Holdsworth & Ellison v RSPCA

3 On 20 March 2014, being the 18th day of hearing, and on the following day, the plaintiffs sought leave to file and serve a Further Amended Statement of Claim. There was considerable discussion and argument concerning this. There was reference from both leading counsel to the issue of what was described as exemplary or punitive damages. I would refer to T1587 and 1592. The issue of exemplary damages had been raised briefly by Mr Langslow for the plaintiffs on 20 March 2014 - see T1549 and 1550. However, the bottom line is that, whilst on 25 March 2014 leave was given to the plaintiffs to file and serve a Further Amended Statement of Claim, in fact that document made no reference to punitive or exemplary damages. Other amendments were contained in it. Punitive or exemplary damages were not sought. The opportunity to seek to claim them was not taken by the plaintiffs.

4 Essentially my Ruling of 25 March 2014, which was in favour of the plaintiffs and granting leave to file and serve the Further Amended Statement of Claim, was to the effect that such leave should be given because the proposed amendments did not appear to contain anything in the nature of a new cause of action or contain allegations that were unrelated to the existing causes of action. The alleged facts contained in the new particulars were essentially facts that either had been known since the RSPCA's unsuccessful prosecution of the plaintiffs in 2005, or had arisen from documents discovered by the RSPCA. Further, at least some of that discovery had been somewhat tardy and had only taken place during the conduct of the hearing and shortly before the application was made. I was not satisfied that any prejudice had been established, but also gave leave to the RSPCA to further cross-examine each plaintiff in relation to matters arising from the further amendments.

5 In the Further Amended Statement of Claim, there are set out Particulars of Loss and Damage. No amendments to the material set out under this heading were made or requested. The quantum of damages sought remained at $2,466,100 (which I shall henceforth refer to as "$2.46m"). Aggravated or exemplary damages were not claimed.

6 In the proposed Further Further Amended Statement of Claim ("FFASoC"), inter alia, aggravated and exemplary damages are claimed and the quantum of damages set out in the proposed pleadings has increased to $7,833,831 (which I shall henceforth refer to as "$7.83m"). The actual amount claimed in the Prayer for Relief remained at $2.46m, but those on behalf of the plaintiffs have made it clear that, should damages be assessed at an amount above that figure, they will be seeking payment of that increased amount. I shall turn to a discussion of this subsequently, but in essence the plaintiffs would be relying upon s37A of the County Court Act 1958 as it then was, and the interpretation of same contained in Donelan v Incorporated Nominal Defendant [1973] VicRp 49; [1973] VR 490, which decision and interpretation was ultimately upheld by the High Court of Australia - see Incorporated Nominal Defendant v Donelan [1972-73] ALR 1139.

7 Thus, the new or additional relief being sought in the FFASoC could basically be condensed to two contentious matters. Firstly, there is the seeking of aggravated and exemplary damages. Secondly, there is, potentially, the effective trebling of the amount of damages sought, leaving to one side aggravated and exemplary damages.

8 I turn now to the submissions on behalf of the parties.

9 The submissions of Mr Langslow and Mr Berman on behalf of the plaintiffs, which submissions were made by Mr Langslow, commencing in part on 1 September 2014, but being substantially made on 28 October 2014, could be summarised as follows.

10 The plaintiffs wish to seek aggravated and exemplary damages. Whilst the requirements for pleadings can be dispensed with in relation to aggravated damages, draft amended pleadings have been prepared. Aggravated and exemplary damages were not specifically claimed previously, because the material that relates to those claims only fully arose, firstly, during the course of the cross-examination of Dr Irvine, and, secondly, as a result of certain findings of fact contained in the judgment of 8 August 2014 in relation to liability. As Rule 13.07 of the County Court Rules requires pleadings in relation to a claim for exemplary damages, the FFASoC makes it clear that both aggravated and exemplary damages are now being claimed. In relation to damages of this type, and particularly aggravated damages, some medical evidence has been obtained in relation to the effect of the events upon the plaintiffs.

11 The Rules require that a claim for exemplary damages shall be specifically pleaded, but the same is not true of aggravated damages. In addition, the Court is empowered to dispense with compliance with the requirements of the Rules. The important thing is that the Court seeks to achieve justice between the parties. The pleadings are only a means to an end - see Gould v Mount Oxide Mines Limited [1916] HCA 81. The claims for aggravated and exemplary damages have been flagged to the RSPCA. Medical reports relating to the claim for aggravated damages have been delivered to the RSPCA. Reference is also made to the case of Wolters v The University of the Sunshine Coast [2013] QCA 228 (to which Mr Langslow later returned).

12 That exemplary damages should be awarded was an issue raised by the plaintiffs on 20 March 2014, being the 18th day of hearing - see T1549 and 1550. At T1558, Mr Scanlon, for the RSPCA, stated that there had never been a claim for exemplary damages, there was no basis for it and that "we were aghast at it". This further indicates that the RSPCA was aware that such a claim might be made.

13 The plaintiffs should be entitled to damages for the loss sustained, this including losses additional to the loss sustained in relation to the cattle per se. Such additional losses relate to the effects that the events have had over the years on their health and psychiatric condition.

14 Aggravated and exemplary damages are sought on the basis of the findings that the Court made in relation to the conduct of Nicholls, findings of fact in that regard, and findings of fact based on the evidence given by Dr Irvine during the conduct of the case. Until the matter crystalized in the judgment on liability, it was premature to make an application to again amend the Statement of Claim. It is understandable that the plaintiffs, through their legal advisers, did not claim damages of this sort in their original or amended pleadings.

15 There have been a number of cases where aggravated and exemplary damages have been awarded in cases where persons in official positions have overstepped the mark and behaved in a way that has caused injury and damage. Aggravated and exemplary damages can, and have been, awarded in a wide range of cases, including negligence cases. Returning to the decision in Wolters, the defendant was held vicariously liable for exemplary damages in a case where an employee had been harassed by a supervisor.

16 Reference is also made to the decision of the High Court of Australia in Lamb v Cotogno [1987] HCA 47. In that case, the High Court in turn referred to the decision in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40, in which it was confirmed that, in actions for tort, exemplary damages may be awarded for conduct of a sufficiently reprehensible kind. In Lamb, it was also said that the well-settled judicial approach in Australia extends exemplary damages to a range of torts wider than libel cases. In Lamb, the High Court also essentially confirmed that exemplary damages were intended to punish a defendant for conduct which showed a conscious and contumelious disregard for the rights of a plaintiff and to deter a defendant from committing like conduct again. The High Court also rejected the proposition that, because a defendant was insured and it was the insurer that would pay the damages, including exemplary damages, it was inappropriate that they should be awarded, the object of exemplary damages being to punish and deter.

17 In Giller v Procopets [2008] VSCA 236, the Court of Appeal determined that aggravated and exemplary damages were available in a case effectively based upon domestic assaults. In Gray v Motor Accident Commission [1998] HCA 70, the High Court ordered exemplary damages in a case where a motorist had apparently deliberately run down a pedestrian. Whilst it was argued that this meant that the penalty would in fact be paid by the citizens of the state rather than by the motorist, the High Court said that this was no bar to the claim being made and paid through the insurance scheme.

18 In the present case, it is important that the question of liability had been separated from the question of damages. That was done by the consent of the parties and with the agreement of the Court so that, after liability had been determined, the question of damages was to be argued and decided. Mediation as to damages has been ordered, but cannot proceed because of issues relating to whether aggravated and exemplary damages can be sought. It is also to be remembered that there was a considerable delay in the RSPCA providing appropriate discovery and access to documents. Arguments concerning this continued during the earlier stages of the trial. This also created a difficulty for those advising the plaintiffs as to whether aggravated and exemplary damages should be claimed. It is appropriate and in the interests of justice that the proposed amendments be permitted.

19 The submissions on behalf of the RSPCA proceeded in two stages and on two occasions. Some submissions were advanced briefly by Mr Scanlon on 28 October 2014. More detailed submissions were made by Mr Christie on 28 November 2014. The reply of the plaintiffs, which expanded the issues somewhat, was also heard on 28 November 2014. I shall deal firstly with the submissions on Mr Scanlon of 28 October 2014.

20 In Gray, Callinan J stated that a claim for aggravated damages requires specific pleading, particulars and evidence directed to it. Secondly, reference is made to what was said by J Forrest J in Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70. In relation to an application for leave to amend the pleadings, his Honour stated that:

"A court on this type of application will not engage in examination of the merits of the case foreshadowed by the proposed amendment."

