Nicol v Allyacht Spars Pty Ltd

On 6 November 1987 the Court upheld an appeal from the Full Court of the Supreme Court of Queensland which had rejected an appeal by the present appellant against the dismissal of his claim for damages against the present respondent: see Nicol v. Allyacht Spars Pty. Ltd. [1] .

The order of this Court was in the following terms:

Order of the Full Court of the Supreme Court of Queensland dated 19 December 1986 set aside and in lieu order:

Judgment of the Supreme Court of Queensland dated 3 April 1986 be set aside in so far as it adjudges that the plaintiff recover nothing against the defendant and that the defendant recover against the plaintiff its costs to be taxed. In lieu thereof enter judgment for the plaintiff against the defendant in the sum of $167,609.57 together with interest and order that the defendant pay the plaintiff's costs of the action.

Reserve liberty to the appellant to apply on 7 days notice for such order in relation to interest as may be appropriate.

While the respondent accepts that the appellant is entitled to some award of interest in respect of the judgment he has obtained, the parties are at odds as to the period for which interest is payable and as to the appropriate rate.

Judgment dismissing the appellant's claim was given on 3 April 1986. As already mentioned, the order of this Court was made on 6 November 1987. The respondent paid the damages awarded against it, $167,609.57, on 30 November 1987. The appellant claims to be entitled to interest from 3 April 1986 until 30 November 1987. The appellant puts his case in terms of the Common Law Practice Act 1867 Q. ("the Act"). Section 73 of the Act reads:

(1) Where judgment is given or an order is made by a court of record for the payment of money in a cause of action that arose after the commencement of the Common Law Practice Act Amendment Act 1972, interest shall, unless the court otherwise orders, be payable at the rate prescribed from time to time by Order in Council and until so prescribed at the rate of eight per centum per annum from the date of the judgment or order on so much of the money as is from time to time unpaid.

(2) Notwithstanding anything contained in subsection (1) -

(a) where the court directs the entry of judgment for damages and the damages are paid within twenty-one days after the date of the direction, interest on the damages shall not be payable unless the court otherwise orders;

(b) where the court makes an order for the payment of costs and the costs are paid within twenty-one days after the ascertainment thereof by taxation or otherwise, interest on the costs shall not be payable unless the court otherwise orders.

The respondent contends that any liability to pay interest on the judgment by reason of s. 73 is confined to the period from 6 November 1987 to 30 November 1987. Nevertheless, the respondent concedes that it would be reasonable to order the payment of some interest pursuant to s. 72 of the Act to supplement the allowance for interest made under that section by the trial judge when assessing damages. Section 72 confers a power to include in a judgment a sum by way of interest for the period between the date when the cause of action arose and the date of judgment. The basis of this concession lies in the fact that some eighteen months elapsed between the conclusion of the proceedings in the Supreme Court and the disposal of the appeal by this Court.

The appellant takes his stand on s. 73, contending that, having regard to s. 37 of the Judiciary Act 1903 Cth, judgment was given for the purposes of s. 73 of the Act on 3 April 1986. It is implicit in the appellant's submission that if s. 37 of the Judiciary Act does not bring about the result for which he contends, there can be no claim to interest under s. 73 of the Act from 3 April 1986.

The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending in the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment.

The appellant, relying particularly upon the words "may give such judgment as ought to have been given in the first instance", submits that the order made by this Court became the judgment of the Supreme Court of Queensland, taking effect from 3 April 1986. The respondent's answer is that until 6 November 1987 there was no judgment requiring it to pay any money to the appellant and that "the date of the judgment" in s. 73(1) of the Act can only mean the date of the judgment pursuant to which money is payable.

In their written submissions, made pursuant to the liberty to apply provision, the parties made no reference to O. 43, r. 3 of the High Court Rules nor was any application made under that rule. Order 43, r. 3 is in the following terms:

(1) When a judgment is pronounced by the Court, the entry of the judgment shall, subject to the next succeeding sub-rule, be dated as of the day on which the judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date.

(2) By special leave of the Court, a judgment may be antedated or post-dated.

