(b) did that occur at the relevant time, in the present case?
Mechanism and time for disclosure
17 On a view supported by the respondents, the reference to "the amount claimed" must have referred to the amount claimed in the statement of claim, by which the proceedings commenced. That was said to be consistent with the language of sub-s 51(1), which required identification of the jurisdictional limit of the Court "as at the time the action was commenced". Although there was an element of ambiguity in sub-s (1), as to whether the temporal element qualified both the jurisdictional limit and the amount claimed, the preferable construction, it was submitted, was that it did. The only likely source of the amount claimed in the proceedings at the time at which they were commenced would be the statement of claim.
18 That view, attractive in its terms, ran into several difficulties, foreshadowed above. The first was the pleading point, namely that it is no longer permissible in the District Court to plead an amount on account of unliquidated damages. That might imply that the s 51 does not apply to personal injury actions. That would not deprive the section of operation, because the civil jurisdiction of the Court is not limited to personal injury actions. Alternatively, if s 51 does apply to personal injury claims, it may be necessary to look beyond the terms of the pleading to identify the amount claimed.
19 The respondent supported its submission by noting that the pleading could make clear that the jurisdictional limit was exceeded by a statement that damages were sought in excess of that limit, without pleading any amount. However, it does not follow that an express statement of that kind would be the only permissible means of drawing the extent of the claim to the attention of a defendant. Further, such a statement would not identify an amount claimed.
20 A second difficulty in relation to the temporal element (and as a consequence, limiting reference to the pleading) is the possibility of amendment. It may readily be envisaged that a plaintiff will discover, after commencing proceedings, but well before trial, that his or her damages are indeed greater than originally claimed. As the respondents accepted, an amendment to the pleadings would normally operate from the date on which the pleadings were filed. No doubt, from a defendant's perspective, such an amendment would need to be made a reasonable time in advance of the commencement of the three months pre-trial period, so as to allow time to consider exercising a statutory right of objection to an expansion of the jurisdiction of the Court.
21 Thirdly, and consistently with the last point, the fact that there is a period for objection referrable not to the commencement of the proceedings but the commencement of the trial, suggests that either the situation might vary during the pendency of the proceedings or that the proceedings might properly remain on foot, including a claim in excess of the jurisdictional limit of the Court, without contravening the limitation on the Court's power to hear and dispose of the action, but contingent, within the time permitted, upon an objection being taken to the jurisdiction.
22 Fourthly, it is to an extent arbitrary to limit the source of information to the statement of claim, there being no clear line between those matters which are properly dealt with in the statement of claim and those which may be identified in a separate statement of particulars. As will be seen, the statement of particulars in the present case included particulars of the amounts claimed and was a document referred to in the statement of claim itself. That such material might equally well be found in the originating process or in a separate document is apparent from a consideration of Pt 14 of the UCPR. What is more, the appropriate source may vary depending upon the nature of the proceedings. In this context, the respondent's reliance upon the fact that s 51 may apply across a range of categories of civil action, tends against any inflexible construction of the non-technical phrase "the amount claimed".
23 Indeed, it may be sufficient if the fact that the amount claimed exceeds the jurisdictional limit can be found in a document provided to the defendant by the plaintiff, separately from the originating process and any document containing particulars required as part of the pleading or the disclosure exercise provided for in Pt 14 of the UCPR. It is, however, not necessary to determine this issue in the present case. The appellant placed reliance only upon the statement of claim and the particulars provided with it either at the commencement of the proceedings, or by way of amendment, but at a time well prior to the commencement of the three month pre-trial period.
Timing and mechanism for disclosure
24 In a judgment dealing with the whole of the proceedings, Murrell DCJ dealt with the jurisdictional limit issue with admirable succinctness, having identified the nature of the dispute. She stated at [87]:
"Section 51(1) means that if, when filed, a statement of claim unambiguously claims more than the jurisdictional limit of $750,000 then, if no objection is raised in accordance with section 51(2)(b), the Court has extended jurisdiction in accordance with section 51(4)."
25 Her Honour noted that Elkaim DCJ had been inclined to adopt a similar approach in a matter of Bebe v Woolworths Ltd (unrep, 11 July 2008). However, in Bebe the point did not need to be decided, the damages as assessed being well within the Court's jurisdictional limit. The question appears to arisen as to the limits on available relief (a different point), but his Honour expressed a preference for the proposition that a claim as set out in a statement of particulars filed with the statement of claim would constitute the claim for the purposes of s 51: at [67]-[68].
26 After considering certain other aspects of the material before the Court, her Honour was not satisfied that "the amount claimed by Ms Richards exceeded the jurisdictional limit of the Court as at the time that the action was commenced": at [90]. This conclusion was not favourable to the plaintiff - as a finding that the Court had jurisdiction - but meant that the relief available had not been extended by the defendants' failure to object.
27 The respondents relied on this combination of statements, at [87] and [90], to support their submission that her Honour had determined the matter as at the date of claim by reference to the statement of claim itself. Her lack of satisfaction was that the statement of claim "unambiguously" claimed an amount in excess of the amount of the jurisdictional limit.