21 Thirdly, it was only on the afternoon of 27 October 2014 that the plaintiff served upon the RSPCA a copy of the proposed FFASoC. In that document, damages were sought in the sum of $7.83m - an uplift of some $5m. Attached to it are very long reports from allegedly expert witnesses. All of this has created problems behind the scenes for the RSPCA itself, in addition to those representing it. There are also the additional claims for non-pecuniary loss damages in relation to the pain and suffering on the part of the plaintiffs. Concerning this last-mentioned point, the provisions of Part V of the Wrongs Act 1958 apply. The giving of notice and the obtaining of the required certification in relation to significant injury are conditions precedent to the claiming of such damages.

22 There was then a discussion between Mr Scanlon and myself as to what, prior to the surfacing of the proposed FFASoC on the previous afternoon, might have been anticipated to be the issues in dispute before me. My belief and recollection was that it was the situation in relation to aggravated and exemplary damages that was to be discussed, and that it was the argument concerning them which was an impediment to the carrying out of the ordered mediation. Mr Scanlon was also of that view. The almost trebling of the damages sought had not been clearly foreshadowed, if foreshadowed at all. Mr Scanlon agreed that, until the preceding afternoon, the issue of aggravated and exemplary damages was what the RSPCA thought it was facing.

23 The end result was that I acceded to an application that the RSPCA should have a modest amount of additional time to consider its position and that I should then hear further argument as to whether leave should be given in relation to all contentious aspects of the FFASoC, to parts thereof, or whether leave should be refused absolutely.

24 After another brief adjournment because of a very sad development involving a legal adviser of the RSPCA, the matter then returned on 28 November 2014, and I shall turn now to the submissions made by Mr Christie on that day. I should add that Mr Christie spoke to very detailed written submissions. His written and oral submissions could be summarised as follows.

25 Mr Christie stated at the outset that there had been a further alteration to the FFASoC, this being that the amount claimed in the Prayer for Relief had reverted to $2.46m (I would refer back to the discussion in paragraph 6 above).

26 Mr Christie's submissions commenced with the assertion that the amendments sought are significant. They involve something in the order of six new claims and come after a trial that lasted 44 days and involved 25 or more witnesses. Some may have remained in Court after giving their evidence and heard the evidence of others. Further, the judgment is a public document and various witnesses will conceivably have had access to it. The judgment summarises evidence and cross-examination, in addition to making findings in relation to credibility of witnesses and the like. Thus, some witnesses will be required to return and give evidence about matters that have already been the subject of questioning. In relation to aggravated and exemplary damages, the evidence of witnesses being called could involve Dr Irvine and Nicholls, particularly in relation to the motivation of Nicholls in acting in the way he was found to have acted.

27 Secondly, there is the trebling of the economic loss claim. That is without the addition of the claim for aggravated and exemplary damages. Exemplary damages, sometimes known as punitive damages, are effectively awarded to punish a wrongdoer for malicious conduct or contumelious disregard of a plaintiff's rights. Aggravated damages are awarded when the manner in which the wrongdoing is committed is particularly insulting or humiliating to a plaintiff. Unlike exemplary damages, they are to compensate, rather than punish. There may have been some evidence in this regard during the course of the trial, but there was no sharp focus upon it, as there would be if the amendments were allowed.

28 Dealing with the proposed amendments insofar as they concern aggravated and exemplary damages, the RSPCA objects to such proposed amendments on a number of grounds. Firstly, at this stage of the proceeding, the amendments would cause unfair and non-compensable prejudice to the RSPCA. Had the amendments been made before the trial began (or when the Further Amended Statement of Claim was filed and served), the RSPCA would have made quite different decisions and run the trial differently.

29 Necessarily, a ruling concerning exemplary damages would involve findings as to the conduct and motivation of Nicholls. If the allegations now made had been there at the outset, that would have caused the RSPCA to look more closely at the conduct of Nicholls and the issue of whether or not it would be likely to be found vicariously liable for that conduct.

30 If the amendment in relation to exemplary damages is now allowed, the RSPCA would need an opportunity to meet it. This would entail a consideration of the issue of vicarious liability afresh. The Court, having made a finding that the RSPCA was liable for the tortious conduct of Nicholls, the issue would have to be re-examined as to whether, if there was malicious intent, that conduct is brought home to the RSPCA. It could lead to the situation of a possible finding that, whilst the RSPCA is vicariously liable for the economic loss damages, it is not liable for the type of conduct sufficient to found an award for exemplary damages. If this is so, Nicholls, for his conduct, should be punished, but he is not a party to the proceeding.

31 If the amendments are allowed, the RSPCA might have to contemplate whether it applies to have Nicholls joined as a defendant. It would be an unacceptable situation to have a party being joined after there has been a hearing on the question of liability.

32 Further, at paragraph 737 of the judgment, the Court found that the RSPCA was negligent in not bringing a letter of Nicholls to the attention of its Chief Inspector (that letter was one from Nicholls to a Director of the RSPCA in which Nicholls stated that he was having various mental problems - see, for example, paragraph 493 of the judgment).

33 The Court also stated that whether such negligence was productive of loss and damage sustained by the plaintiffs was another matter and that the cause of Nicholls acting in the way that he had was a moot point. If the amendments are allowed, the cause of him acting in the way that he did becomes a necessary enquiry. Reference is also made to paragraph 739 of the judgment, where a range of possible explanations for his behaviour is touched upon. The specific finding was that the motivation for the behaviour of Nicholls could not be established on the basis of the evidence. Accordingly, whilst the RSPCA had ignored the letter from Nicholls, the state of the evidence did not permit the Court to find that such negligence was causative of loss and damage.

34 If a claim for exemplary damages is allowed, it raises the spectre of inconsistent findings. Parts of the judgment would have to be revisited and, effectively, re-written. Had there been before the Court a claim for aggravated and exemplary damages, the Court would not have embarked upon the type of commentary and analysis of the circumstances and motivation for the conduct of Nicholls which is contained in the judgment.

35 Further, there is no evidence before the Court as to why the plaintiffs did not include these matters at the outset or when they obtained leave in relation to the Further Amended Statement of Claim. Whilst exemplary damages were mentioned and raised on day 19 of the trial, they were not then included in the Further Amended Statement of Claim which was discussed on day 20 and ruled upon on day 21. The comments made by the Court and referred to above would now come under scrutiny in the Court's consideration of what is a new claim. It is now too late. The Court has already embarked upon at least a commentary, if not findings, which preclude the plaintiffs from asking the Court now to make further enquiries and findings in relation to the same areas referred to in the earlier judgment. All of this represents a powerful reason as to why leave should not be granted. It is a very late application and one made after the Court has pronounced upon the very facts into which there would need to be an enquiry.

36 Further, if these amendments are allowed, there will be significant delay and additional cost. If the amendments in relation to quantum are allowed, the experts are going to have to do their work again, and the earlier work, including the evidence given before the division of the case, will be lost. Counsel for the plaintiffs has already foreshadowed that at least the two plaintiffs will need to be recalled, something which would not have been needed if the amendments had been present at the outset. This is not efficient case management. Reference is made to the Civil Procedure Act 2010.

37 In addition, the plaintiffs' explanation in relation to the delay in seeking the amendments is insufficient. The evidence of Dr Irvine and the findings of fact in relation to liability do not provide a rationale for the late inclusion of the amendments.

38 Further, the plaintiffs have had sufficient opportunity to make the amendments. We are up to the fourth Statement of Claim. There was a substantial overhaul of the pleadings on day 19. A spectre of exemplary damages was raised and not taken up. Further, case law suggests that aggravated damages are not available in actions in negligence.

39 In relation to the Civil Procedure Act, late amendments such as these are contrary to the purpose of the Act and the mischief which it was designed to cure. If the amendments are allowed, this would not be in accordance with case management that is efficient, timely and cost effective. Reference is also made to s9 of the Civil Procedure Act.

40 In relation to late amendments, reliance is placed upon the Judgment of Vickery J in Namberry Craft Pty Ltd v Daniel Andrew Watson & Ors [2011] VSC 136. A list of relevant factors, being a summary of principles established in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, is included in that Judgment. These include such considerations as substantial delay, wasted costs, unfair prejudice and inconvenience, efficient case management, public confidence in the system and whether a satisfactory explanation has been given for the amendment at the stage when it is sought.

41 In the present case, further inconvenience and stress will be caused to Nicholls, Dr Irvine (who resides in New Zealand), the financial experts and the like. Other factors listed by Vickery J have already been touched upon, but it should be emphasised that granting such a late amendment would lessen public confidence in the judicial system. Counsel for the plaintiffs have said that they are desperate for the case to be concluded, but this hardly sits with the effect the proposed amendments will have.