Putting to one side s. 37 of the Judiciary Act, there can be no doubt that an order made by this Court on 6 November 1987 would take effect from that date. The consequences for a plaintiff in the position of the present appellant were considered by the House of Lords in Nitrate S.S. Co. v. Short Bros. [1] and earlier by the Court of Appeal in Borthwick v. Elderslie Steamship Co. [No. 2] [2] . In the first mentioned case judgment was entered at first instance in favour of the defendants on 2 April 1919. An appeal to the Court of Appeal was dismissed on 30 October 1919. On 1 July 1921 the House of Lords allowed an appeal and entered judgment for the plaintiff in the sum of £50,000, that amount having been assessed by the trial judge in the event that an appeal against the dismissal of the plaintiff's claim should succeed. A question having arisen as to the date on which judgment was entered for the plaintiff, for the purpose of determining when interest should run, Lord Buckmaster, with whom the other members of the House agreed, said [3] :

If at the time when the matter originally came before your Lordships' House on July 1, 1921, it had been desired that the order then made should speak as from a date different from that on which it was pronounced, it was incumbent upon counsel to ask that this should be done. In the absence of any such direction, where judgment is, for the first time, directed to be entered in favour of any litigant party by this House, the date which that judgment will bear must be the date when the order is made. It is, of course, a totally different proposition where the effect of an order in this House is to restore a judgment of the court of first instance which has been reversed by an order of the Court of Appeal. In that case the judgment of the court of first instance is expressly restored and remains standing as from the date when it was given. But, in this case, there was no judgment until the time when it was directed that that judgment should be entered and made. 1. (1922) 91 L.J.K.B. 871; 127 L.T. 726; 38 T.L.R. 747; [1922] All E.R. Rep. 710. 2. [1905] 2 K.B. 516. 3. (1922) 91 L.J.K.B., at p. 873; 127 L.T., at p. 727; 38 T.L.R., at p. 748; [1922] All E.R. Rep., at p. 712.

In Borthwick v. Elderslie Steamship Co. [No. 2] the plaintiff failed at first instance in his claim for damages but succeeded on appeal to the Court of Appeal. Collins M.R. said [4] :

though the Appeal Court has all the powers of the High Court, including the power to give any judgment and make any order which ought to have been made by the Court of first instance, still the judgment of the Court of Appeal is a judgment of the date on which it was given, and it would require the invocation of the powers given by Order XLI., r. 3 [a rule in similar terms to O. 43, r. 3 of the High Court Rules], if that judgment is to be antedated. The judgment is not ipso facto antedated by reason that it is substituted for the judgment in the Court below. Having found no reason to antedate the judgment of the Court of Appeal, the Master of the Rolls continued [5] : I think, therefore, that no case has been shewn for antedating the judgment of this Court in order that the plaintiff may get interest for the time that elapsed between the trial and that judgment. Romer L.J. was of the same opinion [6] . 1. [1905] 2 K.B., at p. 519. 2. [1905] 2 K.B., at pp. 519-520. 3. [1905] 2 K.B., at p. 521.

In Nitrate S.S. Co. v. Short Bros., as has been seen, Lord Buckmaster distinguished the position where a judgment at first instance had been reversed by the Court of Appeal and restored by the House of Lords. The distinction is of importance if regard is had to Gould v. Vaggelas [7] . In that case the trial judge, Connolly J., had awarded the plaintiff damages of $1,427,500. On appeal the Full Court of the Supreme Court of Queensland reduced the award to $700,000; on further appeal the High Court restored the judgment of the trial judge. In dealing with the question as to the interest payable on the judgment, the High Court referred to the order of the Full Court that "there be interest at the rate of twelve (12) per cent on the judgment sum from date of judgment " and said [8] :

The order plainly varies the judgment given by Connolly J. by substituting a different sum for the figure set out therein. The "date of judgment" remains 18 September 1981 [the date when Connolly J. made his order] and it is from this date that the award of interest at the rate of 12 per cent per annum is to be calculated. That this must be so is demonstrated by the problem that would arise if the order of the Full Court were taken to set a new date of judgment, arguably leaving the original judgment of Connolly J. to attract the statutory interest in accordance with s. 73 of the Act until varied at the later date. The problem arising in Gould v. Vaggelas does not of course arise here. 1. (1985) 157 C.L.R. 215. 2. (1985) 157 C.L.R., at p. 274.

