National Australia Bank Ltd v Maher [1999] VSCA 189

5. I desire only to add some comments upon the remarks made by Callaway, J.A. in paragraph [36] his reasons. I think it is too late in the day to contend that awards of exemplary damages cannot, or should not, be awarded by judges sitting alone rather than by juries. In this country awards of exemplary damages have been made in respect of causes of action which have been conventionally tried by judges sitting without a jury and by courts where no trial by jury is available (for example: Sanders v. Snell (1997) 73 F.C.R. 569; (1998) 72 A.L.J.R. 1508; Trend Management Ltd. v. Borg (1996) 40 N.S.W.L.R. 500; Private Parking Services (Victoria) Pty. Ltd. & Ors. v. Huggard [1996] Aust.Tort Reports 81-397; Gorski v. Miller (1993) 174 L.S.J.S. 251; Gazzard & Ors. v. Hutchesson & Anor. (1995) Aust. Tort Reports 81-337; Pargiter v. Alexander [1995] TASSC 62; (1995) 5 Tas.R. 158).

8. These are but a few examples of awards of exemplary damages which have been made in this country by judicial officers sitting without juries, and I have chosen them simply to demonstrate that the practice is common throughout Australia. It is a practice which is to be expected as the limits of jurisdiction of, for example, Magistrates' Courts have been progressively increased and as Parliaments of various States have legislated to provide that claims for damages for personal injuries should be tried by judges sitting without juries. As Callaway, J.A. points out, it is not a practice which has been disapproved by the High Court. Notwithstanding that such damages are awarded to "punish" a defendant, for my own part I do not see the investment of the power to award such damages in a judge, as distinct from a jury, as unfairly intruding upon the civil rights or liberties of the defendant. Indeed it has been said, and I think with some justification, that to allow juries to punish defendants with awards of exemplary damages in accordance with the ill-defined and abstract principles upon which judges are required to instruct them, is more likely to lead to injustice than if such damages are awarded by judges sitting alone in accordance with reasons which are examinable (Broome v. Cassell & Co. [1972] UKHL 3; [1972] A.C. 1027 at 1087 per Lord Reid, at 1123 per Lord Diplock, at 1135 per Lord Kilbrandon).

11. For the purposes of this case, it is unnecessary for me to enter upon the debate whether awards of exemplary damages by juries are more likely to infringe the safeguards accorded by the criminal law to an offender than are awards made by judges sitting alone. Whatever view one takes about the matter, I am firmly of the opinion that in this State such awards can be made by both judges alone and juries.

14. I would only add that, in conformity with the views expressed by Batt, J.A., if it had become necessary in this case to consider the award of exemplary damages made by the judge, I, too, would have concluded that it was manifestly excessive.

19. On 28th January 1994 the Full Court delivered reasons for judgment in an earlier appeal brought by the present appellant against the present respondent and her husband. The judgment appealed against had been given by Judge Murdoch in the County Court on 16th December 1992. The Full Court's reasons are reported at [1995] VicRp 23; [1995] 1 V.R. 318. These reasons should be read in conjunction with them, "for many times, Compendia sunt dispendia, and Melius est petere fontes ...": Co.Litt.305b; Gorringe v. Transport Commission (Tas.) [1950] HCA 6; (1950) 80 C.L.R. 357 at 375.

22. The orders of the Full Court were made on 1st February 1994. The appeal was allowed and the whole of Judge Murdoch's judgment was set aside, except paragraph 2, which dealt with costs. Orders were made in conformity with the reasons delivered four days earlier. Paragraphs 9 and 10 of those orders read:

9. There is judgment for the plaintiff against the secondnamed defendant for damages to be assessed.

10.(a) Damages be assessed by Judge Murdoch on a date to be fixed and that within 28 days hereof the plaintiff deliver to the secondnamed defendant full particulars of any damages suffered or sustained by her arising out of the subject matter of this proceeding.

(b) The question of liability for costs reserved on 3 June, 5 June and 9 June 1992 be further reserved for determination on the date to be fixed for the assessment of damages pursuant to sub-paragraph (a) hereof."

The "plaintiff" is the respondent and the "second-named defendant" is the appellant.