28 Accepting for present purposes that this reading of her Honour's reasons is correct, the approach is, with respect, too constrained and inflexible. It is no doubt open to consider the claims in the pleading, but it is wrong to limit consideration to that document. It is significant that s 51 does not in terms require that, whereas other provisions do. For example, in s 44(2), as in s 51, there is reference to "the amount claimed in an action", which may cover proceedings brought by way of cross-claim, as well as the principal action, but which could still have been identified as appearing in a pleading, if that had been intended. Such language is adopted in s 23, dealing with abandonment of the excess, and was so adopted in s 50 of the District Court Act, prior to the commencement of the Civil Procedure Act. Section 50 referred to abandoning the excess "by stating the abandonment in the document by the lodging of which an action is commenced" and s 23 now refers to "a statement to that effect in the originating process".
29 Although it might be thought that not much weight should be placed on minor variations of terminology in a statute which has been much amended, the point of distinction may be found in the sections as they existed in the District Court Act in 1973, prior to any amendment.
30 Secondly, although the respondents placed some emphasis on the breadth of the Court's jurisdiction and the falling proportion of the cases for personal injury, for the purposes of statutory construction, the argument works against them. In 1973, upon the commencement of the District Court Act, it would have been anticipated that a large proportion of the civil jurisdiction of the Court would have constituted personal injury actions. At that stage the jurisdictional limit was $10,000. It is implausible that the legislature did not intend the procedure for expanding jurisdiction by consent to apply to personal injury actions. It is also true that, until the commencement of the UCPR, there appears to have been no express prohibition on pleading an amount of unliquidated damages in the District Court Rules. Nevertheless, the practice underlying that prohibition was established under the general law, before it found its way into Court rules. One purpose of such a practice may have been to prevent a plaintiff claiming unliquidated damages to obtain a default judgment for a specific sum, rather than for damages to be assessed. Further, at that time many personal injury claims were determined by jury verdict. When the jury assessed the damages, it was necessary to consider how account was to be taken of deductions by way of compensation and contributory negligence, a matter dealt with in the District Court Act (s 76), the operation of which was discussed by this Court in Nichols v Patrick Stevedoring Co Pty Ltd [1979] 2 NSWLR 457 at 459 (Samuels JA, Glass JA agreeing).
31 More importantly, there has never been a clear distinction between matters properly dealt with in pleadings and those appropriately dealt with by statements of particulars. In circumstances where it is inappropriate to identify a specific amount claimed by way of unliquidated damages, it is almost inevitable that the details of the amount claimed will be dealt with in a statement of particulars. That happened in the present case and the appellant was entitled to rely upon that document in having the Court determine "the amount claimed", for comparison with the jurisdictional limit.
Was the amount claimed revealed in this case?
32 Although her Honour assessed an amount some $200,000 above the jurisdictional limit of the Court, at [82], she also concluded that "the amount claimed" did not exceed the jurisdictional limit "unambiguously": at [90]. The reasoning has, in part, been noted above: the remaining paragraphs in that reasoning read as follows:
"[88] The October 2005 statement of claim sought 'damages'. The 'particulars of moneys paid or liable to pay' were 'to be advised'. In relation to particulars of economic loss, the reader was referred to the statement of particulars. The statement of particulars referred to out-of-pocket expenses of $1129.50. Future out-of pocket expenses were said to be $15,000 plus other unquantified expenses. In relation to past economic loss, there was a claim from 22 September 2004 of 'approximately $800 to $900 net per week … and continuing'. As to future economic loss, 'a claim (was) made at the plaintiff's pre-accident rate of pay until age 65 years'. There was no evidence as to what documents evidencing pre-accident rate of pay accompanied the statement of particulars, if any. At the trial, the evidence established that, in the period preceding the accident, Ms Richards earned $720 gross or $565 net per week. Ms Richards argued that, in effect, the statement of claim and statement of particulars claimed a total sum of $771,273 (see Exhibit K).
[89] Exhibit K does not accurately reflect the claim as articulated on 10 October 2005. First, it assumes a past wage loss claim of $900 net per week over 1.1 years rather than $800 net per week over one year and 18 days. Second, it contains a future wage loss claim of $900 per week rather than $565 net per week (assuming that the statement of particulars was accompanied by a document evidencing $565). Third, it refers to the standard (but not automatic) discount for future economic loss of 15% for contingencies. Adjusting the Exhibit K figures claim to allow for these differences, the total falls well short of the jurisdictional limit of $750,000."
33 There are three related problems with this assessment. First, her Honour treated the phrase "pre-accident rate of pay", as relevant to future loss of earning capacity, as something different from the "$800 to $900 net per week" referred to as the figure for calculating past economic loss. Secondly, her Honour assumed (perhaps favourably to the plaintiff) that there was evidence available at the commencement of the proceedings to support a pre-accident rate of pay of $565 net per week. She treated that as the claim figure, because it was the amount revealed in the evidence. Thirdly, her Honour's use of Exhibit K at [89] was mistaken. The purpose of the exercise was to assess the economic loss as claimed. It was correct (and not some form of false assumption) to calculate the claim on the basis of $900 net per week. Nor was it erroneous to treat the calculation as subject to a discount of 15% for contingencies. It may be doubted whether any such allowance was required in seeking to identify the full extent of the "claim". Nevertheless, there was no basis identifiable in the statement of particulars which would have required a greater adjustment.
