Sy AUSTRALIA ub COMMONWEALTH REPORTING SERVICE City Mutual Building, PRINCIPAL REPORTER, Hobart Place, AUSTRALIAN CAPITAL TERRITORY CANBERRA CITY, AC.T 2601 PO Box 476 Telephone: (062) 49 7322 CORRECTION TO TRANSCRIPT In the matter of Bill PALMER and Denise Gay BAMMAN as _executrix of the will of Peter James BAMMAN, heard in the Federal Court of Australia before Fox, Blackburn and Sheppare JJ, at Canberra on Thursday, 2 April 1981, please substitute pages 44 - 47 for transcript previously issued. This transcript has been re-issued at the request of the court, to incorporate the judgment delivered by ' the Court. b \ W. J. MILLS ' Principal Reporter RECEIVED 13/7/1981 ' Pe ce | per: I am sorry not to be able to be more informed, your Honours, but that is as much as we have been able to find out about. FOX J: You have got a fair range of selection then. MR GROVE: Yes, your Honour, but we would wish to put that on record we made that - - - SHEPPARD J: But in case we have to come to this, what do you say the significance of Barrellis for us, 1f any? Has it no significance or does it suggest a discount of two per cent or - - - MR GROVE: No, your Honour, we would contend that the true principle is to be found in an unreported decision of the Court of Appeal in New South Wales in Saul v Menon. That is unreported, your Honour, of 18 August 1980. SHEPPARD J: I think it 1s reported, Mr Grove. MR GROVE: Your Honour, in the indication of the New South Wales Law Reports it is supposed to be coming out in the next bit, part 3, your Honour. I can give your Honours the reference now. I looked for it last night. It 1s 1980 2 NSWLR, page 314, and we would contend that that 1s the true principle recognizing if one were before a single judge of the Supreme Court of New South Wales - for example, we are not, but certain matters of authority would be relevant, but our contention would be in this court that the true principle is found in Saul v Menon and that is what ought to be followed, Barrell notwithstanding. Your Honour, we would recognize this difficulty about it, that would be our contention and having said 1t we would wish to protect our position in relation to it. Indeed, I welcome that - - - FOX J: The headnotes in these cases seem interminable these days. They go on for about two to three pages, each judge expressing a different view as it were, even in New South Wales. MR GROVE: Your Honour, we can inform you in the two cases, Teodorowych and Brassell of the Court of Appeal, they are joint judgments. FOX J: Yes, quite. We have not seen the headnote of it yet. MR GROVE: Your Honours, those are the matters we wish to put. FOX J: The court will adjourn this case until 2.15 at which time it may be in a position to deliver judgment or 1t may on the other hand wish to reserve its decision. palman 2.4.81 44 MR GROVE t22b 1 jf FOX J: The court will deliver judgment in this matter now. This 1s an appeal from the Supreme Court of the Australian Capital Territory in respect of an action under the Compensation (Fatal Injuries) Ordinance 1968 of the Australian Capital Territory. In the action liability was admitted and the matter for determination by the learned trial judge was one of damages only. The defendant in that action has appealed to this court claiming that the damges awarded were excessive. I do not propose to go through all the facts, but to mention some basic ones. The deceased was born on 12 July 1952. He died in an accident on 20 January 1979. He had been married to the plaintiff, the respondent before us, on 3 June 1972. The plaintiff herself had been born on 5 January 1953, and was therefore 26 years old at the time of her husband's death. There are two children of the marriage, both boys, one of whom was born posthumously. The elderris Paul Anthony, who was born on 3 January 1975; the second 1s Christopher Peter born on 1 October 1979. The deceased, in respect of whose death the claim is made, was employed in the Commonwealth Public Service and was at the time acting in a Class 6 position in the Third Division of the Public Service. The learned trial judge found, and his finding is not attacked, that 21t was expected that the deceased would go as far as Class 9 in the Third Division but no further. The judge found that the net weekly income of the deceased after deducting tax and superannuation was at the time of death $257. He made a total award in the sum of $213,096.25. He opportioned this sum as to 50 per cent to the_plaintiff and as to 25 per cent to each of the children. He treated the children, for the purpose of his calculations, as being likely to be dependent until they were 21 years old respectively. Three points have been raised on this appeal. The appellant first points to the fact deposed to in the evidence of the plaintiff herself that she had been working before the deceased's death, was working at that time, and worked for a time after his death. Counsel has also properly referred to the fact that later in her evidence the plaintiff says that she was totally dependant upon the deceased. Counsel did not seek to use the evidence to which I have referred in any direct way, but says, rather, that the effect was not explored below. It may be that that evidence would have had little or no impact. The fact 1s that the matter having been disclosed 1n the plaintiff's evidence, it was not paliman 2.4.81 45 t23b 2 tw followed up on behalf of the defendant by cross-—examination or by evidence or argument. In my view 1t 1S now too late for the matter to be raised. The second point refers to the balance which the learned trial judge found between certain circumstances to which he referred in his judgment. He did not go into detail with respect to these matters but in general what he did do was to equate the value of the provision of labour in the sense of odd jobs done by the deceased, and of superannuation benefits with circumstances which might, in general, be called vicissitudes and with the "re-marriage factor" or revived capacity to marry. The learned judge, as I have said, did not deal in detail with these matters but found a balance between them. It has not been shown to us that he was wrong in relation at least to the question of vicissitudes and re-marriage it is plaint that these are particularly within the province of a trial judge and this court would not interfere unless there were plain indicationsof him being wrong. This is not the case, and in my view we should not accept this submission as being sufficiently cogent to cause us to upset the judge's decision. The third matter really had two aspects, one of which I think was passed from fairly quickly. That was reference to the expenditure shown in the evidence concerning mortgage payments and 1t was said that when they came to an end an allowance different from that which the learned judge made should be made in respect of the amounts which, up till then, would be disbursed in respect of the mortgage. There 1s scant evidence about the mortgage, beyond the fact that 1t existed and certain payments were made. We do not know when it would have come to an end and to what extent payments towards it were on account of principal or were on account of interest. In any event, the consequences, if one had sufficient information upon which to work them out, would not necessarily alter the assessment of damages; one would have to work out just what would be the appropriate way 1n proceedings such as these to treat the released income. The other aspect, which might be regarded as a fourth point, related to the calculation of the ultimate degree of dependency of the wife. The learned judge took it at 60 per cent, having in mind the amounts accruing and the dependency situation. In respect of the children successively attaining the age of 21 it 1s said, in short, that his Honour has wrongly estimated the released income, that 1s the 1ncome which would notionally be released upon the children palman 2.4.81 46 t23b 3 tw successively attaining 21, and has allocated the release in a wrong fashion. This 1s, however, essentially a matter of estimation and of judgment, and in my view his Honour has not been shown to be wrong. It was put by counsel for the respondent that it is not assumed that the deceased would not have spent more on his wife when the children were off his hands. That 1s what I understand the final point to have amounted to. It was a matter of judgment and in my opinion no basis has been shown for upsetting the assessment made by the learned judge. There are no further points and in my opinion therefore the appeal should be dismissed with costs. BLACKBURN J: I agree. SHEPPARD J: T also agree. FOX J: MR GROVE: The order of the court 1s that the appeal be dismissed with costs. If your Honours please. MR WILLIAMS: If the court pleases. AT 2.31 PM THE MATTER WAS ADJOURNED INDEFINITELY palman 2.4.81 47 t23b 4 tw