34. The respondent did not deliver full particulars of damages until August 1997 and the assessment did not begin until 24th November 1997. The appellant then raised, for the first time, a question as to the cause or causes of action in respect of which damages were to be assessed. (In these reasons I use "cause of action" to include cause of suit.) Although Judge Murdoch's judgment had contained a paragraph that was virtually identical with paragraph 9 of the Full Court's orders, his Honour had said in his reasons that the question of "the plaintiff's entitlement to damages as against the Bank and the quantum of her damages" still needed to be considered. Consistently with the words that I have italicized, the learned judge told counsel on the first day of the assessment that he had not previously considered what the cause of action was. A little later he said, "I don't believe I considered whether there was a good foundation in law for a claim for damages. I simply didn't advert to it. It wasn't necessary at that time, and I put the question aside."

37. The first two questions that arise on this appeal, which is brought against the judgment given following the assessment, are the meaning of paragraph 9 of the Full Court's orders and whether the judgment therein contained was final or interlocutory. Strictly speaking, the second question should be asked of the whole of the Full Court's orders, but it is convenient to consider it in that shorthand form.

40. I readily assume in favour of the respondent that the Full Court intended paragraph 9 to have no different effect from the corresponding paragraph in Judge Murdoch's judgment. That was paragraph 13, which read, "It is ordered that there be judgment for the plaintiff against the secondnamed defendant for damages to be assessed." We know from what his Honour told counsel that he had not considered whether the appellant was liable in damages and therefore could not have intended to decide that question. Had paragraph 13 still stood, an application might have been made under the slip rule to amend the paragraph to conform with his Honour's intention: see Arnett v. Holloway [1960] VicRp 6; [1960] V.R. 22 at 28 and 35. Paragraph 13 had been superseded by paragraph 9 of the Full Court's orders but, on the assumption I have made, an application under the slip rule might also have been made to the Full Court. That step was not taken and the judgment contained in paragraph 9 of the Full Court's orders stands in the form in which it was pronounced.

43. The function of a court is to decide the case before it. The decision is embodied in the judgment or order. That is the exercise of judicial power, against which an appeal may be brought. The reasons are in a different category altogether. In my opinion, a judgment for a plaintiff against a defendant for damages to be assessed is unambiguous: it determines the liability of the defendant to pay damages to the plaintiff, leaving only the quantum of those damages to be assessed. Paragraph 10(a) of the Full Court's orders, which reflected paragraph 14A in Judge Murdoch's judgment, was only a procedural direction. The "subject matter of [the] proceeding" had to be confined by the pleadings, for otherwise the question of liability could be re-opened. See the last four sentences of [31] below. The plain words of paragraph 9 cannot be read down by reference to Judge Murdoch's having said that the respondent's entitlement to damages remained to be considered. A fortiori, it is not permissible to have regard to what his Honour told counsel on the first day of the assessment. It follows that the appellant's liability in damages was established by paragraph 9 of the Full Court's orders and all that remained was for the quantum of those damages to be assessed.

46. As it happens, that conclusion favours the appellant, but the opposite could just as well have been the case: if the damages had been enormous, the appellant could not have denied liability or asserted that that question had not yet been determined.

49. Is a judgment such as that contained in paragraph 9 final or interlocutory? Were it not for the authorities referred to at [26-28] below, I should have thought that that question was answered by Hall v. Busst [1960] HCA 84; (1960) 104 C.L.R. 206. In that case a preliminary objection had been taken to the competency of the appeal on the ground that the order below was interlocutory. The High Court overruled the objection at 209 and at 218 Dixon, C.J. said:

"I think that the order was intended as a judgment for the plaintiff for damages to be assessed and therefore that it is final in the sense that word bears in s.35(1)(a)(2) of the Judiciary Act 1903-1955 (Cth)."