42 Further, no satisfactory explanation has been given for amendment at this stage. There is no affidavit material. All that has been put on behalf of the plaintiffs is that the proposed amendments arise from the decision in relation to liability and from the evidence given by Dr Irvine. The plaintiffs should not be permitted to amend on the basis that they have read what the Court thinks about the witnesses in the case and now wish to launch new claims arising from this. That is essentially a "free look" about the way that the judge is thinking. That is particularly so when the plaintiffs had the opportunity on day 19 to make the appropriate amendments, but did not do so.

43 Reliance is also placed upon the Judgment of Vickery J in Amcor Ltd & Ors v Trevor Mark Barnes & Ors [2012] VSC 434, where his Honour observed that the right to know the case sought to be made against a person is a fundamental right. It is a rule directed to the obligation to give a party a fair hearing and is a minimum requirement. Had the RSPCA known the situation in the present case, it would have conducted itself differently in relation to both strategy and the conduct of the trial.

44 Whilst there were sensible and logical reasons for splitting the case so that liability and the number of cows involved was first determined, this was done in the absence of a claim for aggravated and exemplary damages, as well as the personal injuries claim. It was also done when the economic loss claim was $2.46m as opposed to $7.83m. The decision to split the case was taken at a certain time and on the basis of certain pleadings. Now liability has to be revisited in relation to aggravated damages, exemplary damages and the personal injuries claim.

45 In Murphy v State of Victoria & Anor [2014] VSC 363, Croft J discussed the difficulties relating to the splitting of a case. His Honour highlighted the fact that there may be a significant overlap between the evidence adduced on the hearing of the separate questions. If the amendments are allowed in the present case, there will necessarily be a considerable amount of overlap in the second trial in this case. When I pointed out to Mr Christie that, in relation to the expert evidence concerning damages, some witnesses had been called before the division of the case and necessarily might have been recalled, whether or not the amendments were allowed, he essentially agreed that this was the situation. Given that the questions of liability and the number of cows have now been resolved, the witnesses in relation to damages who had given their evidence prior to division of the case would probably need to be recalled. With liability and the number of cows involved now defined, further evidence would be required. In answer to that, Mr Christie stated that he could not point to any particular piece of conduct that might or might not have been embarked upon during the hearing if the damages sought had been $7.83m as opposed to $2.46m. However, with the revised economic loss claim, there is a lot of material at which the experts need to look. Essentially, they need to start again. In particular, the expert or experts on behalf of the RSPCA will have to review the situation.

46 I might say that I had indicated to Mr Christie that I understood the arguments in relation to the amendments relating to aggravated and exemplary damages and directed his attention towards the amendments relating to quantum. In this regard, he pointed out that, notwithstanding the fact that, in the body of the pleading of the FFASoC, the plaintiffs stated that their economic loss and damage totalled $7.83m, the amount claimed in the Prayer for Relief remained at $2.46m. The ultimate position, as set out in an accompanying letter from the solicitors for the plaintiffs to those for the RSPCA (and subsequently confirmed by Mr Langslow), is that the plaintiffs, whilst claiming $2.46m in the Prayer for Relief, are, in accordance with the decision in Donelan, in fact seeking $7.83m. The figure of $2.46m had been agreed upon, after some argument, as being the jurisdictional limit, and a ruling was in fact given that the case could proceed on the basis, as intended, that the damages sought by the plaintiffs were of that order. At the same time, as shall be discussed, I had reserved any decision, subject to argument, about whether there would be any further increase in the quantum of the claim. That was because one expert witness on behalf of the plaintiffs, Mr Tol, had produced a figure in excess of $6m. In accordance with the decision in Donelan, the plaintiffs are now arguing that damages can be awarded above the agreed, enlarged jurisdictional limit and up to $7.83m. The RSPCA argues that the Court's jurisdiction should not be expanded as the plaintiffs wish it to be.

47 Mr Christie argued that there is a distinction between what is occurring in the present case and the situation in Donelan. In Donelan, a jury came back with a verdict of more than the limit of the jurisdiction. The High Court ruled that, in those circumstances, the relevant section of the County Court Act allowed the Court to give judgment beyond its jurisdiction. That is not the situation here. It is not a situation where a jury might come back with something which has not been foreseen. It is not a situation where there might be a long trial, and suddenly the Court is deprived of its jurisdiction because a judgment is asked for that is in excess of that jurisdiction. As was said in Donelan by Newton J at p509 of the relevant Victorian Reports:

"If it were shown that at the time when a plaintiff commenced a common law personal action in the County Court he in fact was then seeking damages in excess of the relevant limit prescribed by s.37(1)(a), then he would be guilty of an abuse of process ... But there is nothing before this Court to justify the conclusion that when the present plaintiff commenced his action on 2 September 1970 he had any thought of recovering more than the $8,000 damages which he then claimed, and indeed the circumstances that he instituted the action in the County Court at a time before the enactment of s37A is very much against any such conclusion."

48 Applying that to the present case, the RSPCA consented to the claim being one for $2.46m by way of economic loss. The plaintiffs are now bound by that level of damages, unless they can persuade the Court that there is something that has occurred - something unexpected like a jury coming back with a verdict. There is nothing in the evidence, and no affidavit material, supporting such a proposition. There is no basis for further enlarging the jurisdiction. There is nothing that was not known when the consent was given to a claim for $2.46m. For the Court to exercise its discretion in enlarging its jurisdiction, there must be some basis for it, not just that there is a new claim with some increased numbers involved. The decision in Donelan does not allow a party to launch a claim that is within the jurisdiction (or the agreed jurisdiction) and then, effectively, treble it on a whim.

49 The situation is no longer as it was when there was agreement reached in relation to that amended, increased claim. Now there has been a judgment, with many factual findings, as well as findings in relation to witnesses. With the benefit of that, the plaintiffs are trying to increase their claim. To do this is not in accordance with what is set out in the Civil Procedure Act. It should be added that the report of the plaintiffs' expert, Mr Tol, makes it clear that the judgment in relation to liability had been given to him. He has mistakenly read the Court's summary of the evidence-in-chief of the second plaintiff as being an opinion expressed by the Court. The report of Mr Tol was forwarded by the plaintiffs' solicitors to those of the RSPCA. It is also obvious that, before the hearing, and during it, the legal advisers of the plaintiffs would have known the content of evidence such as that given by Mr Tol and by Mr Sutherland, a witness called by them. By the time they obtained the consent of the RSPCA to a jurisdictional limit of $2.46m on day 19, they must have known what the evidence was or was going to be. The foundation for the increase in the claim was knowledge which the plaintiffs possessed at the time that they made their first application to increase it.

50 Further, the plaintiffs support their application for an increase in their economic loss claim by referring to findings in the liability judgment. They are taking unfair advantage of the division of the case in order to increase their claim three-fold. At all times, including when there were earlier amendments, the necessary facts in relation to economic loss were, or should have been, within the actual knowledge of the plaintiffs. It would be a different situation if the proposed amendments arose out of some evidence given by witnesses on behalf of the RSPCA. Further, they have had the advantage of observations which the Court made in relation to witnesses that were called, including Mr Sutherland.

51 The plaintiffs had their opportunity on day 19, when substantial amendments were allowed. They did not take advantage of it. The proposed amendments in relation to both aggravated and exemplary damages and increased damages should not be allowed. The decision in Donelan does not permit the three-fold increase in the claim which is sought, and, even if it did, the Court's discretion should be exercised against such an amendment. The evidence supporting such an increase was, or ought to have been, within the plaintiffs' knowledge and instructions, coming from witnesses whom they called.

52 Otherwise, Mr Christie relied generally upon the written submissions which he had placed before me.

53 I had effectively indicated to Mr Langslow that, because of the manner in which things had unfolded, he would be given a certain amount of latitude in relation to any reply. His reply could be summarised as follows.

54 It was indicated by the Court towards the end of the hearing on liability that it was to be expected that the financial experts who had given evidence before the division of the case would need to revisit their figures in the light of the findings of fact and ruling made concerning liability and the number of cows involved. That has been done, and new figures obtained. The earlier figures were taken on the basis of commercial cattle, but the finding is that they were stud cattle. Thus, the claim is now properly quantified on the basis of such matters as loss of artificial insemination opportunities and the like. The evidence of the plaintiffs in this regard has been vindicated.

55 The RSPCA should not get an advantage on the basis that it effectively denies the finding that the Court has made. It was always the position that the plaintiffs would seek to recover the value of the loss caused by the RSPCA, and that includes a proper appraisal of the value of the animals.

56 Following the decision in relation to liability and the number of cows, the matter was again referred to the experts to produce updated valuations and the like. That is what occurred.