In the case now before the Court the appellant contends that when s. 73 of the Act is read with s. 37 of the Judiciary Act the consequence is that the Court gave the judgment that ought to have been given in the first instance, with the further consequence that the appellant's entitlement to damages now derives from the judgment of the Supreme Court of Queensland dated 3 April 1986.

In our view, the words "may give such judgment as ought to have been given in the first instance" in s. 37 of the Judiciary Act do not have the operation for which the appellant contends. Clearly they were not thought to do so in Borthwick v. Elderslie Steamship Co. [No. 2] for by its rules of court the Court of Appeal had all the powers of the English High Court, including the power to give any judgment and make any order which ought to have been made by the court of first instance: see Collins M.R. [9] . Such a provision speaks to the power of the Court and no doubt a rule such as O. 43, r. 3 of this Court's Rules is a useful corollary to such a provision. But to empower an appellate court, in the exercise of its appellate jurisdiction, to "give such judgment as ought to have been given in the first instance" does not, as Romer L.J. pointed out in Borthwick [10] , mean that the judgment of the appellate court "must be regarded for all purposes as if it had been the judgment given by the judge in the Court below".

1. [1905] 2 K.B., at p. 519. 2. [1905] 2 K.B., at p. 521.

In support of his argument that s. 37 of the Judiciary Act made s. 73 of the Act applicable, the appellant relied upon the decision of Franki J. in Moller v. Roy [11] . In that case the plaintiff was awarded damages in the Supreme Court of the Northern Territory. On appeal to the High Court, he obtained an order substituting a considerably increased amount of damages for that awarded by the Supreme Court. Franki J. said [12] :

It seems clear that the judgment in the subject matter took effect from 4 December 1974 and that when the High Court varied that judgment the variation took effect as from the same date. This is in accord with the provisions of s. 37 of the Judiciary Act 1903-1969. His Honour considered this approach to be in accord with views expressed in Keogh v. Dalgety & Co. Ltd. [13] and Agricultural Bank of Tasmania v. Brown [14] . Neither of those cases is, we think, truly in point for in each interest on judgment ran "from the time of trial" so the fact that in the end the plaintiff depended upon a judgment of an appellate court presented no obstacle to a claim for interest from an earlier date. 1. (1976) 11 A.L.R. 398. 2. (1976) 11 A.L.R., at p. 400. 3. [1917] V.L.R. 309. 4. [1958] Tas. S.R. 22.

While s. 37 of the Judiciary Act does not operate so that an order of this Court made on 6 November 1987 produces a judgment in favour of the appellant dated 3 April 1986, it does have a consequence of which the appellant may avail himself. The power conferred on this Court to give "such judgment as ought to have been given in the first instance" authorizes the inclusion in our order of a sum by way of interest pursuant to s. 72 of the Act from 3 April 1986 to 6 November 1987: L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council [No. 2] [15] . The appellant, in whose favour judgment has now been given, was deprived, during that period, of the damages to which he is entitled.

In this regard the respondent has made a submission which extracts from the damages assessed by the trial judge an interest component referable to past pain and suffering and past economic loss. Some of that past economic loss was refundable because it had been paid to the appellant as workers' compensation. In the respondent's submission, it would be appropriate to apply an interest factor of 10 per cent, which appears to have been the effective rate used by the trial judge in calculating interest from the date the cause of action arose, and to extend the interest component over the time that elapsed between the dismissal of the appellant's claim and the order of this Court. Allowing for the reduction made to the trial judge's assessment by reason of the appellant's contributory negligence and off-setting the interest component of the assessment, the respondent has arrived at a figure of $2,256.33. This, in our view, is a reasonable approach. The appellant has not argued with the mathematics involved.

Although the respondent concedes a liability to pay interest under s. 73 of the Act for the period from 6 November 1987 to 30 November 1987, that matter cannot be taken into account in fixing the interest payable pursuant to the order of the Court.

The interest payable pursuant to the order made on 6 November 1987 should be fixed at $2,256.33.