judge, Newbury, J.A., held that it was not proper to do other than assess the damages as at the later date when the fact of death was known to the Court. I add only that I am not persuaded by the reasoning of the majority that the judgment and the assessment of damages should be resolved in the way they decided.

343. 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.

346. In the end, therefore, the issue remains to be resolved whether the policy of the law requires consideration of the statutory restriction placed on the right to sue or whether that restriction should be ignored because of a more general policy relating to the antedating of judgments and orders. I cannot for myself see that the Court can ignore the express requirements of Parliament. To do so would be to create (or, more precisely, recreate) a right and to give effect to it by an increased award of damages by enforcing a right which no longer exists and which does not survive in favour of the plaintiff's personal representative. The practice of the courts in giving judgments or in making orders nunc pro tunc, effectively by antedating them, whether pursuant to the rules or under their inherent jurisdiction, cannot deem something to exist which does not exist and cannot deem something to have remained in existence which no longer remains in existence. That was the essence of cases such as Clarke and Foppoli and it is the policy of the law which should be insisted upon wherever substantive rights are in issue, whatever may be said in circumstances raising only procedural issues or in circumstances where existing rights are appropriately capable of being adjusted before or after the event.

349. The policy of the law in these circumstances is that which Parliament has prescribed and which cannot be gainsaid by the courts. Not every aspect of the survival of action legislation, specifically s.29 of the Administration and Probate Act, can be said to be entirely logical but for the most part the damages which do not survive under that section in favour of a plaintiff are damages seen to be personal to the plaintiff and which reflect losses which are either prospective, and thus never suffered and never capable of being suffered, or are of a kind which the legislature has said ought not to be recovered because they assuage the feelings of the person harmed in a way personal to the plaintiff, in that they result in pain or suffering or curtailment of expectation of life[226] or, as in the present case, are for exemplary damages intended to show the Court's disapproval of the conduct of the defendant which by law a plaintiff is entitled otherwise to seek. It has been suggested in the judgments in Monahan and in Luntz Assessment of Damages for Personal Injury and Death[227] that, although there may be reason for prohibiting recovery of exemplary damages against a defendant who has died, there may be less reason for depriving a successful plaintiff of those damages, since they are not intended primarily to compensate the victim but to express disapproval of and to penalise the defendant's behaviour. Be that as it may it is not surprising that they have been excluded for it is difficult to assert that such damages reflect any diminution of the deceased plaintiff's estate, except to the extent that once the cause of action arose, the plaintiff and his successors might have contemplated recovery of some such sum, indefinite as it always must be in prospect. Nevertheless the Parliament has chosen to exclude those damages, so they do not pass to personal representatives and they cannot be treated as having passed in the present case to the plaintiff's executor.

352. In the circumstances, the plaintiff's estate, being no longer entitled in law to claim damages in the form of exemplary damages against the defendant, and not being so entitled at the time the judge pronounced his orders, it was not appropriate artificially to deem the judgment to have been delivered and pronounced at some other date, namely the final day of the trial, in order to resurrect the plaintiff's right to that kind of damages. Although it is one of the precepts of the law that "an act of the court shall prejudice nobody", it is likewise a matter of principle that the Court does not recreate substantive rights which no longer exist in circumstances where that recreation of rights will in fact cause prejudice to another party. No order nunc pro tunc should have been made and the judgment ought not to have been antedated to the last day of the trial.

B. APPEAL ON AWARD OF INTEREST FOR DAMAGES FOR LOST OPPORTUNITY

356. An incidental matter, though not financially inconsiderable, arose at the end of the trial as to the manner in which interest should be calculated on the damages awarded in favour of the plaintiff. It was agreed that exemplary damages did not bear interest, although some recalculation will arise out of the conclusions reached in the first part of this judgment because the original judgment took effect from the deemed date in October 2001. Over and above the order for repayment of the sums invested, two sums by way of damages for lost opportunities were awarded, the first being $50,000 damages in respect of the original investment of $101,818.54, awarded by the judge for a period of "nearly three years concluding on 18 August 2000". The judge also awarded $500,000 for lost investment opportunities arising from the Telstra shares investment of $195,000, the period for which seems also to have been fixed as ending on 18 August 2000: see the primary judgment [2002] VSC 113 at para.[539].

359. In the end, having heard subsequent argument as to the calculation of interest, the learned judge gave judgment on that issue on 21 June 2002: see [2002] VSC 245. After some further discussion judgment was pronounced on 27 June 2002 in the sum of $1,039,801.40 "together with damages in the nature of interest of $234,706.74". That judgment, as previously noted, was stated to "bear the date and take effect from 16 October 2001". Although the Court does not have a transcript of these latter discussions, it would seem, consistently with the antedating of the judgment, that the interest was calculated to 16 October 2001. That would require, as the appellant concedes, that the interest be recalculated at a higher sum if it was successful only on the antedating issue and the relevant amount of interest would then, according to the appellant, be $279,685.90, as representing interest to 16 April 2002 when the judge pronounced judgment on liability and damages. Regrettably, since a new order must be made by this Court, that order should be dated as from the day on which this Court pronounces judgment (see Nicol (No. 2)), although consistently with the High Court's reasoning, it may well be appropriate to include the intermediate interest from 16 April 2002 until the present day, but necessarily the Court would hear argument on that particular issue.