None of the other members of the Court expressly adverted to the question, but their Honours must have concurred in the opinion of the Chief Justice on that point. He was, in effect, giving the reason for the ruling at 209. Subject again to the authorities mentioned at the beginning of this paragraph, the ruling and the reason given are binding on us and we are obliged to hold that a judgment for a plaintiff for damages to be assessed, and accordingly the judgment in paragraph 9 of the Full Court's orders, is final. Such a judgment is sometimes said to be final as to liability but interlocutory as to quantum: see Light v. William West & Sons Ltd. [1926] 2 K.B. 238 at 241; Gamble v. Killingsworth & McLean Publishing Co. Pty. Ltd. [1970] VicRp 22; [1970] V.R. 161 at 172; Victorian Economic Development Corporation v. Clovervale Pty. Ltd. [1992] VicRp 40; [1992] 1 V.R. 596 at 598 and Taylor Woodrow Homes Builders Pty. Ltd. v. Chitarra (unreported, Full Court of the Supreme Court of Western Australia, 20th July 1994) at 5.

54. Mr. Davies endeavoured to meet that difficulty by relying on the decision of the High Court in Computer Edge Pty. Ltd. v. Apple Computer Inc. [1984] HCA 47; (1984) 54 A.L.R. 767. That too was an objection to competency. Gibbs, C.J., with whom Murphy and Wilson, JJ. agreed, said at 767-768

"The test for determining whether a judgment is final, which has been laid down in a number of cases including Carr v. Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246; 34 ALR 449, is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment. So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings. And the answer is, plainly, that it did not, because it left undetermined the question whether any, and what, damages were payable." (Emphasis added.)

As Marks and Gobbo, JJ. pointed out in City of Camberwell v. Camberwell Shopping Centre Pty. Ltd. [1994] VicRp 10; [1994] 1 V.R. 163 at 174, the question whether damages were payable at all had not yet been decided in Computer Edge. That is apparent not only from the word that I have italicized but also from 767, where the orders below are described. So far as is presently relevant, it had been ordered that, if the appellants wished to pursue claims for damages, the matter would be referred to the trial judge for findings on the evidence as to the knowledge referred to in s.37 or 38 of the Copyright Act 1968, in other words, for findings on liability for infringement of copyright.

59. In Fisher & Paykel Healthcare Pty. Ltd. v. Avion Engineering Pty. Ltd. [1991] FCA 434; (1991) 103 A.L.R. 239 the hearing before the primary judge had been limited to questions of liability. At 242 the Full Court of the Federal Court said that his Honour's judgment was therefore interlocutory, citing the Computer Edge Case. It was a citation without further discussion, for immediately thereafter it was explained that the appellant had sought and been granted leave to appeal. In Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v. J-Corp Pty. Ltd. [1993] FCA 266; (1993) 42 F.C.R. 452 the primary judge had made a declaration that the appellant had engaged in conduct in contravention of s.45D(1)(b) of the Trade Practices Act 1974 and had ordered that the appellant pay half of the respondent's costs of the proceeding. At 454 Lockhart and Gummow, JJ. said:

"On 9 December 1992, directions had been given to prepare for hearing the question of further relief, including any claim for damages. It followed that the declaration and costs order to which we have referred were interlocutory in character, and that leave to appeal from them would be necessary: see Fisher & Paykel Healthcare Pty. Ltd. v. Avion Engineering Pty. Ltd. [1991] FCA 434; (1991) 103 ALR 239 at 242."

Their Honours recorded that a notice of appeal had been filed without first obtaining leave, that the Court had drawn attention to the need for leave and that leave had ultimately been granted. Since then there has been a consistent line of authority in the Full Court of the Federal Court, including Caboche v. Ramsay (1993) 119 A.L.R. 215 at 225-226; NZI Securities Australia Ltd. v. Poignand [1994] FCA 1219; (1994) 51 F.C.R. 584 at 593-594 and Thai v. Commissioner of Taxation (1994) 53 F.C.R. 252 at 259-261. None of those cases refers to Hall v. Busst or the authorities mentioned at [26-28] below or the fact that liability had not yet been decided in the Computer Edge Case. Hall v. Busst was referred to, and would have been applied, by Finkelstein, J. in Melway Publishing Pty. Ltd. v. Robert Hicks Pty. Ltd. [1999] FCA 664; (1999) A.T.P.R. 41-693 at [77], but the Court granted leave to appeal. Heerey, J., who dissented, thought it was necessary: see [35]. Sundberg, J. did not advert to the question in his reasons.