57 $2.46m may have been the agreed jurisdiction of the Court in the case, but then the question of s37(3) of the County Court Act arises. Section 37(3), in combination with s91, justifies judgment being entered in excess of the agreed figure.

58 In relation to evidence to be called, it was stated on behalf of the plaintiffs at the outset that there would be objection to evidence being received from the RSPCA's financial expert, Mr Byrne. However, nothing has been done to replace him. The foreshadowed objection has been ignored.

59 In relation to the FFASoC and the figure sought in the Prayer for Relief, after the initial figure of $7.83m had been put, it was thought proper to revert to the figure of $2.46m, but also to give notice that the claim, on the basis of the calculation of Mr Tol, was $7.83m. It was made clear that evidence would be led to that effect. Mr Langslow then made it clear to me that it was the $7.83m figure that was being sought, plus aggravated and exemplary damages. In order for the principal sum for economic loss to be obtained, it would be necessary to apply s37(3) of the County Court Act and for judgment to be allowed for a figure in excess of the agreed $2.46m. If it is found on judgment that their loss exceeds the figure of $2.46m, the plaintiffs can recover any excess. That was what was set out in the letter of the plaintiffs' solicitors to the RSPCA's solicitors.

60 In relation to the element of surprise, the RSPCA was always trying to run the case on the basis that these were not stud cattle, but were commercial cattle with a lower value. It has been established that they are stud cattle. This causes the matter to be viewed in a different light. The ambitions of the plaintiffs in relation to the artificial insemination business have been thwarted.

61 It is conceded that exemplary damages should be pleaded. There is nothing in the County Court Rules which indicate that a claim for aggravated damages should be pleaded. Whilst such damages can be awarded without specific pleading, it was thought better to alert the RSPCA to the fact that such were being claimed, and hence the reference to them in the FFASoC.

62 That this should be is reinforced if regard is had to the way in which the plaintiffs have been affected by the proceedings. The matter dates back to 2003, and to a lengthy, unsuccessful prosecution of the plaintiffs by the RSPCA in 2005. Subsequently, because of various problems with lawyers and the like, the matter was not rejuvenated for financial reasons, until the plaintiffs consulted their present solicitor.

63 The plaintiff Holdsworth always asserted that the cattle were stud cattle. Given the history of the matter, calculations did not proceed on that basis, although it is now sought that this did occur. However, the plaintiff Holdsworth has always contended that the animals were stud cattle.

64 In relation to aggravated and exemplary damages, the case has been a huge strain on the plaintiffs and the RSPCA has made it difficult at all times. Reference is made to the problems with obtaining discovery of important documents. When the documents were discovered during the conduct of the hearing, material came to light which caused the RSPCA's witness, Mr Apostolidis, to indicate that, had he known of the letter of Nicholls, he might have taken a different approach in relation to his duties. The situation is quite similar to that in Wolters. In that case, both exemplary and aggravated damages were awarded.

65 In relation to the RSPCA's assertion that aggravated damages are not available in negligence cases, reference is made to the decision of the Court of Appeal in Carter & Anor v Walker & Anor [2010] VSCA 340. That is a case concerning the behaviour of certain police officers, and in that and similar cases exemplary and aggravated damages were awarded. In relation to the suffering of the present plaintiffs, aggravated damages can and should be awarded.

66 In answer to a question of mine as to the argument that the amendments in reality included a personal injuries claim which was subject to the provisions of the Wrongs Act, Mr Langslow agreed that it was a claim for personal injury, but also for injury associated as a result of the financial burden that has been placed upon the plaintiffs over the years. The plaintiffs should be entitled to recover aggravated damages for the financial effects other than those relating to the loss of the herd, even if not for personal injury.

67 In relation to exemplary damages, perhaps the proposed amendments should have been pleaded at an earlier time, but they only crystallised later. A claim cannot be made without supporting evidence, and it was only when the cross-examination of Dr Irvine was conducted that the matter became sufficiently crystallised so as to be able to say that a claim for exemplary damages was justified. This occurred in the defence case and not long before the conclusion of it. It is something that was determined in the plaintiffs' favour. There is no need for this matter, or for the question of the vicarious responsibility of the RSPCA, to be litigated again. Findings have already been made. The question now is whether the findings of fact justify an award of exemplary damages. The plaintiffs say that such damages should be awarded in order to send a reprimand of significant effect to the RSPCA in relation to the behaviour of its officers. It is a similar situation to that which relates to police officers.

68 The RSPCA agreed that it was appropriate for the Court to deal with the question of liability and then consider the question of damages. Effectively, now it does not want to honour that agreement. There does not have to be re-litigation. The findings have been made, and now only the question of damages remains. The question of further amendments has been raised several times at mentions since the judgment on liability. The RSPCA has had ample time to understand the essentials of the amendments that are being sought. Since the finding of liability, indulgences have been granted to the RSPCA in respect of adjournments. The RSPCA has had plenty of notice as to the position of the plaintiffs. The question of exemplary damages was first raised on day 19 - see T1549. There was reference to the fact that Nicholls had demonstrated a tendency to behave in an aggressive, angry fashion. It was pointed out that this went to the issue of exemplary damages. At that stage, reference was made to the decision in Wolters. At T1551, there was a further reference to additional damages that might be ordered. That counsel for the RSPCA was well aware of this is evident from what was said at T1558.

69 It is true that the Further Amended Statement of Claim did not contain any reference to aggravated and exemplary damages. At that time, significant evidence on which to base a proper claim was needed. This came subsequently, and after the division of the case. After the judgment on liability, notice was given quickly of the proposed amendments. The RSPCA is not taken by surprise. The basis for proposed additional damages is set out in greater detail than may be needed. The RSPCA is not taken by surprise, and justice can be done to the plaintiffs. Further, the RSPCA failed to make proper discovery in a timely fashion. Reference is again made to the letter of which Mr Apostolidis was ignorant.

70 The RSPCA should not get a benefit from its failure to comply with the requirements of full discovery and its failure to properly answer the subpoena in this regard. It should not benefit from the obstruction and delay which occurred. Had proper discovery been made, the pleadings could have been put in order. From the outset of the trial, the plaintiffs were seeking evidence to justify a claim of this sort, including that from Ms Young, a witness whose evidence was curtailed by order of the Court.

71 If claims for aggravating and exemplary damages cannot be justified, damages of that kind will not be awarded, but the plaintiffs should not be shut out from seeking them. The case has a long and peculiar history and has been hard fought. Neither side has been prepared to yield. The proposed amendments should be allowed.

72 I permitted Mr Christie to make a couple of brief points in response. As is evident from what is shown above, the submissions in this regard, like the case itself, have had something of a chequered history. The points which he wished to make can be summarised as follows.

73 In relation to discovery, all relevant documents were in the possession of the plaintiffs before they made their last amendment on day 19 of hearing. Secondly, in relation to aggravated damages, Callinan J stated that a claim for aggravated damages should be properly pleaded. In relation to the case of Carter, that was a case involving assault and battery, where exemplary and aggravated damages might be obtained, and not a case based on negligence. Next, the plaintiffs effectively say that the evidence which enabled them to plead exemplary damages arose from the cross-examination of Dr Irvine, and not before then. However, as has been set out in the written submissions, no other explanation supported by affidavit has been provided in relation to the delay in making the current application. In fact, as is evident from the transcript, the issue of exemplary damages was contemplated by the plaintiffs during the trial and well before Dr Irvine gave evidence. In any event, the evidence of Dr Irvine does not support the majority of the proposed amendments. Even if the claims now made arose from Dr Irvine's evidence, the plaintiffs should have made an application for amendment shortly thereafter or before Dr Irvine returned to New Zealand. Finally, the RSPCA continues to contend that the cattle were commercial cattle, not stud cattle. There has been no definite finding to the contrary and the RSPCA have not had the opportunity to lead evidence in relation to this. In fact, the plaintiffs have always run the case on the basis that the cattle are stud cattle. Accordingly, there is nothing new that comes out of the evidence or the judgment that supports the increase in the claim. When the damages sought were $2.46m, that was on the basis of the animals being stud cattle.

74 I prefer the arguments advanced by Mr Christie. I am of the opinion that the plaintiffs' application for leave to file and serve a FFASoC should fail. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance. For the sake of convenience, I shall deal, firstly, with the proposed amendments essentially relating to aggravated and exemplary damages.

(i) The plaintiffs had ample opportunity, both before the actual trial commenced and during its conduct, to make it clear that aggravated and exemplary damages would be sought. The Writ was originally issued on 1 August 2003. There is no reference to either aggravated and exemplary damages in either the body of the Statement of Claim or the Prayer for Relief. What is claimed is damages, the amount or type of which not being specified; interest; costs and, the frequently seen terminology, such further order or other relief as the Court deems fit.