362. The complexities of the issue relating to interest arise out of the nature of the claim and the way in which the plaintiff sought to estimate his damages and which the trial judge thought to be the appropriate measure of damages for losses over and above the return of the principal sums invested with the appellant defendant. No appeal was brought against the damages award and thus there is no reason to query its propriety, though others may have gone about the actual calculations in a slightly different way. Some brief detail of what in fact were the bases for these awards of damages must be set out.

365. The first sum advanced for the purpose of investment was the sum of $101,818.54 paid to the appellant in late October 1997 to buy and sell ASX listed securities for the plaintiff upon the various representations which the judge found to be made out. Secondly in November 1997 the plaintiff provided the brokers with $195,000 for the purchase of 100,000 Telstra shares which were bought on 17 November that year and which were to be used as a foundation to buy and sell listed securities for the profit of the plaintiff. Each of those sums were lost and indisputably had to be repaid to the plaintiff. That those two sums should bear interest from the date the action commenced to the date of judgment has never been disputed.

368. Different calculations may require different consideration of each of the two investments. As to the first sum of $101,818.54, the learned judge found that the value of the commercial opportunities lost as a result of negligent representations and seemingly other breaches of duty amounted to $50,000 over a period of nearly three years from October 1997 to 18 August 2000. His Honour fixed on that sum, not as a precise calculation, but as broadly representing what the appellant should have produced if it had not acted negligently or otherwise in breach of its duty to the plaintiff. It is unnecessary to examine the detail further as carefully analysed by the learned judge, but it may be stated broadly that the lost opportunity seen by his Honour was that of the plaintiff's capacity to continue to invest the sum of $100,000 over the relevant period which was judged in this case by reference to a consideration of movements of the stock market in particular classes of securities over the period, but making some allowance for contingencies. This figure was reached by the judge in respect of the various causes of action pleaded but in each case the compensation he thought appropriate for the loss of the relevant commercial opportunities was fixed at $50,000 for the period to August 2000.

371. A slightly different approach was taken to the claim arising out of the deposit of $195,000 with the appellant for the purpose of purchasing the Telstra shares. Here the Telstra shares were to be used as the basis for some vigorous speculative trading on the market which was promised to produce significant profits. The loss was contended to be as high as nearly $2.8M. by the plaintiff, at least on one basis formulated by an expert called on his behalf. The judge did not accept that calculation but equally he did not accept the defendant's contentions that there were no relevant losses of opportunities. He concluded that there was "a very valuable opportunity at the time the Telstra shares were sold [as they were, early in the piece] to embark on a margin-lending program to build up a substantial Telstra and bluechip portfolio". This also required extended consideration by the judge but, despite the difficulties, and taking what he said was a "cautious" approach, he found that there were opportunities lost, although, having regard to the nature of the proposed dealings at high risk, there had to be some significant discounting. In the end the damages were again a broad brush figure which the judge estimated to be $500,000.[228]

374. The essential point taken by the appellant in relation to the judge's finding on interest was that it involved a doubling-up of compensation by way of damages in that the primary sums misapplied ($101,818 and $195,000) were the subject of an award of statutory interest from issue of writ to 19 August 2000 (and beyond to 16 October 2001) while at the same time damages were awarded for loss of opportunities in respect of the same period. Substantially this was the argument put to the learned trial judge which was rejected in somewhat peremptory terms. While there is no cause to criticise the judge for failing to set out the various components of the award of damages in detail, for he had already done that in his primary judgment, there was at this stage relatively little analysis of the nature of the two awards. In substance (see his judgment at paras.[17] to [22]) his Honour accepted that the sum of $50,000 "reflected the lost investment opportunity in respect of the relevant period of nearly three years"[229]. Likewise he said that the award of $500,000 was for similar lost investment opportunities arising from the purchase of the Telstra shares and their potential reinvestment in accordance with the plaintiff's instructions. The appellant-defendant had submitted to the judge that a further award of statutory interest would be "the equivalent of awarding interest on interest which is not authorised by the Act". It seems also that the defendant had submitted that interest should not run from the commencement of the writ but "from the date of the judgment". The latter is clearly untenable in that it confuses the right to claim interest under s.60 of the Supreme Court Act 1986 ("the Act" for the purposes of this part of the judgment) with the right to interest on judgment under s.101 of the Act, since the latter right is one which flows in favour of every judgment creditor and is not within the direct power of the Court to award or vary.