64. Unless Hall v. Busst has been expressly or impliedly overruled by other decisions of the High Court, those cases would not justify our departing from Hall v. Busst or from the way in which the Computer Edge Case was understood in City of Camberwell v. Camberwell Shopping Centre Pty. Ltd.

67. Different considerations apply to the decision of a preliminary question or issue, as opposed to a decision on the whole question of liability that has been carried forward into a judgment, as in the present case: see Dunstan v. Simmie & Co. Pty. Ltd. [1978] VicRp 62; [1978] V.R. 669 at 670; Metcalf v. Permanent Building Society (1993) 10 W.A.R. 145 at 149; Barnes v. Australian Telecommunications Corporation [1996] 2 Qd.R. 1, especially at 3 lines 49-52, where the Computer Edge Case is said to vindicate Dunstan v. Simmie & Co. Pty. Ltd, and Griffiths v. Malika Holdings Pty. Ltd. (1997) 140 F.L.R. 353 at 355-359. It may be that some of the cases in the Federal Court fall into that category. The position is different in England and New Zealand: see White v. Brunton [1984] Q.B. 570 at 573 and Strathmore Group Ltd. v. Fraser [1992] 2 A.C. 172 at 178-179.

70. At first sight it may seem anomalous that a judgment for a plaintiff for damages to be assessed is final, for it may appear that such a judgment does not "finally determine the rights of the parties in a principal cause pending between them": see Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423 at 443; Licul v. Corney [1976] HCA 6; (1976) 180 C.L.R. 213; Little v. State of Victoria [1998] 4 V.R. 596 at 597-598 and Rouse v. IOOF Australia Trustees Ltd. (No. 2) [1999] SASC 205 at [42-48]. Mr. Karkar submitted that such a judgment does finally determine the rights of the parties and that the assessment of damages simply works those rights out. (Hall v. Busst was not mentioned in Hall v. Nominal Defendant, probably because no inconsistency was perceived. Windeyer, J. was a member of the Court in both cases.) That submission derives some support from the fact that there may be interlocutory orders after final judgment: see Benfield v. Australian National Railways Commission (1992) 8 W.A.R. 285 at 294-295. Indeed such orders are quite often needed to work out or give effect to a final judgment and an order that is not final is necessarily interlocutory: see Coles v. Wood [1981] 1 N.S.W.L.R. 723 at 726. It is apparent, therefore, that "interlocutory" was not being used in its technical sense in Cardile v. LED Builders Pty. Ltd. [1999] HCA 18; (1999) 73 A.L.J.R. 657 at [43], but simply to emphasize the point that a Mareva order may operate after, as well as before, final judgment. See also Smith v. In Shoppe Pty. Ltd. (1976) 33 F.L.R. 107, especially at 114, and compare paragraph 10(b) of the Full Court's orders in the present case.

73. The word "interlocutory" is used in Rule 21.03(1)(b) and Form 60J in the Supreme Court (General Civil Procedure) Rules 1996 in a sense with which the profession was also familiar from O. XIV proceedings: see, for example, Producers' Co-operative Distributing Society Ltd. v. Ace Packing Co. Pty. Ltd. [1961] VicRp 15; [1961] V.R. 85. The use of the word "interlocutory" may be explained either on the footing that the judgment is interlocutory as to quantum (see [13] above and especially Gamble v. Killingsworth & McLean Publishing Co. Pty. Ltd. at 172) or by the acceptance in practice of Lord Esher's test in England, whence such rules originated. The difference between the tests propounded by Lord Esher and Lord Alverstone, C.J. is explained in Salter Rex & Co. v. Ghosh [1971] 2 Q.B. 597 at 600-601. It is the latter test that has ultimately prevailed in Australia. The question whether an order was final or interlocutory was unlikely to arise in O. XIV proceedings, because of the statutory provision now found in s.17A(5) of the Supreme Court Act 1986. Compare Cox Brothers (Australia) Ltd. v. Cox [1934] HCA 16; (1934) 50 C.L.R. 314.