On 28 July 2011 the plaintiffs' solicitors filed a Summons seeking leave to amend the Statement of Claim. This was opposed by the RSPCA. The contested application was heard by me on 21 October 2011. Each side spoke to quite detailed written submissions and referred to a number of authorities. Thus, it was a fully contested application necessitating the reservation of my decision. A written ruling was handed down on 4 November 2011. In it, I disallowed certain proposed amendments which raised essentially a new cause of action based on new facts. However, I was asked to make a general ruling in relation to other proposed amendments of a particular type, the final version not being before me. This I was prepared to do, indicating that I was of the view that certain other proposed amendments, whilst introducing new causes of action, arose out of the same facts or substantially the same facts as the claims already pleaded. Reference was made to the decision in Agtrack (NT) Pty Ltd v Hatfield 7 VR 63. Accordingly, whilst reserving leave to the RSPCA to make further submissions after the proposed Amended Statement of Claim was seen in its final form, I was prepared to allow amendments referring to causes of actions such as bailment, trespass, detinue and conversion on the basis that they arose out of the same factual basis. No such further submissions were received.

However, I specifically referred to the question of damages. A question of the jurisdictional limit had arisen as, in the proposed amendments, damages had, for the first time, been quantified in the Prayer for Relief. Initially they were so quantified at a figure in excess of $2.6m. When the final version of the Amended Statement of Claim was received, this figure had been reduced to $2.46m - the figure currently being sought in the Prayer for Relief. I declined to rule in relation to damages and the jurisdictional limit.

In neither the version of the Amended Statement of Claim that was before me, nor in the ultimate Amended Statement of Claim, are aggravated and exemplary damages sought. I might say that Further and Better Particulars in the Further Amended Statement of Claim were supplied on 20 February 2012. There is no reference to aggravated and exemplary damages in those Further and Better Particulars.

We then come to the Further Amended Statement of Claim. Leave to file and serve this document was given on 25 March 2014, the 21st day of hearing. Again, this was a contested issue and detailed submissions had been made. There is no argument but that the issue of exemplary damages had been raised and discussed briefly on 20 March. Despite what had been raised in discussion some four days previously, in the Further Amended Statement of Claim again neither aggravated and exemplary damages were sought in the Prayer for Relief. The items claimed continued to be $2.46m by way of damages, interest and costs. There is reference to "Such further order or relief as the Court deems fit", but no reference to aggravated and exemplary damages. Nor is there any specific reference as such to these items in the body of the Further Amended Statement of Claim. There is clearly reference to the behavioural pattern of Nicholls and the alleged negligence of the RSPCA in not removing his authority to act or in failing to supervise him in various regards. Indeed, the argument in relation to the application to file and serve a Further Amended Statement of Claim followed a ruling of mine in relation to tendency evidence given on Monday 24 March 2014. Thus, certain aspects of Nicholls' behaviour could be described as being front and centre at the time that the proposed Further Amended Statement of Claim was being discussed. However, the proposed Further Amended Statement of Claim was not altered in any way and the plaintiffs continued to make no reference to aggravated and exemplary damages or to seek same.

I would point out that all this occurred before the division of the case. Indeed, following my Ruling in relation to the Further Amended Statement of Claim, the next witness was Mr Tol, a financial expert called by the plaintiffs. Mr Tol's evidence continued until well into the afternoon of 26 March 2014.

The next witness was Mr Henderson, another financial expert called by the plaintiffs. His evidence went a considerable way into 27 March 2014, being the 23rd day of hearing. His evidence was followed by that of Mr Sutherland, another witness called by the plaintiffs, and one whose evidence seemed to me principally to relate to the issue of damages. On 28 March 2014, being the 24th day of hearing, I raised the issue as to whether this case might not be one where liability should be determined first and damages second. Evidence continued. On 4 April 2014, the plaintiffs called another witness as to damages, namely Mr McGuckian.

The next day of hearing was the following Monday, 7 April 2014, being the 29th day. At that stage, Mr Tol had returned to the Court and was going to be recalled in relation to yet another calculation based on a different number of animals. It was then that Mr Langslow, on behalf of the plaintiffs, stated that a recalculation might have to be made after a finding. Before Mr Tol could be recalled, there was a discussion as to the manner in which the case should proceed - see T2365 and following pages. It was suggested by Mr Scanlon for the RSPCA that the damages evidence should be left to another time after rulings had been given in relation to liability. Mr Langslow said that he tendered to be "in serious agreement" with that proposition, given the confusion that had resulted from the uncertainty in relation to the number of animals. Accordingly, the evidence in relation to liability continued and Mr Tol, who had returned to the Court, was sent away.

By this stage, we were some 13 calendar days and nine sitting days after my Ruling in relation to the Further Amended Statement of Claim. It was even longer since the argument concerning whether leave to file and serve that document should be granted. Indeed, the original draft of the Further Amended Statement of Claim is dated 19 March 2014. In all that time, and despite a reference to exemplary damages on 20 March 2014, neither aggravated nor exemplary damages had specifically been claimed. There had been at least four variations of the Statement of Claim - the original, at least two in relation to the Amended Statement of Claim and at least one Further Amended Statement of Claim. The issuing dates of the documents are spread over almost 11 years. Even if one took out the period for which the action seems to have lain dormant, there have been some 3½ years since it was reactivated. The plaintiffs have had a very large amount of time and numerous opportunities in relation to spelling out the fact that they were seeking aggravated and exemplary damages. That simply has not been done. Leave to do it is now sought at a time and in a manner which will necessitate the recalling of some witnesses and the possible recalling of additional witnesses.

(ii) What I have just said, apart from its general application, is relevant specifically to submissions made by Mr Christie concerning what was said in AON in relation to a party having had "sufficient opportunity" in relation to pleadings and whether it may become too late for further amendments. As pointed out by Mr Christie, it was stated by Mr Scanlon on day 18 of the trial, and following a reference by Mr Langslow to exemplary damages, that there was no basis for such a claim and that there were certain requirements in terms of pleadings. On the following day, whilst again denying that there was any basis for a claim for exemplary damages, he stated that he had not seen a document referring to exemplary damages. He reserved his position until he did see such document, at which time he asked that he be heard further in relation to the issue. As stated, no such document eventuated. Mr Christie also pointed out that, when I asked Mr Langslow if there was anything which he wished to add in relation to damages, he did not say anything at that stage in relation to exemplary damages and the like. There was then clearly the opportunity for the plaintiffs to put before the Court a claim for additional damages, whether they be aggravated or exemplary. I did not rule upon the issue of the Further Amended Statement of Claim until the 21st day of hearing. Nothing had occurred in the meantime by way of an alteration to the proposed Further Amended Statement of Claim pursuant to which aggravated and exemplary damages were sought. There seems to me to be force in the argument of Mr Christie. The concept of sufficient opportunity is one to which I shall return.

(iii) There is also force in the submissions of Mr Christie that to allow the amendments concerning aggravated and exemplary damages at this stage would conflict with the objects and provisions of the Civil Procedure Act. Section 1 of that Act spells out that its overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. In addition, the plaintiffs have not minimised delay and acted promptly in relation to the matters now being discussed. If leave were granted, key witnesses would have to be recalled. Apart from anyone else, the RSPCA has indicated that it would recall Nicholls and this is completely understandable. Had the issue of exemplary damages, in particular, been on the table prior to Nicholls giving evidence, the course of that evidence may well have been different. Whilst issues of his motivation and the like were explored, it seems to me that this was done in the context of negligence, as opposed to exemplary damages. Now it is foreshadowed that, if the plaintiffs' application is successful, Nicholls and Dr Irvine will both have to give evidence again. Had exemplary damages been sought in the Statement of Claim or the Amended Statement of Claim, the recall of Dr Irvine, which is also fully understandable, may have been avoided. This is hardly consistent with the efficient conduct of the business of the Court, the efficient use of resources or the timely determination of the proceeding.