377. In response to the appellant-defendant's main submission, as again on this appeal, the plaintiff had submitted that the defendant assumed that there was no distinction between the award of statutory interest and an award of damages for lost commercial opportunity, citing the well known passage from the judgment of Barwick, C.J. in Ruby v. Marsh[230] where his Honour said that the purpose of an award of statutory interest was to put the successful plaintiff "in the position in which he would have been had the amount of the verdict been paid to him at the commencement of the action". His Honour accepted the plaintiff's contention, stating that statutory interest was intended to compensate a plaintiff for the fact that he was entitled to damages which were subsequently found and awarded to him, so that there was no doubling-up of compensation.

380. As it presented its argument to this Court, the appellant, while accepting that authority[231] clearly had laid down that successful plaintiffs were ordinarily entitled to interest from the date of commencement of proceedings under s.60 of the Act and that the burden rested on it to show good cause to the contrary, argued that the object in every case was to compensate the plaintiff for being kept out of his money.[232] In this case the secondary damages for loss of opportunity, so it was argued, compensated the plaintiff a second time for that loss, if interest were paid on the principal sums ordered to be repaid. Accepting the conventional constraints the appellant's argument was summarised in this way:

"Insofar as the judge determined that there should be damages for lost opportunities, he did so having regard to how the lost moneys would otherwise have grown in value but for the negligence, breach of contract or misleading or deceptive conduct of the defendant. Therefore in the circumstances interest pursuant to s.60 should not have been awarded on each such sum of money as the value of the opportunity lost until the date of identification of that value."

384. To this the respondent also relied on the passage in Clarke v. Foodland[233], referring to s.58 of the Act, where it was said, as has been said on many other occasions, that the object of the section "is to compensate the plaintiff for being kept out of his money". But one must be wary of the reason why that statement has been repeated, for it has rarely been in circumstances where the damages have included damages for lost opportunity. One must also notice that the full proposition in Clarke[234] was that the object to compensate plaintiffs for being kept out of their money, "although not because he has on that account lost the opportunity to invest it, but because he has thereby been deprived of its use". The respondent said that there was no necessary equivalence between interest on the principal sums and lost opportunity damages.

387. Consequently in this area of the law one should be cautious about incanting general propositions without at the same time properly considering how they work in practice. If two heads of damages are properly awarded (as one assumes here, for there has been no appeal against those awards), then they ordinarily represent different losses which have been suffered by the plaintiff by reason of the defendant's breach of its obligations to the plaintiff. Merely because a sum has been wrongfully withheld it does not follow in the ordinary case that damages for lost opportunity should be, or normally are, awarded. There must have been some other aspect of the defendant's conduct towards the plaintiff which will justify the additional award of that kind of damages.

390. There is a further reason for being cautious about the generalisations frequently uttered as to the purpose of awarding interest on damages or the like. To say that the successful plaintiff should be compensated "for being kept out of his money" is often used to emphasise that the relevant interest rate, if it is not controlled by the Penalty Interest Rates Act 1983 (the "Penalty Act"), is designed to put plaintiffs back in the position where they would have been if not deprived, for then, as I have just noted, they are to be compensated for being deprived of the use of that money sum, howsoever it might be used by way of investment or otherwise. It is so expressed because from time to time successful plaintiffs have sought to be compensated for the fact that they are obliged to pay interest on their overdrafts or other borrowings. Thus, so it has been asserted from time to time, they might obtain full compensation for the burden suffered by them when unable to pay out or reduce pro tanto their borrowings by application of the second limb in Hadley v. Baxendale[235]. Indeed, the possibility that a court may properly include the latter in an award of damages in contract, apart altogether from any statutory right, was recognised by the High Court in Hungerfords v. Walker[236]. In the present case no such claim was advanced before this Court.

393. 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.

396. Nevertheless the pattern in Victoria has been that, unless good cause be shown, successful plaintiffs are ordinarily awarded interest at the rate prescribed under the Penalty Act without too fine a regard for these distinctions and I would assume that the plaintiff in the present case is entitled, at the least, to interest on the moneys invested and ordered to be repaid, although that would bring in a sum in excess of what it might have been invested at, as the quotation from Clarke suggests. The seemingly more difficult issue is whether the rates prescribed by the Penalty Act should be awarded on top of the damages reflecting the various loss of opportunities which formed a significant part of the primary judgment sum awarded to the plaintiff. Here again I would see no reason ordinarily to deprive a party of interest at the rates prescribed unless it was unfair to do so and in particular unless it could be shown that there was in effect double counting by awarding interest on those damages.

399. 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]

402. In all the circumstances, therefore, here one should not treat the whole of the lost profits as having been earned from the moment the first investment began, but, subject to that, I see no reason why interest should not be paid on the damages awarded for those lost opportunities. In the present case the calculation is difficult but covers a relatively short period. Moreover, in contrast to past wages, the profits may be seen to have been reinvested from time to time to produce the awarded sum for lost opportunities, albeit here the calculation of the judge terminated at 16 August 2000. The appellant's anterior point was that the invested sums should be deemed to have been required for the unconsummated investment program. As already pointed out, however, the two heads of recovery are different and the right to interest on the money sums should not be subsumed into the right to interest on the damages award for breach of duty and the like. The outcome seems consistent with that which occurred in Sellars v. Adelaide Petroleum N.L.[240], although the issue is not reported as having been argued at any level.