76. If the matter rested there, it would follow that the respondent's cause or causes of action merged in the judgment given in her favour against the appellant for damages to be assessed, because that was a final judgment at least as to liability. All that remained to be determined was the quantum of damages and reserved costs. The pleadings could be amended or further particulars given for that limited purpose only: see Victorian Economic Development Corporation v. Clovervale Pty. Ltd. especially at 604-605. A new cause of action could not be introduced. I shall for the moment proceed on that footing before turning to the authorities that may require a different approach but not, in my opinion, a different conclusion.

79. At the date of the Full Court's orders there was a further amended statement of claim. Although the prayer for relief sought damages as against the appellant, the only allegation of loss or damage was contained in paragraph 21. Paragraph 16 alleged breaches of trust by the respondent's husband in mortgaging the matrimonial home at 9 Knight Street, Clayton and the two Buchan lots. Paragraph 17 referred to the registration of the mortgage and paragraph 18 alleged that the appellant was aware at all material times of various matters specified elsewhere in the pleading. (It was not alleged that the appellant was aware of the respondent's contribution to the purchase price of the matrimonial home, which alone, according to the decision of the Full Court, gave her an equitable interest in that property.) Paragraphs 19 to 21 read:

"19. By reason of the matters alleged in paragraphs 16, 17 and 18 hereof, the secondnamed defendant has knowingly and deliberately participated in the firstnamed defendant's breaches of trust against the plaintiff.

20. Further and in the alternative, the secondnamed defendant fraudulently induced the firstnamed defendant to execute the mortgage, alternatively the purported mortgage, to the detriment of the plaintiff's interests in the Clayton and the Buchan properties.

The plaintiff repeats the particulars subjoined to paragraph 18 hereof.

21. By reason of the matters alleged in paragraphs 16,17, 18, 19 and 20 hereof, the plaintiff has suffered loss and damage.

The plaintiff will provide particulars of the loss and damage suffered by her prior to the hearing of this action."

The "firstnamed defendant" is the respondent's husband.

94. The reasons for judgment given by the Full Court show that the appellant did not knowingly or deliberately participate in any breaches of trust by the respondent's husband as pleaded in paragraph 19: see especially 325. The appellant did not fraudulently induce the respondent's husband to execute the mortgage as pleaded in paragraph 20. The fraud came later when the mortgage was altered by the addition of the Buchan lots. Particulars expressed to be under paragraph 21 were provided, but they cannot alter the causes of action pleaded. The evidence did not establish that the respondent suffered loss or damage by reason of the matters alleged in paragraphs 16, 17, 18, 19 and 20 of the further amended statement of claim or any of them. It follows that, although she had a judgment in her favour, the judgment entitled her to no more than nominal damages, in much the same way as a person who proves a breach of contract but cannot prove any actual loss or damage flowing from the breach is entitled to nominal damages.

97. It is common ground that the further amended statement of claim did not include a claim for damages on the case, but Mr. Davies argued that it did include a claim for trespass, namely:

"22. On or about 29 October, 1991 the secondnamed defendant obtained possession of the Clayton property and the Lot 4 Buchan property and the Lot 6 Buchan property pursuant to a judgment given on 1 July 1991 by the Supreme Court of Victoria in proceedings numbered 12430 of 1990, 12422 of 1990 and 12429 of 1990 all between the secondnamed defendant herein as plaintiff and the firstnamed defendant herein as defendant ('the judgments')."

Quite apart from the want of a link between that paragraph and the claim for damages, the paragraph simply does not plead trespass. On the contrary, it negates that cause of action by expressly alleging that the appellant obtained possession pursuant to a judgment. I have already mentioned that the only particulars that might be thought to be relevant were provided under paragraph 21.

102. At the outset of the assessment of damages senior counsel for the appellant submitted that the further amended statement of claim did not disclose any basis at law or in equity upon which damages or compensation could be assessed. The learned judge ruled that the respondent was not limited to her pleading as it then stood and gave the respondent leave further to amend the statement of claim to encompass causes of action for trespass and case and to seek both aggravated and exemplary damages. The alleged trespass was the execution of the warrant of ejectment (strictly speaking, a warrant of possession) referred to in National Australia Bank Ltd. v. Maher at 323 and of similar warrants in relation to the Buchan lots and the appellant's remaining in possession of the matrimonial home and Lot 6 at Buchan until March 1992. The claim in case was put in two different ways. First, it was said that, by fraudulently altering the mortgage, the appellant by its agents intended to harm all persons then interested in the matrimonial home and Lot 6 at Buchan. Secondly, it was said that, by obtaining possession of those two properties "on the strength of the forged mortgage and the judgments entered thereon" the appellant by its agents intended to harm the persons who were then in possession of them.