(iv) Mr Langslow directed me to his submissions at T1549 and 1550. It was at this stage that he was seeking leave in respect of the Further Amended Statement of Claim and in relation to tendency. Of course, this was before the division of the case. He was asserting that the RSPCA was not taken by surprise, also pointing out that he had said that the issue of aggressive, angry behaviour and the like went to the issue of damages and to exemplary damages. There seem to me to be two basic flaws in the argument advanced by Mr Langslow. Firstly, the fact of the matter is that, whatever he had foreshadowed, the Further Amended Statement of Claim did not seek aggravated and exemplary damages. Secondly, if, as argued, matters relating to the behaviour of Nicholls and the like were ventilated, so that there is no surprise to the RSPCA, I have in fact already ruled on the question of the motivation of Nicholls. At paragraph 739 of the judgment, I specifically found that the evidence did not allow me to determine the motivation for his behaviour. This in turn leads to the submission of Mr Christie that the risk of conflicting decisions could arise, and conflicting decisions within the same case at that. If the issue of Nicholls' behaviour and motivation has been raised to such an extent that the RSPCA should not be surprised by a claim for aggravated and exemplary damages in relation to it, my Ruling has arguably disposed of it. To have what is in effect another hearing on the same issue and within the same case could, arguably, lead to a finding which does not sit comfortably with the earlier observations and conclusion. It is to be remembered that I found not only that the evidence did not permit a conclusion in relation to motivation, but also that it did not permit me to find that negligence on the part of the RSPCA in its employment of Nicholls was causative of the loss and damage sustained - see paragraphs 739 and 740 of the judgment.

(v) It seems clear to me that, in paragraph 30(d), paragraph 31 and paragraph 32 of the proposed FFASoC, the plaintiffs are seeking damages in respect of personal injury. Particulars of what is described as a very significant and permanent psychiatric injury suffered by each plaintiff are set out in paragraph 30(d). Paragraph 31 contains the pleading that, by reason of the matters set out in paragraph 30, the plaintiffs claim damages and aggravated damages "above and beyond their economic loss". In paragraph 32, exemplary damages are sought and there is references to paragraphs 30 and 31.

Section 28LE of the Wrongs Act states as follows:

"A person is not entitled to recover damages for non-economic loss in any proceeding in a Court in respect of an injury to a person caused by the fault of another person unless the person has suffered significant injury."

"Significant injury" is defined in s28LF and, importantly, an injury of this type would require a determination made by a Medical Panel. Section 28LC(2) sets out certain exceptions to which Part VBA of the Wrongs Act does not apply, but the present situation would not seem to fall within any of those exceptions. Indeed, s28LC(4) states:

"This Part extends to a claim for damages for non-economic loss even if the claim is founded on breach of contract or any other cause of action."

Further, the established law would seem to be that the requirements of s28LF need to be satisfied before the commencement of a proceeding. In Hynes v Hynes [2007] VSCA 7, Ashley JA stated that the obtaining of a relevant assessment in according with Part V of the Wrongs Act will ordinarily precede the commencement of a proceeding. Various authorities were considered by Williams J in Multari v Amaca Pty Ltd [2014] VSC 277. In that case, her Honour also referred to the decision in Colquhoun v Capital Radiology Pty Ltd [2013] VSCA 58 in which the Court of Appeal stated that:

"A person whose degree of impairment does not satisfy the threshold level has no right to sue for non-economic loss ... unless that (eligibility) condition is satisfied, there is no right to sue."

In Multari, her Honour made no specific determination in relation to the effect of s28LE of the Wrongs Act upon the commencement of the proceeding, as that had not been raised.

Thus, it seems to me that, whatever the situation might otherwise be, in the present case there is a very real potential obstacle in the path of the claim for damages based upon a personal injury. There is no suggestion that there has been compliance with ss28LE and 28LF of the Wrongs Act. The RSPCA has raised the issue. There is merit in its argument and it could not be said that it produced a particularly vigorous response on behalf of the plaintiffs - see T3621.

(vi) Mr Langslow virtually conceded that the claim for exemplary damages was made late. At T3621, he stated that:

"So far as exemplary damages are concerned ... it perhaps ought to have been pleaded at an earlier time ..."

The excuse or explanation which he offered in this regard was as follows:

"It wasn't really until the cross-examination of Dr Irvine that the matter was sufficiently crystallised to be able to say a claim for exemplary damages is justified, and that was in the defence case and not long before the defence case concluded ..."

I have a couple of observations to make about this. Firstly, Mr Langslow is in part quite right. He is correct in saying that the cross-examination of Dr Irvine was in the RSPCA's case. However, I would not agree with the proposition that the evidence of Dr Irvine, which apparently crystallised the thinking of the plaintiffs in relation to exemplary damages, was not long before the case for the RSPCA closed. I am certainly not saying that Mr Langslow was trying to mislead me in this regard. Nothing could be further from the truth. He was, as one might expect, impeccable in the firm but fair manner in which he conducted the plaintiffs' case. However, in the heat of battle, his recollection in relation to the timing of the evidence of Dr Irvine is not entirely accurate. Dr Irvine gave evidence and was cross-examined on 3 and 4 April, being the 27th and 28th days of hearing. Oral evidence in fact concluded on 5 May 2014, being the 37th day of hearing, with submissions in relation to the relevant issues of liability and the number of cows commencing on the following day. Indeed, my recollection is that the evidence of Dr Irvine concluded in the morning of 4 April. Thus, there were some 9½ sitting days and 31 calendar days between the conclusion of Dr Irvine's evidence and the end of the oral evidence. Even allowing for the fact that Easter intervened, there was ample opportunity for the plaintiffs to have at least sought a further amendment so as to claim aggravated and exemplary damages once the situation had "crystallised" following the cross-examination of Dr Irvine.

There are two further aspects of this. Firstly, Dr Irvine, having come from New Zealand, gave evidence before the key witness, Nicholls. Thus, by the time Nicholls was cross-examined, those in the plaintiffs' camp were aware that a claim for exemplary damages was, in their opinion, justified. The cross-examination of Nicholls was lengthy and dealt with issues such as his mental condition, his attitude towards the plaintiffs and the like. He was re-examined. At the end of his evidence, he was excused further attendance - see T798. There was no thought in my mind that Nicholls might be returning. He had been thoroughly examined, cross-examined and re-examined on a range of issues and his further attendance had been excused. Secondly, it is also important to note that the evidence of Dr Irvine was taken prior to the splitting of the case. In other words, when Dr Irvine was cross-examined, the issue of damages was "on the table". Indeed, the witness following Dr Irvine was Mr McGuckian, a financial expert giving evidence relating to damages. There was no attempt to seek a further amendment in relation to aggravated and exemplary damages during all of this time and, indeed, no mention of same during the discussions concerning the splitting of the case.

In summary, whilst the existence of a justifiable claim for exemplary damages may have "crystallised" in the minds of those advising the plaintiffs at the time of the cross-examination of Dr Irvine, nothing was done about it and it was not even mentioned in the discussions surrounding the splitting of the case.

(vii) I might add that I am not persuaded that the argument that the plaintiffs had to wait until crystallisation before seeking to claim additional damages is a valid one. This case has been around a long time and it is quite apparent from parts of the cross-examination of witnesses that many issues were ventilated in the lengthy Magistrates' Court hearing in 2005. There is no reason why aggravated and exemplary damages could not have been at least sought at a much earlier stage. What was asserted by the plaintiffs, and particularly Holdsworth, in relation to the conduct of Nicholls in relation to the apparently hasty slaughtering, without, at least, appropriate warning, of cattle that did not need to be slaughtered, and of failing to keep important appointments and the like, has long been known. If a claim for aggravated and exemplary damages was being even remotely considered, there was every opportunity to plead it. Such a claim could always be abandoned if it did not appear to be justified. There was no need to wait for the matter to be sufficiently crystallised during the conduct of the trial or by the handing down of the liability judgment.

Mr Christie used the expression, "a free look". I tend to agree with his suggestion that a plaintiff should not be permitted to sit back, watch the evidence unfold, assess the witnesses, note or have access to (by way of a judgment) the Court's assessment of the witnesses and then make a claim for aggravated and exemplary damages. Rule 13.07(3) of the County Court Civil Procedure Rules states that a claim for exemplary damages shall be specifically pleaded together with the facts on which the party so pleading relies. Clearly a component of the thinking behind this Rule would be to give the opposing party notice of what is claimed and enable it to adjust its attitude accordingly. Waiting for crystallisation does not sit well with this.