405. I would therefore award interest by way of damages for the whole period since the action was commenced with respect to the orders for repayment of the principal moneys invested, but I would award interest on the damages for lost opportunities only as from 18 August 2000. To break up the relevant sum by reference to the time at which those opportunities for profit were lost is not here appropriate for they cannot be treated as payable from week to week, as with ordinary wages, and one may assume, from the nature of the claim, that larger sums should have been earned by way of profits in the later part of the period rather than in the earlier part. As a matter of discretion, therefore, bearing in mind the rate

imposed by the Penalty Act, I would choose the date treated by the judge as the effective concluding date for the earning of those profits which was some two years after the action commenced. That in fairness would adequately penalise the appellant's failure to pay, as well as making some temporal allowance for the period during which the profits would have been earned, but which cannot be identified with any degree of precision.

409. I would therefore allow the appeal on the issue of damages to that extent and ask that counsel bring in new calculations, but only after argument has been heard on the application of Nicol as to the date from which any new order should operate. Curiously, if not perversely, this might be an appropriate case for deeming the making of this Court's final judgment to be at the time at which the decision was originally made (nunc pro tunc), that is in April 2002, but not at the date at which argument concluded in October 2001. Again, that regrettably will have to be a matter for argument but the Court's delay in this particular case may justify an order out of the usual.

412. The appeal, therefore, should be allowed on both principal issues argued, but, on the interest issue, only to a limited extent. Judgment should not have been antedated to a date before the plaintiff's death, so that damages ought to have been assessed in conformity with s.29 of the Administration and Probate Act. In consequence the quantum of damages awarded should be reduced by the amount of the judge's award of punitive damages, i.e., by $260,000. As a further consequence, both of that finding and of my conclusions as to the respondent's right to interest, the sums to be included for damages by way of interest will have to be recalculated, but only after hearing counsel as to how that calculation should be made.

[1] [2002] VSC 245.

[2] See [2002] VSC 113; [2002] Aust. Torts Rep. 81-665, sub. nom. Liyakat Ali v. Hartley Poynton Ltd.

[3] Qualifications relating to dust-related diseases were added in the year 2000, which are not here relevant.

[4] For common law proceedings a similar expression had earlier appeared in s.135 of the Common Law Procedure Act 1852 (U.K.) and also in the Common Law Practice Act 1856 of this State, but those earlier statutory provisions were also complex and did not apply to equity proceedings : see Daniell's Chancery Practice (5th ed., 1871) at pp.1377ff.

[5] (1719) 1 Strange 426; 93 E.R. 613; 1 Smith's Leading Cases (13 ed.) 373.

[6] (1874) L.R. 17 Eq. 561.

[7] It should be noted that in Turner's case Hall, V.-C., sitting in the Court of Chancery, in fact referred to the common law principles as stated in Chitty's Archbold, to which it will be necessary to return, because it was said that the principles in the two jurisdictions were not greatly different, but, at least to my eyes, that is a great simplification.

[8] See Chitty's Archbold's Practice of the Court of Queen's Bench (8th ed., 1847) Vol. II at p.1406; (12th ed., 1866) Vol. II at p.1569 fn.(c).

[9] See, e.g., the 5th ed. (1871) at p.539ff. on pleas in abatement etc. and at p.1377ff. on revivor. See as to the earlier practice: 2nd ed. (1845) p.785ff.

[11] One should note that one of the objects of the Chancery Procedure Act 1852 (15 & 16 Vic. c86) was to simplify matters of this kind, so that the procedure for amendment was to a degree simplified: see, e.g., ss.52-53.

[12] (1845 ed.) [1845] EngR 290; 2 Wms. Saund. 71 at 72n though it has often been cited as at 72i; but pp.72i to 72l more precisely describe the rules as to survivorship after death of one joint plaintiff or joint defendant.

[13] Vol. 2 at p.1406. (This was the last edition before the passing of the Common Law Procedure Act 1852.)

[14] For this proposition was cited (inter alia) 2 Wms. Saund. 72i, but, again, the correct reference for death of a sole party is to pp.72n to 72t.

[15] It seems, however, that if the plaintiff had the good fortune to die between interlocutory judgment by default and final judgment, the action did not abate as such, "if it be such as might originally be prosecuted by or against the executors", though the executors had to go through a procedure of revival by scire facias. It appears also that after judgment the same procedure had to be adopted: Chitty's Archbold (8th ed.) p.1408.

[16] 8th ed., p.1407. The statute had been largely restated by author and editor: cf. the text at 2 Wms. Saund. 72n.

[17] See Chitty's Archbold (8th ed.) p.1407 (see also pp.1017-1018) and 2 Wms. Saund. 72o-72q.