105. After a hearing lasting ten days, his Honour assessed the respondent's loss and damage in the sum of $508,841 together with interest thereon agreed in the sum of $17,033.35. The principal sum included general damages of $50,000, aggravated damages of $50,000 and exemplary damages of $400,000. There were also special damages. If the judgment contained in paragraph 9 of the Full Court's order was final, the whole of that assessment must be set aside: see [20] and [22] above.

108. I turn now to the authorities referred to at the beginning of [13]. In Electricity Commission of N.S.W. v. Lapthorne [1971] HCA 11; (1971) 124 C.L.R. 177 the respondent had claimed damages for negligence under the Compensation to Relatives Act 1897-1953 (N.S.W.) in respect of the death of her husband. She had failed at first instance but the Court of Appeal had ordered that judgment be entered in her favour with damages to be assessed. The High Court held, by majority, that that order was interlocutory. Barwick, C.J. expressed the opinion at 184 that it "did not dispose of the action nor of any part of it", for damage was of the gist of liability in negligence. His Honour said at 185 that he was unable to accept Hall v. Busst as an authority for the proposition that a judgment for the plaintiff in an action for negligence in the Supreme Court of New South Wales was other than an interlocutory judgment until the damages had been determined either by assessment or by agreement and, in the latter case, the agreement converted into the record. See and compare J.J. Savage & Sons Pty. Ltd. v. Blakney [1970] HCA 6; (1970) 119 C.L.R. 435 at 437 and the order at 443. His Honour then enumerated a number of reasons why Hall v. Busst was distinguishable. McTiernan, J. agreed with the Chief Justice. So did Owen, J., but on a much wider basis that would encompass all claims for unliquidated damages. Menzies and Walsh, JJ. dissented. Their Honours would have applied Hall v. Busst and held that the order was final.

111. A similar question, for present purposes, arose in Hahn v. Conley [1971] HCA 56; (1971) 126 C.L.R. 276. On that occasion Walsh, J. agreed with Barwick, C.J., citing Electricity Commission of N.S.W. v. Lapthorne. Windeyer, J. left the point open. The relevant passages are at 278, 293 and 296.

114. Burns v. Lipman [1975] HCA 2; (1975) 132 C.L.R. 157 also concerned an action for damages for negligence. The plaintiff had failed at first instance but had succeeded on appeal. The Full Court of the Supreme Court of Tasmania had set aside the verdict in favour of the defendant and ordered that the plaintiff recover against the defendant 25 per cent of his damages to be assessed and that the assessment of those damages be remitted to the trial judge. It will be observed that that is indistinguishable from the present case, except that neither of the causes of action pleaded here was in negligence and a question might arise as to whether damage or loss was an essential component of liability. Speaking of the judgment given by the Full Court, Barwick, C.J., Stephen, Mason and Jacobs, JJ. said at 159, "From this judgment the appellant appeals to this Court. The question arises whether any appeal lay as of right. Damages have not been finally assessed, nor was final judgment entered. The Full Court's order is thus interlocutory."

117. In Taylor Woodrow Homes Builders Pty. Ltd. v. Chitarra there was an objection to the competency of an appeal from a judgment for damages to be assessed. Again the cause of action was negligence. As the Full Court was disposed to grant leave to appeal in any event, it was unnecessary to decide whether the judgment was final or interlocutory, but Malcolm, C.J., with whom Kennedy and Rowland, JJ. agreed, said at 4 that there were substantial obstacles in the way of contending that a judgment for damages to be assessed, described in the rules as an "interlocutory judgment", was anything else. Electricity Commission of N.S.W. v. Lapthorne might be distinguishable but, his Honour continued, the question appeared to be settled by Burns v. Lipman. He added that it might be thought that there was much to be said for the English view that, although the rules refer to an interlocutory judgment, the character of an interlocutory judgment for damages to be assessed is that it is final on the question of liability and interlocutory on the question of quantum. See also Neczypir v. Barrett (1991) 14 M.V.R. 413 at 417-418.