34 There is no doubt that the principal item in the calculation of damages was the loss on account of reduced earning capacity. Unlike the claim, the calculation in Ex K differentiated between past and future economic loss. As to the future, after allowance for 15% for vicissitudes, the amount was identified as $628,830. When an amount on account of superannuation was added to that figure, the two items in combination are almost $700,000. Exhibit K added an amount for past economic loss (including superannuation) of a little over $57,000. Specified amounts for out-of-pocket expenses were in excess of $16,000. Those calculations did not take account of any amount in respect of non-economic loss (for which her Honour allowed $171,000) or gratuitous attendant care services (past and future) (for which her Honour allowed approximately $170,000). Although the judgment did not explain those omissions, the justification was presumably that no specific amounts were identified in the statement of particulars in relation to those items. At least in relation to domestic assistance, the statement of particulars identified a claim for 14 hours per week "from the date of the accident to date and continuing for the balance of the plaintiff's natural life". A rough calculation of that item could readily have been made by a person familiar with assessing personal injury claims.
35 Putting to one side the omitted figures, the justification for her Honour's approach requires reference to the statement of particulars with respect to economic loss and particularly loss of earning capacity. It is convenient to set out the relevant items as they appeared in an amended statement of particulars dated 22 May 2008, and thus pre-dating the commencement of the trial by over nine months. The statement was as follows:
"PARTICULARS OF ECONOMIC LOSS
At the time of the accident the plaintiff was unemployed. She was in fact trying out for a possible job with the defendants. Even if the plaintiff had not obtained work with the defendants she would have obtained work as a truck driver within a short period of the accident and would have earned approximately $800 to $900 nett per week. A claim is made from 22 September 2004 to the date of this statement and continuing at that rate.
PARTICULARS OF LOSS OF FUTURE EARNINGS AND EARNING CAPACITY
The plaintiff is permanently precluded from any heavy work or work involving lengthy periods of walking or standing or sitting or kneeling or squatting or using stairs or ladders. She cannot work in the full duties of a truck driver. These duties generally involve her climbing in and out of truck cabins as well as loading and unloading. A claim is made at the plaintiff's pre-accident rate of pay until aged 65 years."
36 This statement does not divide the claims for economic loss into "past" and "future": that is understandable, because such calculations could only be undertaken at the date of trial (or judgment). Her Honour was in error in thinking that the figure of $800 to $900 net per week was restricted to past economic loss. The claim based upon that figure was expressly stated to extend to the date of the statement "and continuing".
37 Secondly, what comes under the second heading was not limited to "future economic loss". The particulars there provided related to the degree of impairment of earning capacity and undoubtedly applied both to the period between the accident and the date of the statement and to the future. The statement identified the hypothetical earning capacity, but for the accident, and the basis for claiming a total diminution of earning capacity as a result of the accident. Read as a whole, the phrase "pre-accident rate of pay" was intended to be a reference to the only rate of pay specified, namely $800 to $900 net per week, which was her earning capacity, but for the accident.
38 The calculation of damages which flows from these particulars is reasonably straightforward, although it may require a copy of the actuarial tables commonly used by professionals involved in assessing personal injury claims.
39 Two questions arise from these considerations: first, assuming that the statement is to be read as explained above, is it sufficiently precise in identifying particulars of the amount claimed to trigger the obligation on the defendants to object, if they wished to resist the extended jurisdiction of the Court? Secondly, does the fact that the trial judge read the statement differently suggest there is a degree of ambiguity which is, of itself, and regardless of the need to undertake some calculations, inconsistent with a sufficient specification of the amount claimed?
40 The statement must be read, for present purposes, through the eyes of the defendants, or their insurers, or their legal advisors, depending on the circumstances. This is not a question of statutory construction, but a consideration of the effect of the statement on the intended reader. That effect may be different depending upon the identity of the reader. For example, a statement in a document which is intended to make perfect sense to a lawyer and convey a particular impression, may not be effective in that regard if the person who in fact reads the document is not a lawyer. There is no doubt that, in the present case, the pleadings were considered by insurers and lawyers. If the defendants had been self-represented litigants, what might have been an adequate statement of an amount claimed, for professionals to understand, might well fail in its purpose. Whether, in a particular case, an adequate identification of the amount claimed has been made will be a question of fact. As explained by Lord Hoffmann in Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 774, in relation to the construction of a notice to determine a lease:
"It is a matter of constant experience that people can convey their meaning unambiguously although they have used the wrong words. We start with an assumption that people will use words and grammar in a conventional way but quite often it becomes obvious that, for one reason or another, they are not doing so and we adjust our interpretation of what they are saying accordingly. We do so in order to make sense of their utterance: so that the different parts of the sentence fit together in a coherent way and also to enable to the sentence to fit the background of facts which plays an indispensable part in the way we interpret what anyone is saying."