[18] The procedure for entry of suggestions is described in Chitty's Archbold (12th ed.) pp.1566-1568.

[19] At 1570. A similar procedure was prescribed by s.138 in cases where it was the defendant who had died. See generally the 12th ed. for these procedures, esp. at pp.1569-1571. (This was the last edition before the Judicature Act.)

[20] See also Flinn v. Perkins (1862) 32 L.J.Q.B. 10.

[21] The report at 43 L.J. (Ch.) (N.S.) 430 at 432 suggests that there was "discussion" about jurisdiction and the "state of the record", but gives no details, but one member of counsel (not referred to in the Authorised Reports) is thanked for his "searches".

[23] In part by reason of the passing of the Chancery Procedure Act 1852.

25] See also, generally, Woolworths Ltd. v. Crotty [1942] HCA 35; (1942) 66 C.L.R. 603 at 612-615 per Latham, C.J.

[26] See also the power under r.49.04 to "give" judgment notwithstanding the death of a party after a verdict or finding of fact but that rule says nothing as to antedating a judgment. Formerly O.XVII r.1 (see the second half of that rule) gave a right to have a judgment "entered", "whether the cause of action survives or not".

[27] See Chitty's Archbold (12th ed.) Vol. II p.524. A similar rule seems to have been passed in 1834: Hilary Term Rules 1834 Wm. IV r.3; for its terms and doubtful effects see para.[[]].

[28] (1921) 29 C.L.R. 523 at 533.

[29] (1948) 1 University of Queensland Law Journal 1.

[31] See Holdsworth's History of English Law, Vol. III pp.574-575, 578; Simpson History of the Law of Contract, 37, 83.

[32] Holdsworth, loc. cit., pp.575, 584; Simpson loc. cit. 83-84, 558-560.

[33] See Mich. 18 Edw. IV fol. 15 pl.17, a case of trespass for cutting trees.

[34] [1572] EngR 289; (1612) 9 Co. Rep. 86b, 77 E.R. 859.

[35] (1623) Cro. Jac. 662; 79 E.R. 573.

[38] See especially Winfield loc. cit. at pp.242-244.

[39] This section was repealed by the Survival of Actions Act 1942.

[40] [1675] EngR 1017; (1583) Savile 40; 123 E.R. 1000. The claim was for a "coup de 100 querks" and "pur prisel de 20 boves le Roigne", which was translated by Bowen, L.J. and Cotton, L.J. in Phillips v. Homfray (1883) 24 Ch. D. 439 at 457-458 as referring to a claim "for cutting 100 oaks ... and for taking 20 cattle of the Queen".

[42] In Holdsworth's view "the exceptions have to a large extent eaten up the rule", Vol. III p.585, though that was not a unanimous view. (Holdsworth was writing before the 1934 Act.) But cf. Phillips v. Homfray (1883) 24 Ch.D. 439 at 454 per Bowen and Cotton, L.JJ.

[43] 29 Columbia Law Review at p.244. Cf. the more critical opinion of Bowen and Fry, L.JJ. in Finlay v. Chirney (1888) 20 Q.B.D. 494 at 502-503.

[44] But see, e.g. Phillips v. Homfray (1883) 24 Ch.D. 439 (a suit for a declaration etc. arising out of trespass).

[45] There is a brief mention of the expression in the chapter on "The Judgment after a Verdict" but always with a bare cross-reference to the chapter on "Death etc.": see, e.g., 12th ed. at pp.525, 527.

[46] See below, at para.[[].]

[47] At 1572; 8th ed. at 1016. This is the passage relied on by Hall, V.-C. in Turner at 566: see below para.[[]. ]Similar propositions to those referred in this paragraph appear also in Tidd: The Practice of the Courts of King's Bench and Common Pleas in Personal Actions and Ejectment (9th ed., 1828) pp.932-935. See also 2 Wms. Saund. at 72(o)-(p). Tidd's discussion is in a chapter entitled "Of Judgments", but only in the context of abatement by reason of death etc.

[48] This latter qualification seems to rest on the maxim, referred to in later cases: "actus curiae neminem gravabit", but it seems never to have been used to alter substantive rights.

[51] (1840) 12 Ad. and E. 167 at 175; [1840] EngR 682; 113 E.R. 774 at 777.

[52] 12th ed. at pp.1569-1571; 9th ed. pp.1406-1407.

[53] Chitty's Archbold, 12th ed. at p.1572; Tidd at p.933.

[55] Ibid. Their dates suggest that they were added by the reporter.

[56] (1738) Barnes 255; 94 E.R. 902.

[58] [1925] A.C. 819 (P.C.)

[59] [1988] HCA 48; (1988) 165 C.L.R. 306.

[60] (1729) 2 Str. 915, 93 E.R. 939.

[61] At p 132. The passage is cited and the discussion is relied on generally by Holdsworth op. cit. Vol. IX pp 259ff.