120. It may be that Hall v. Busst has been overruled by Burns v. Lipman, if not by the two cases that preceded it in 1971, or at all events that the reason given by Dixon, C.J. at 218 for the ruling at 209 is no longer binding. Another view is that those cases apply where damage or loss is an essential component of the cause of action and Hall v. Busst applies where it is not. Hall v. Busst arose out of an action for damages for breach of covenant, where damage is not of the gist of the cause of action, and it will be recalled that in Electricity Commission of N.S.W. v. Lapthorne Barwick, C.J. began his discussion of this question at 184 with a reference to that very point. He repeated it at 185. Quaere, however, whether a judgment for damages in negligence does not itself imply a finding of sufficient damage to sustain liability even if the quantum of damages remains to be assessed. J.J. Savage & Sons Pty. Ltd. v. Blakney concerned an action for damages for breach of contract. It therefore resembled Hall v. Busst. The order shows that the High Court considered that it had jurisdiction.

123. In the present case it is unnecessary to choose between the competing views. Even if the judgment in paragraph 9 of the Full Court's orders was interlocutory, it was too late to permit the amendments that his Honour did. The trial culminating in the judgment of 16th December 1992 extended over several weeks. It was fought on a further amended statement of claim that did not allege a trespassory entry or seek damages on the case or exemplary damages. As to the last, see Rule 13.07(3). Had the pleading encompassed any of those matters, the appellant might well have conducted its defence differently. The decision to permit an amendment is discretionary, but with respect the discretion could not be exercised as it was. A substantial change to the respondent's case was objectively unfair to the appellant and, given the stage at which it occurred, inconsistent with the orderly conduct of the litigation. Liability had been determined. The introduction of new causes of action meant that it had to be determined again, but that was done only for the purpose of justifying the amendments. The hearing that began on 24th November 1997 proceeded as an assessment. For these reasons, too, the assessment must be set aside.

126. I should not like the respondent to think that she has lost her case for what may appear purely technical or procedural reasons. In truth, in my opinion, she had no entitlement to any damages in trespass or on the case. I proceed to explain, briefly, why that was so.

129. The entry that was said to be trespassory was effected by the Sheriff under the authority of warrants of possession issued by the Supreme Court on 12th July 1991 at the request of the appellant. The warrants were in respect of the judgments against the respondent's husband referred to in National Australia Bank Ltd. v. Maher at 322. Those judgments have not been set aside. In Williams v. Williams [1937] 2 All E.R. 559, where a landlord had regained possession of premises, Greer, L.J., with whom the other members of the English Court of Appeal agreed, said at 561:

"First of all, with regard to the case of the defendant Williams, the landlord, I think it is clear to demonstration, from the case that has been cited of Woollen v. Wright [(1862) [1862] EngR 840; 1 H. & C. 554, 158 E.R. 1005] and other cases, and from a well known rule of law, that a sheriff and a sheriff's officer, executing a judgment of the court, are acting, as one may say, on behalf of the court. Each is doing his duty as an officer of the court, and is not a servant or agent of the plaintiff who has recovered judgment in the action. Of course, there may be circumstances which show that the plaintiff by intervention had made the sheriff his agent to do something which was not covered by the judgment, or by the writ of execution. If I had thought that what happened in this case amounted to that, or that the county court judge had found as a fact that the landlord Williams interfered, and requested the sheriff's officer to execute the judgment on property upon which he was not entitled to execute the judgment, then the judge would have been right. But, in my view, there is no evidence justifying any finding as to the special direction given to the sheriff or the sheriff's officer which might make the sheriff or the sheriff's officer the agent of the defendant Williams, the landlord. That is enough to dispose of the case as regards the defendant Williams."

See also Barclays Bank Ltd. v. Roberts [1954] 1 W.L.R. 1212.