(viii) When the question of leave to file and serve a Further Amended Statement of Claim was first being ventilated, and before any relevant document in this regard had been put before me, Mr Langslow stated that the amendment was sought so as "to reflect the real issues in the case" - see T1466. In particular, he referred to the question of whether or not Nicholls had a tendency to behave in an impetuous and highhanded fashion, this also being relevant to an argument in relation to the plaintiffs seeking to adduce tendency evidence. Mr Langslow was emphasising that it was no surprise to the RSPCA that the demeanour and behaviour of Nicholls would be attacked - see T1468. At some stage during this discussion, the proposed Further Amended Statement of Claim or a draft thereof was put before me. If ever there was a last opportunity to put the question of exemplary damages squarely in issue, this was it. However, no such amendment was sought, either in the Further Amended Statement of Claim or generally. This was well before the splitting of the case. However, no pleading of an entitlement to anything in the nature of exemplary damages was sought to be added. As far as I knew (and presumably as far as the RSPCA knew), argument and evidence relating to Nicholls' demeanour received thereafter concerned not possible exemplary damages, but whether there was negligence on the part of the RSPCA in continuing to employ him, failing to supervise him and the like. It sat alongside the application in relation to the admission of tendency evidence, effectively being made at the same time. Indeed, when I raised with Mr Langslow the question of whether the proposed Further Amended Statement of Claim related to a new cause of action or new particulars, he stated that it did not. He said:

"...it's under the general heading of negligence on the part of the RSPCA." - see T1466

(ix) Mr Langslow has argued that there is no specific requirement to plead aggravated damages. Both the distinction between aggravated and exemplary damages and whether a claim for aggravated damages requires pleading were discussed in Gray. In relation to the distinction between the two, Kirby J gave the following helpful explanation:

"Aggravated damages are given for conduct which shocks the plaintiff and hurts his or her feelings. Exemplary damages are awarded for conduct which shocks the tribunal of fact, representing the community. Obviously the two affronts will often coincide and overlap. But in awarding an additional element in the plaintiff's compensatory damages as aggravated damages for such affront, the attention of the decision-making must be concentrated upon the impact which the wrong had on the plaintiff and the particular injury done to his or her feelings."

Kirby J went on to say that in England and Canada there was authority for the proposition that exemplary damages, and, by analogy, aggravated damages do not need to be pleaded. However, in Australia, a stricter approach has been taken to the pleading of aggravated damages. Kirby J pointed out how, in the absence of a pleaded claim for aggravated damages, a case might be conducted in a different fashion.

Callinan J was, if anything, even more explicit in his opinion as to whether aggravated damages should be pleaded. He stated as follows:

"A claim for these (aggravated damages) was neither pleaded nor pursued in the Courts below. Such a claim requires a specific pleading, particulars and evidence directed to it."

I do not agree with Mr Langslow. I am of the opinion that any claim for aggravated damages should have been pleaded, with particulars, at the earliest possible opportunity. That earliest possibility was not after something in the order of 45 sitting days.

(x) In this regard, I would point out that, as stated several times and as said by Kirby J, aggravated damages are given for conduct which shocks a plaintiff and hurts his or her feelings. They are compensatory damages. In the present situation, the case was split after both plaintiffs had given lengthy evidence, including extensive cross-examination. In other words, at the time when each plaintiff was in the witness box over a number of days (by my reckoning, the plaintiff, Holdsworth, was in the witness box for six days and the plaintiff, Ellison, for five), the question of damages was still very much in issue. It had not been separated from the issue of liability. Indeed, there was quite lengthy and detailed cross-examination on questions relating to damages. However, basically it related to such issues as plans or projects related to artificial insemination and the like. There was essentially no cross-examination concerning personal injury or psychiatric harm suffered by the plaintiffs. This is hardly surprising. No claim for aggravated damages, with supported particulars, was on foot. However, the issue of damages was still well and truly alive for determination.

Mr Langslow has made it clear that, if leave is granted, each plaintiff will have to be recalled. This seems to me to be inefficient, wasteful of time and costs and unfair to the RSPCA. Had the matter been properly pleaded, the RSPCA's cross-examination may well have been different.

(xi) In summary, I am of the opinion that, as with exemplary damages, the claim for aggravated damages should have been pleaded and particularised. Whilst the plaintiffs had concluded their evidence by the time that there was the argument and ruling in relation to the Further Amended Statement of Claim, even then there was no pleading in it relating to aggravated damages. Whilst such a pleading should, in all fairness, have been at least foreshadowed or spelt out in draft form prior to the plaintiffs giving evidence and being cross-examined, even if such pleading had been included in the Further Amended Statement of Claim, perhaps the situation could have been salvaged, at least to a limited extent. However, that did not occur. Of course, the situation is even clearer in relation to the claim for exemplary damages, dealing as they do with the conduct of a defendant rather than the hurt suffered by a plaintiff. Even then, as observed by Kirby J, there is some overlapping.

(xii) There also seems to me to be some force in the submission of Mr Christie that, in general terms, there is inadequate material explaining why the application for leave to file and serve the FFASoC has been made at this very late stage. Some arguments have been advanced, but there are, for example, no supporting affidavits. This is true of the application both insofar as it relates to aggravated and exemplary damages and as to the increase in quantum. The plaintiffs are seeking an indulgence from the Court and one which was highly likely to be opposed. There is something of a dearth of supporting material.

(xiii) For the reasons set out above, I am not minded to grant to the plaintiffs leave to file and serve those portions of the FFASoC which concern aggravated and exemplary damages. I turn now to those parts of the document which relate to the increased amount sought. As is evident, in my opinion the plaintiffs also fail in this regard and I shall now set out further reasons as to why this is so.

(xiv) I need not repeat the above observations concerning the undesirability of any significant amendments at such a late stage in the proceedings. I would refer to what was said by Vickery J in Namberry Craft and his summary of the principles found in AON. I have already set out the arguments of Mr Christie in relation to such matters. I prefer and accept them.

(xv) The proposed amendments relating to quantum now sought by the plaintiffs could certainly not be described as insignificant. Whilst the amount claimed in the Prayer for Relief has remained constant at $2.46m, the plaintiffs seek to introduce particulars which they say would enable them to claim and receive $7.83m. That is more than treble the amount claimed pursuant to the Further Amended Statement of Claim. There is no indication that any notice of this was given until comparatively recently and certainly after the 44 days of the trial. No indication of it was given in the Further Amended Statement of Claim concerning which I ruled on 25 March 2014. The quantum remained identical to that which had appeared in the Amended Statement of Claim in excess of two years earlier.

(xvi) On 25 February 2014, I gave a ruling which centred on the operation of the decision in Donelan and upon the amount of damages being sought. Firstly, I allowed an amendment of the Prayer for Relief in the original Statement of Claim of 29 July 2004, so that what was being sought was $200,000, being the then jurisdictional limit, as opposed to the word "Damages". I referred to s39(2) of the County Court Act, in addition to s37(3). In giving my Ruling, I specifically referred to a couple of matters which I was bearing in mind. One was a matter mentioned more than once by Mr Scanlon, to the effect that an agreement had been reached, or the RSPCA had consented to, an upper limit of damages which was beyond the jurisdictional limit. That upper limit was $2.46m - see, for example, T26. He stated:

"If we can consent then we've certainly consented to $2.46m..."

This also seemed to have been the view of Mr Langslow - see T32, where he said:

"...there was a consent by the defendant to an increase in the quantum to the amount that was then claimed, namely, $2,466,000 in accordance with the advice that we then had as to quantum...There is a consent in writing..."

Mr Berman, when conducting part of the argument on behalf of the plaintiffs, said the following:

"No one has been caught by surprise in uplifting the jurisdiction of the Court after I think the amendments at 2.4 of $1m (sic) and that was done by consent of the parties, and we have a letter setting out those consents."

At T63, I put the following proposition to Mr Scanlon, who had, in essence, been saying that the RSPCA wished to proceed and fight the case on the basis of the quantum sought being $2.46m, but feared that there was no jurisdiction so to do:

"...the fact of the matter is that you arrived to fight a case of two point something million."

"Yes, that's right, and we are happy to do so if we are able to, but I don't think we are. But that, of course, is ultimately a matter for Your Honour."

"...subsequently the plaintiffs sought from the defendant consent...to the Court hearing the plaintiffs' claim for damages in the amount of 2.4 plus interest and then again the defendant purported pursuant to 37(2)(a) of the Act agreed to that course."

The situation was underlined by Mr Scanlon at T75 as follows:

"What we are putting to you Your Honour is inconsistent with the defendants' wishes. I want to make this perfectly clear, that we want it to proceed, but it can't proceed without jurisdiction. I just want to repeat that again."

(xvii) I have gone through this in some detail in order to emphasise this comparatively simple proposition. The RSPCA had consented to the plaintiffs seeking damages up to the figure of $2.46m, even though it was, prima facie, beyond the jurisdictional limit. It was an agreement recognised by the plaintiffs. It was an agreement to which the RSPCA adhered, but subsequently had doubts as to whether, even allowing for the operation of the decision in Donelan and the interpretation of the relevant provisions of the Act, jurisdiction in fact existed to entertain such a claim. In essence, I ruled that there was such jurisdiction. The matter proceeded accordingly.