[62] At the time they were many and complex, but for convenience' sake I shall call them "interlocutory orders or steps". For some examples, see the passage cited from Chitty's Archbold (12th ed.) p.1572 in para.[[] above.

63] Over the centuries the practices of each of the common law courts varied to a greater or lesser degree, so the practices here referred to largely represent those up to the passing of the Common Law Procedure Acts of 1852 and 1854 (U.K.), but the general descriptions which follow comprehend some of the changes brought about by those acts.

[64] (1939) 39 S.R. (N.S.W.) 77 at 79.

[65] [1951] HCA 47; (1951) 84 C.L.R. 362 at 370.

[66] Meaning "afterwards", as taken from the first word of that part of the nisi prius record which was added after verdict had been taken.

[67] This varied from one common law court to another and changed over the centuries, but in each case only in detail.

[68] (1889) 24 Q.B.D. 103 at 106, concurred in by Lindley and Lopes, LJJ.

[70] (1994) 35 NSWLR 342 at 358-361. His Honour (at 359G) suggests that, at least in the early days of the Colony (at 361C), it was necessary to move the Full Court for judgment, but that seems to have fallen into disuse much earlier in England and was not required in the Court of Common Pleas. The chancery practice was contrasted at 361-362.

[71] Finch v. Brook (1836) 2 Bing (N.C.) 710;. 132 E.R.274;. and see Chitty's Archbold 8th ed. at pp.457-458.

[72] 9th ed. at p.932 and other rules of practice allowed, e.g., entry of judgment during the succeeding vacation as of the first day of the preceding term, where a party died during vacation: ibid.

[73] Tidd 9th ed at p935. See, as to dating judgment to beginning of trial: Macansh v. Bowman (1872) 10 S.C.R. (N.S.W.) 370 (F.C.).

[74] Which maintained the existing practice: see Flinn at 11.

[75] R. Pl Gen. H. 4 W. IV reg.3. See Tidd's New Practice (1837) p. 548, being in effect a supplement to the 9th edition of his Practice.

[76] See as to the meaning of this word, i.e. that it gives the judge a discretion, per Pollock, B. in Hemming v. Batchelor (1875) L.R. 10 Ex 54 at 58, speaking of the successor r.56 of the Hilary Term Rules of 1853.

[77] 6th ed. (1845), at 72p fn.(p); Notes to Saunders' Reports (1871) at p.244 (a 7th edition which abridged the actual reports). The editor was the son of Sarjeant Williams, Edward Vaughan Williams, who was a judge of Common Pleas from 1846.

[78] [1840] EngR 682; (1840) 12 Ad & E. 167; 113 E.R. 774, in the judgment of Lord Denman, C.J. for the Court of Queen's Bench.

[79] I shall not examine the further complications arising from the fact that, as in that case, the plaintiff died during the vacation: see, e.g., Tidd's Practice 9th ed. p.932.

[82] At [1858] EngR 142; 175; E.R. 777.

[83] (1875) L.R. 10 Ex. 54 at 58.

[84] The word "fiction" was adopted with seemingly greater enthusiasm by Darley, C.J. on behalf of the Full Court of New South Wales in Hoskins v. Thomson (1893) 10 W.N. (N.S.W.) 121 at 123 (in a case where both Turner and Hemming were cited), where the Chief Justice said: "This is one of those cases where the court will adopt a fiction of law in order that justice may be done." The order related only to the costs of a successful demurrer by one of two defendants who died before the demurrer was heard.

[86] The only cases in the Authorised Reports in which Turner (or Cumber) has been applied were decided in the Chancery Division: Ecroyd v. Coulthard [1897] 2 Ch. 554; Bonsor v. Musicians Union [1954] Ch. 478 at 525. The court refused to apply Turner in Re Wilks [1891] 3 Ch. 59 and Borthwick v. Ellerslie Steamship Co. (No. 2) [1905] 2 K.B. 516. The pattern in Australia and elsewhere is less obvious (though not frequently applied), but in recent years Turner has been occasionally applied with relatively little attention to its antecedents and purpose.

[87] Clapham v. Phillips (1674) Rep. temp. Finch 25 (per Lord Nottingham L.C.); Man v. Ricketts (1845) 2 Coop. temp. Cott. 8 at 36; [1845] EngR 598; 47 E.R. 1022 at 1037; Re Risca Coal Mining Co. (1862) 4 De G. F. & J. 900. And see Daniell 9th ed 844 fn (b).

[88] See, e.g. Chitty's Archbold (8th ed.) Vol. I p.459: "The party entitled to the judgment may postpone the signing of it as long as he pleases", subject to the "two terms" rule: p.460.

[89] At 13; E.R. at 1023. The case contains extensive discussion and commentary on the Chancery practice to that time, including the effect of abatement: see at 35ff: E.R. at 1037ff.

[91] Nothing seems to have been said in Man v. Ricketts about the problems caused by earlier death.

[92] [1804] EngR 182; (1804) 9 Ves. Jun. 462; 23 E.R. 681.