134. Counsel for the respondent sought to overcome that difficulty by submitting that the judgments had been procured by fraud: see Cabassi v. Vila [1940] HCA 41; (1940) 64 C.L.R. 130 at 147. The bank manager McDonald had sworn an affidavit in support which he must have known to be false, but the judgments were not procured by collusion, as in the Duchess of Kingston's Case (1776) 20 State Tr. 355. See Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed. 1996) at [367]. As in Cabassi v. Vila, they were at best examples of the second class referred to by the Earl of Selborne in Boswell v. Coaks (1894) 6 R. 167 at 168-169. They are effective until they are set aside. (I interpolate that the Court refused leave to the respondent to file and serve a late notice of contention to the effect that each of the judgments "ought to be set aside as a nullity nunc pro tunc".) Even in separate proceedings brought for the purpose, it is not at all self-evident that they could or would be set aside in a way that exposed the appellant to a claim in trespass.

137. In considering the claim for damages on the case it is necessary to bear steadily in mind that the only officer of the appellant who has been found guilty of fraud is McDonald. He is the only "agent" to whom the claim in case could refer: cf. [24] above. When he fraudulently altered the mortgage (or fraudulently caused it to be altered) he did not intend to harm any of the persons interested in the matrimonial home, for it was already subject to the mortgage. Lot 6 at Buchan is of little consequence for present purposes. By the time the appellant obtained possession of the properties "on the strength of the forged mortgage and the judgments entered thereon" McDonald had been removed as a bank manager and was employed in a different capacity by a subsidiary. He was not responsible for the decision to obtain possession. The officers of the appellant who were responsible for that decision were not aware of the respondent's equitable interest or the facts that gave rise thereto. I doubt that that would have afforded an answer if they had known of McDonald's fraud, but they did not. It should not be thought that the foregoing are the only difficulties that may have stood in the respondent's way: cf. Northern Territory v. Mengel (1995) 185 C.L.R. 307 at 341-343.

140. There is one final matter. It has been assumed for many years that exemplary damages may be awarded by a judge sitting alone. Mr. Karkar was disposed to concede that the correctness of that assumption could now be tested only in the High Court. (There was no jury in either Lamb v. Cotogno [1987] HCA 47; (1987) 164 C.L.R. 1 or Gray v. Motor Accident Commission (1998) 73 A.L.J.R. 45.) That concession may well be correct, but it does seem odd that rules under the Judicature Act 1883 (Vic.) and its successors in this State dealing with "mode of trial" should effect such a fundamental change. (The same is true if the rubric is "practice and procedure", for the issue is different from that decided in Naughton v. Colonial Provident Life & General Assurance Co. Ltd. [1928] VicLawRp 78; [1928] V.L.R. 533 at 538.) It is one thing to be found deserving of punishment and punished by a jury of one's fellow citizens without the safeguards of a criminal trial; it is another thing to be found deserving of punishment and punished without those safeguards by a judge. For an award of exemplary damages stands in place of both conviction and sentence. The better view of the rules made under the Judicature Act may have been that a plaintiff claiming exemplary damages was obliged to secure trial by jury. They preceded the developments referred to in Gray v. Motor Accident Commission at [16] and the avowed purpose of exemplary damages, as that case recognizes, is to punish: see especially [26], [40-43] and [95]. There is no need to consider the question further in the present case. As the President's judgment shows, there is a good deal to be said on both sides.

143. Leave should be granted if leave be needed to appeal against the judgment given on 13th February 1998 following the assessment of damages. The appeal should be allowed and there should be substituted an award of nominal damages in the sum of $5. I would hear counsel on the question of the costs of the assessment and the appeal.

148. I have had the considerable benefit of reading in draft the reasons for judgment of Callaway, J.A. The validity of awards of exemplary damages by judges sitting alone (or by magistrates) was not raised by the grounds of appeal and I would not wish in disposing of it to cast doubt on such an award. With that reservation I am in agreement with his Honour's reasons and the orders he proposes.

151. I would add that, had it been necessary to consider the figure awarded for exemplary damages by the primary judge, I should unhesitatingly have held it to be manifestly excessive. Indeed, had it been necessary to consider the figures at which the other categories of damages were assessed, I should probably have upheld most of the challenges to individual components of those figures as well as the challenges to some at least of the figures themselves as being excessive or overlapping