(xviii) The second matter to be borne in mind in relation to the ruling of 25 February is this. At the time of that ruling, I had been made aware that the report from one of the plaintiffs' financial experts, Mr Tol, put a scenario where the plaintiffs' losses exceeded $6.1m. This was a long way above other estimates that had been given. As a result, my Ruling included the following:

"But, in my view, the case can proceed upon the basis which the parties thought it was going to proceed on - namely, a contest where the damages sought by the plaintiffs were $2,466,287.31. That leaves to one side the question of Mr Tol and any further increase.

There has been no formal application to amend the statement of claim to seek any amount above the specific amount to which I have just referred, and I am not sure - I would have to hear argument about whether the quantum of the claim, at this late stage, can effectively be doubled or more than doubled. If there is no opposition to it, that is another matter. As things stand, the matter can proceed."

I then went on to say that, if there was a possibility of damages in excess of $200,000 being recovered, I would hear arguments again about the operation of the decision in Donelan. I then concluded as follows:

"But it seems to me that the matter can proceed on the basis that it is open to the plaintiff to recover a sum in excess of the statutory limit, putting it at its simplest."

Mr Tol in fact gave evidence, and was going to return to give further evidence when the case was split. However, the amount sought by the plaintiffs was not amended. In the Further Amended Statement of Claim, not only did the amount sought in the Prayer for Relief remain at $2.46m, but, in paragraph 24, the Particulars of Loss and Damage were set out. The components of the loss were shown, and they added up to $2.46m. Now we have a situation with the FFASoC where, whilst the Prayer for Relief still indicates that the damages claimed are $2.46m, the Particulars of Loss and Damage which are set out total $7.83m. The plaintiffs have indicated that they are in fact seeking such a figure.

In my Ruling of 25 February 2014, I pointed out, as set out above, that there had been no formal application to amend the Statement of Claim so as to seek any amount above the agreed amount. I clearly had doubts as to "whether the quantum of the claim, at this late stage, can effectively be doubled or more than doubled". I stated that, if there was no opposition to such course of action, that would be another matter. There is indeed opposition to such an amendment. If I had concerns because it was a "late stage" on 25 February 2014 - day two of the hearing and before any evidence had been heard - we are now at a much, much later stage. Further, it was argued by Mr Christie that, in my Ruling of 25 February, I pointed to the fact that an agreement having been reached meant that the RSPCA was not being taken by surprise. Mr Christie stated that this is precisely the position in which the RSPCA now finds itself.

In summary, an analysis of the conduct of the case to date and the basis on which it was fought leads me to the conclusion that, in relation to the amendments dealing with increased quantum, leave to file and serve the FFASoC should be refused.

(xix) I am reinforced in that conclusion by the following further considerations, which I shall not set out in great detail and which are at least in part based upon the conduct set out above:

• As argued by Mr Christie, such amendment is unfair to the RSPCA and contrary to the spirit of the waiver agreement which had been reached. The waiver of the jurisdictional limit was agreed in the context of an understanding that the damages sought were in the order of $2.46m. The amendments have the effect of tripling the amount claimed.

• If the amendments in relation to greatly increased quantum are allowed, the RSPCA, in all probability, will have to obtain different and additional evidence. It cannot go back to its expert, Mr John Sykes, who reported to it, but who unfortunately died prior to the trial of the action. The late Mr Sykes reported on the basis of the plaintiffs' claiming the slaughter and loss of 311 animals. One of the curiosities of the present situation is that, in my Judgment on liability, I allowed 131 animals of the 311 claimed. However, the quantum of damages sought increased. Be that as it may, Mr Sykes is sadly no longer available to have put to him particulars of how the plaintiffs now claim this increased amount. The RSPCA has another expert witness, namely Mr Ian Byrne, and doubtless particulars of the extent of quantum now claimed would have to be put to him. I leave to one side the issue of whether he is a suitably qualified expert witness. However it is viewed, a re-pleading of quantum to this extent would surely require additional expert evidence.

• I also agree with Mr Christie that there are situations where it is just too late for further amendments. As was said by the High Court in AON, much may depend upon the point the litigation has reached relative to the trial when the application to amend is made. Even allowing for the splitting of the case, it is difficult to imagine that extensive amendments of this kind could have been made much later.

• Further, I also agree that the plaintiffs have had ample opportunity to plead their case. It was not until the 28th day of hearing that the case was split. There had already been a Statement of Claim, an Amended Statement of Claim and, a few days before the split, a Further Amended Statement of Claim. Taking just the last-mentioned document, the Particulars of Loss and Damage contained in it add up to the figure of $2.46m. The report of Mr Tol in which the figures in the vicinity of $6m are quoted is dated 13 February 2014. That is before the trial began. However, no attempt was made to amend the existing pleadings by setting out new Particulars of Loss and Damage. Indeed, when the Further Amended Statement of Claim was subsequently before the Court, the Particulars of Loss and Damage consisted of components which, as stated, added up to $2.46m. At that time, not only must the plaintiffs have been aware of the substantially increased amount contained in Mr Tol's report, but must have been aware that he was going to give evidence. Indeed, his evidence followed immediately on from the ruling in relation to the Further Amended Statement of Claim. However, no attempt to increase the quantum of the claim was made.

• Mr Langslow advanced an argument that seemed to be to the effect that the dramatic increase in quantum could not have been pleaded earlier because there had not been a finding that the cattle in question were stud, rather than commercial, cattle. I am not persuaded by such an argument. The plaintiffs put their case on the basis that these were high-quality animals. Paragraph 1(b) of the Amended Statement of Claim states that the plaintiffs had at all times since about 1996, been "carrying on the business of breeding and selling high-quality Murray-Grey stud cattle". That allegation was repeated in the equivalent paragraph in the Further Amended Statement of Claim. In the Amended Statement of Claim, more than half of the damages claimed relate to loss of future income from artificial insemination. That is also repeated in the Further Amended Statement of Claim. The Further and Better Particulars of Amended Statement of Claim provided by the plaintiffs on 20 February 2012, refer to the herd as being comprised of four stud quality bulls and 271 high-quality breeding cows and calves.

In opening the case, Mr Langslow emphasised the difference between these cattle and commercial cattle, also stating that the plaintiffs were desperate to keep their cattle at all costs in drought conditions because they did not want to lose the line that they were developing. He referred to the cattle going to stud sales and the like.

In his valuation report of 13 February 2014, Mr Tol specifically based his assessment on the herd "being a high-quality stud herd with long-established and proven bloodlines". The plaintiffs called a witness, Mr Sutherland, essentially to describe the quality of the herd. In short, the presentation of the plaintiffs' case in relation to damages has long been that these were stud or high-quality cattle and not commercial cattle. To say that for some reason appropriate amendments to Particulars of Loss and Damage in regard to this had to await a ruling or judgment does not seem to me to make sense. Further, whether I gave any analytical or considered ruling on this point in my Judgment on liability is something which I would have to describe as contentious. In any event, this argument is one by which I am not persuaded.

• Bearing in mind the failure to amend the Particulars of Loss and Damage, it was not spelt out with clarity that the plaintiffs, despite the agreement, would actually be seeking an amount over and above the agreed jurisdictional limit of $2.46m. I raised this issue in the context of the proposed evidence of Mr Tol on several occasions - see T87, 114 and 117. However, no clear response was obtained. The fact that Mr Tol put the figure considerably higher than the agreed jurisdictional limit did not automatically mean that the plaintiffs were seeking that amount. That is especially so when the Particulars of Loss and Damage (and the Prayer for Relief) show the agreed figure.

The calling of Mr Tol and the use of his report may well have been interpreted as an attempt to ensure that the maximum agreed amount was awarded. Such impression might well be formed when the Particulars of Loss and Damage were not altered to reflect his estimation, but remained at the agreed amount. I might say that the evidence of Mr Tol, including his cross-examination, could be interpreted as indicating that the plaintiffs were seeking the full amount specified by him as opposed to trying to ensure that they obtained the maximum agreed amount. However, this was not clearly spelt out and, as stated, the failure to amend could be seen as meaning that the agreed maximum amount of damages remained in place.

75 In summary, I have not been persuaded that leave should be given to the plaintiffs to file and serve a FFASoC, either in regard to aggravated and exemplary damages or in relation to the increased Particulars of Loss and Damage. The arguments before me concentrated on only those two issues. It seems to me that most, if not all, of the proposed amendments relate to them. I shall hear the parties as to whether or not this is so and as to whether there are any other aspects of the document that require attention.

76 The plaintiffs are unsuccessful. Leave is not given to them. What is claimed by the plaintiffs remains at $2.46m together with interest and costs. I shall hear the parties as to any ancillary orders that are required.