[93] (1847) 2 Coop. Temp. Cott. 176; [1821] EngR 400; 47 E.R. 1111 (but not in the report of the latter case in [1849] EngR 365; 8 Hare 157). See below para.[[].

94] (1791) cited in 2 Fowl. Exch. Pract. 200. In Belsham the page is wrongly given as 169.

[97] I set out the note in full as Fowler's work is difficult to obtain.

[99] [1849] EngR 365; (1849) 8 Hare 157; 68 E.R. 313; 2 Coop. Temp. Cott. 176; [1821] EngR 400; 47 E.R. 1111.

[100] (1848) 2 Coop. Temp. Cott. 177; [1846] EngR 958; 47 E.R. 1112.

[101] [1855] EngR 351; (1855) 20 Beav. 355; E.R. 639.

[102] (1868) 37 L.J. (Ch.) 390; 10 W.R. 573.

[103] 5th ed., vol. 2, p.869-870 fn.(b).

[104] [1863] EngR 917; (1863) 1 H. & M. 597 at 600; [1863] EngR 917; 71 E.R. 261 at 262.

[105] Although, significantly, not in the last (7th) edition in 1912.

[107] Ibid. He explained that formerly there may have been prejudice, but that judgments by that time could not be relied upon until they were actually registered, so far as priorities were concerned.

[111] 10th ed. p.1502; 12th ed. p.1572: see para.[[] above.

112] See the works on common law practice already cited, passim.

[114] See Hamilton's Judicature Act 1883 pp.260-261.

[115] Reflected in the present r.49.04.

[116] (1889) 24 Q.B.D. at 107 per Lord Esher, M.R., with whom Lindley, L.J. (at 108) and Lopes, L.J. (at 109) concurred. This decision was given while it remained permissive for the trial judge to direct judgment.

[117] "Ante-dating is extremely rare" according to Atkins Court Forms (2nd ed.) Vol. 23 (1978 issue) p.226; (1988 issue) p.209.

[118] But cf. Phillips v. Homfray and Batthyany v. Walford (1887) 36 Ch.D. 269, where a claim akin to waste was the subject of an administration suit in the Chancery Division but was held unenforceable because of the actio personalis rule.

[119] The early common law cases occasionally had rested on varying kinds of delay, but in quite different circumstances.

[120] [1921] HCA 53; (1921) 29 C.L.R. 527.

[123] [1991] 1 A.C. 362.

[124] (1922) 91 LJ. K.B. 871 at 873-874 and 127 L.T. 726 at 727.

[126] [1990] HCA 45; (1990) 170 C.L.R. 306 at 318.

[127] [1994] 1 W.L.R. 985.

[128] [1997] UKHL 53; [1997] 1 W.L.R. 1627.

[130] [1891] W.N. 114; 39 W.R. 619.

[131] [1919] W.N. 317.

[132] Ibid. The passage was expressly approved by Lord Nicholls on behalf of the House of Lords in Nykredit at 1636. His Lordship also said that O.42 r.3 "cannot ... be used to fill a lacuna" in a statute.

[133] [1954] 1 All E.R. 822, esp. at 846 (reversed on different grounds in the House of Lords).

[134] [1929] 1 Ch. 92 (C.A.).

[139] [1949] HCA 28; (1949) 78 C.L.R. 570 at 580.

[140] [1989] 17 N.S.W.L.R. 260.

[141] (1845) 3 D. & L. 105.

[142] (1894) 10 W.N. (N.S.W.) 121.

[143] At 122-123. The Court seemingly included Foster and Stephen, JJ., in that, though not explicitly named in the report, they also had sat and decided the demurrers.

[145] [1880] VicLawRp 52; (1880) 6 V.L.R. (Eq.) 186.

[147] [1908] HCA 25; (1908) 5 C.L.R. 673 at 680.

[149] [1909] HCA 1; (1909) 7 C.L.R. 598.

[152] The statement of principle was a recitation of the defendant's argument, but the last sentence shows its acceptance.

[153] [1941] HCA 4; (1941) 64 C.L.R. 421.

[156] [1949] HCA 28; (1949) 78 C.L.R. 570.

[161] McTiernan, Williams and Webb, JJ.

[163] (1980) 6 Fam.L.R. 20.

[164] See (1981) 7 Fam.L.R. 667.

[165] [1986] HCA 61; (1986) 161 C.L.R. 438.

[166] [1970] W.A.R. 73.

[167] [1955] 55 S.R. (N.S.W.) 2 at 6.

[171] [1946] 47 S.R. (N.S.W.) 99 at 111-112.

[172] (1988) 15 N.S.W.L.R. 303 at 313-314.

[176] That is not to say, as has occurred in a number of the reported decisions, that such rights are unimportant in certain cases or that the fairness of the matter might deny the creation of such a fiction.

[177] [2004] N.S.W.C.A. 94 (with whom Sheller and Santow, JJ.A. concurred).

