The erroneous note in Ritchie's
18There is a note in Ritchie's service at [s100.90] which states that interest cannot be awarded under s.100 in relation to claims for damages under s.82 of the Trade Practices Act .
19The case cited in that note is Yolarno Pty Ltd v Transglobal Capital Pty Ltd (No. 4) [2003] NSWSC 1206, a decision of Gzell J.
20In Yolarno , Gzell J dealt briefly with the question of the Court's power to award interest under s.94 of the Supreme Court Act (since repealed).
21His Honour there held that the case of Australian National Airlines Commission v The Commonwealth (1975) 49 ALJR 338 was authority for the proposition that s.94 did not empower the court to award pre-judgment interest on s.82 damages award, and that he was constrained to follow it.
22Meinhardt's position is that this Court, in considering MBL's claim for interest under s.100 of the Civil Procedure Act , should follow the approach adopted by Gzell J in Yolarno when his Honour considered s.94 of the Supreme Court Act .
23In my view and with due respect to what may have been a different express by Gzell J in Yolarno in giving a short ex tempore judgment , that finding is one which I cannot accept.
24It is clear from a reading of Yolarno that the finding of Gzell J as to the operation of s.94 of the Supreme Court Act was based on his Honour's understanding that Australian National Airlines had decided that the section did not confer power on the Supreme Court to award interest on a damages award made under the Trade Practices Act , and he was bound to follow it.
25A reading of Australian National Airlines demonstrates, however, that this case was not authority for that proposition.
26It is not clear from the ex tempore reasons in Yolarno whether, at the time of delivering his ex tempore judgment, Gzell J had before him and read the Australian National Airlines case, or whether instead his Honour was working off a (mistaken) note in a practice service. It is unlikely that his Honour did have the case before him at the time of his judgment.
27I accept that there is, in fact, no finding in Australian National Airlines that s.94 of the Supreme Court Act did not empower the Supreme Court of New South Wales to award interest on a damages award made by the Supreme Court.
28Australian National Airlines was not concerned with the construction and operation of s.94 of the Supreme Court Act , or with the operation of that section in the Supreme Court. It was concerned with something altogether different.
29Australian National Airlines concerned whether s.79 of the Judiciary Act (Cth) operated so as to enable the High Court to use s.94 of the Supreme Court Act to make an award of interest in a case that was before the High Court exercising its original jurisdiction . Mason J (sitting alone) found that s.79 of the Judiciary Act could not operate in that way.
30The plaintiff has helpfully summarised the essential findings in Australian National Airlines by marking up the conclusions.
31The conclusion marked "1" was that the Supreme Court Act conferred power on the Supreme Court to order interest on damages in judgments entered by that court tin proceedings before it. This is not controversial.
32The conclusion marked "2" was that s.79 of the Judiciary Act did not pick up and apply in the High Court a provision which empowered the Supreme Court to make orders and enter judgments in proceedings in that court. This finding concerned the operation of s.79 of the Judiciary Act . This issue does not arise here.
33The conclusion marked "3" was that even if s.79 of the Judiciary Act could operate to pick up and apply s.94 of the Supreme Court Act to proceedings before the High Court exercising its original jurisdiction, it would not assist the applicant in the particular case before the High Court because the proceeding in the High Court was commenced before s.94 of the Supreme Court Act commenced operation. This issue does not arise here.
34The conclusion marked "4" was that even if s.79 of the Judiciary Act could operate and pick up and apply s.94 of the Supreme Court Act to proceedings before the High Court exercising its original jurisdiction, it would be inappropriate for the High Court to exercise that power when the High Court had its own code of procedure prescribed by the statutes and rules of the High Court. This issue does not arise here.
35The conclusion marked "5" was that even if s.79 of the Judiciary Act could operate and pick up and apply s.94 of the Supreme Court Act to proceedings before the High Court exercising its original jurisdiction, the court on the particular facts of that case would not have exercised the discretionary power to award interest in circumstances where the damages claim was made by way of late amendment. This issue does not arise here.
36The conclusion marked "6" was concerned with the power of the High Court to make an award of interest against the Commonwealth , being the first of a number of defendants. This issue does not arise here.
37As is obvious from this recitation of the findings in Australian National Airlines , they were concerned with issues which do not arise in this case, and none of the findings was that s.94 of the Supreme Court Act did not confer power on the Supreme Court to award interest on a damages award made by it under s.82 of the Trade Practices Act .
38That being so, Gzell J was in error in proceeding on the basis that Australian National Airlines was authority for the proposition that s.94 of the Supreme Court Act did not confer power on this Court to award interest on s.82 damages.
39Further and in any event, the decision of Gzell J is erroneous because:
(1) Australian National Airlines was decided prior to the introduction of s.86 into the Trade Practices Act in 1987; and
(2) Gzell J does not have appear to have been taken to, and thus gave no consideration to, the operation of s.86 of the Trade Practices Act or the court of appeal decision in Truss v Brazier .
40As such, even if Australian National Airlines had decided what his Honour thought it had decided, it was not binding on him having regard to the legislative changes that had been made in the intervening period, and the authorities concerning the effect of those changes.
41For the above reasons in my view the basis upon which Gzell J proceeded in Yolarno was incorrect .
42That being so, Yolarno cannot be relied upon by the defendant for a finding that this Court does not have power to award interest on a damages award made under the Trade Practices Act .