[178] (1993) 30 N.S.W.L.R. 556.

[180] 4th ed. (1864) at 123. See the last (10th) edition (1939) pp.73-75. The authorities, other than with the addition of Turner, seem largely unchanged.

[184] [1996] 17 W.A.R. 226. The same conclusion as to the operation of the rule relating to antedating orders was reached by the Full Court also in Templeton v. Hamersley Iron Pty. Ltd.; Dossett v. TKJ Nominees Pty. Ltd. [2001] W.A.S.C.A. 179. But the latter decision was reversed by the High Court in (2003) 78 A.L.J.R. 168, primarily on the construction of the relevant statute and without any discussion of the power to antedate orders, save for a brief delphic reference to another Western Australian decision by Kirby, J. at p.174 para.[78].

[186] At 568. Proposition No. 3 in the list of the appellant's arguments.

[187] Ibid. As noted above para.[[], ]Kuwait Airways (No. 2) was overruled in Nykredit.

[189] Pidgeon, J. (diss.) would have allowed the appeal in reliance on Turner and distinguishing Clarke: at 241-242.

[190] [2001] F.C.A. 1769; 101 F.C.R. 442.

[193] [2004] N.S.W.S.C. 636.

[195] Both this decision and Clarke were recently compared, although the matter was resolved on an issue of statutory construction, in the New South Wales Court of Appeal in Mealing v. Chand [2003] N.S.W.C.A. 205.

[198] (1691) in Beames' General Orders of the High Court of Chancery (1815) at p.290.

[199] See the footnote to the report of Devenish in Beames at 291-292.

[200] [1805] EngR 394; (1805) 11 Ves. Jun. 601 at 601; [1805] EngR 394; 32 E.R. 1221 at 1222.

[203] Which I have attempted to check through known computer databases, so far as the two leading authorities are concerned, as well as a number of other cases.

[204] (2000) 186 D.L.R. (4th) 193 (Court of Appeal of British Columbia).

[205] (1589) 1 Leonard 187 at 188; [1687] EngR 405; 74 E.R. 172 at 173 ("the matter is much in the discretion of the justices").

[206] [1812] EngR 547; (1812) 4 Taunt. 702; 104 E.R. 506.

[208] [1855] EngR 624; (1855) 11 Ex. 355 at 358; [1855] EngR 624; 156 E.R. 868 at 869.

[214] See above at para.[[].

[217] See esp. 186 D.L.R. (4th) at 214-216 paras.[33]-[38].

[218] See as to public policy and legislation, e.g., Mayne Nickless v. Commissioner of Taxation [1984] VicRp 71; [1984] V.R. 863 at 879-881.

[219] Cf. Medlin v. State Government Insurance Commission [1995] HCA 5; (1995) 182 C.L.R. 1 at 4, 16; Husher v. Husher [1999] HCA 47; (1999) 197 C.L.R. 138 at 143.

[220] [1885] 15 Q.B.D. 565.

[221] [1883] 24 Ch.D. 439.

[223] Cf. Managing Director New South Wales Technical Education Commission v. Fines (1993) 32 N.S.W.L.R. 385.

[224] (1975) 135 C.L.R. 325.

[225] Cf. per Mason, J. at 325-326 and per Jacobs, J. at 335.

[226] Pain and suffering and loss of expectation of life were not here relevant, even if they could have been proved, because the death was not caused by the pleaded acts of negligence and the like.

[228] There were some inconsistent statements in the judge's summary of findings at [587], but the analysis set out here uses the figures which must have formed the basis of the ultimate judgment and there seems to have been little dispute on the appeal as to the final figures adopted by the judge for the purpose of estimating the total award of damages.

[229] That closing date was there said to be "November 2000", but the calculations seem otherwise to have been made up to August 2000, so that I would treat the date so stated as a mere oversight.

[230] [1975] HCA 32; (1975) 132 C.L.R. 642 at 652.

[231] See, e.g., Clarke v. Foodland Stores Pty. Ltd. [1993] VicRp 81; [1993] 2 V.R. 382 esp. at 394. It is unnecessary to canvass each of the other authorities on this issue.

[232] Citing MBP (S.A.) Pty. Ltd. v. Gogic [1991] HCA 3; (1991) 171 C.L.R. 657.

[233] At 396. As to the relevant aspect of s.60 the Full Court seemed to accept that decisions on that section were applicable to s.58: see, e.g. at 396.

[235] [1854] EngR 296; (1854) 9 Ex. 341.

[236] [1989] HCA 8; (1989) 171 C.L.R. 125.

[237] [2000] HCA 42; (2000) 201 C.L.R. 321 at 328-329 para.[16].

[238] See Luntz at 609-611 (paras.11.3.17-11.3.18).

[239] See, e.g. G.E.F. Packaging Services P/L v. Turner (C.A. unrep. 5 September 1995) at pp.2-4, 9 per Brooking, J.A.

[240] [1994] HCA 4; (1990) 179 C.L.R. 332.