™N THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION ) ) No. ) BETWEEN E is AND CORRIGENODA Amendment of 25 July, 1983. Page 6 Line 4 3 after 11 August 1983 "need" insert "not" VG 166 of 1980 ROSETTA ARISTOTITE Applicant GLADSTONE PARK SHOPPING CENTRE PTY. LTD., HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. and GEORGE HERSCU Respondents GLADSTONE PARK SHOPPING CENTRE PTY. LTD. Cross Claimants ROSETTA ARISTOTITE Cross Respondent GLADSTONE PARK SHOPPING CENTRE PTY. LTD. and HERSFIELD DEVELOPMENTS CORPORATION PTY. LTD. Cross Thard Party Claimants ROSS WILLS and ROSS WILLS & ASSOCIATES PTY. LTD. Cross Third Party Respondents ° to the judgment of The Honourable Mr. Justice Jenkinson ¥ W. HARDMAN \-AsSOCIATE TO JENKINSON J. CLTCHIORDS Trale Practices - practicé and prosedur2 - statament of claia —- leavs to amend statemant of claim to includ? altsgat1rois of in jury. "rade Feactices Act 1974, ss. 4%, 52(1), 53A(1), 8261} ani ROSETTA ARISTOTITE v GLADSTONE PAPK SHOPPING CENTRE PTY. LTD. & ORS. No. V3 165 of 1939 CORAM : JENKINS GY J. PLACE -- MSLBOURYE - DATE : 25 JULY, 193 re ee ee ee ee 1. IN THE FEDERAL COURT OF AUSTRALIA _ )} VICTORTA DIST RICT RE GESTRY ) NO. VG 166 of 1980 GENERAL DIVISION } BETWEEN: ROSETTA ARIST OLITE Applicant AND: GLADSTONE PARK SHOPPING CENTRE PTY. ED +. CORPORATION "pte. LTD: "and Respondents AND: GLADSTONE PARK SHOPPING CENTRE PTY. LTD. Cross Claimants AND: ROSETTA ARISTOTITE Cross Respondent AND: GLADSTONE PARK SHOPPING HERSFIELD "DEVELOPMENTS CORPORATION PTY. LTD. Cross Third Party Claimants AND: ROSS WILLS and ROSS WILLS & ASSOCIATES PTY. LTD. Cross Third Party - Respondents JUDGE MAKING ORDER : JENKINSON J. WHERE MADE : MELBOURNE e DATE OF ORDER : 25 JULY, 1983 THE COURT .ORDERS THAT : l. Paragraph 16 of the statement of claim filed 13 December, 1986 be amended by inserting after the word "applicant" ee ere ee ee oN te te 2. 2. therein the words "was injured and". The particulars under the said paragraph 16 be amended by inserting after the heading "Particulars" therein and before the sub-heading "A. List of Expenses" therein the words :- "PARTICULARS OF INJURIES of the mouth. PARTICULARS OF ECONOMIC LOSS But for her medical condition the applicant who was born on the 12th Juiy, 1932 would have been able to she conducted at the Gladstone Park Shopping Gentre and Garn a nett annual income "of $300.00 from the 17th January 1980 to the present. Alternatively, the applicant would have been In n_fact, apart from casual work with. relatives S160 per 'week, a loss of $29, 120 which Loss is continuing. PARTICULARS OF LOSS OF EARNING CAPACITY But for her _medical condition the applicant had the capacity to "conduct a "profitable business of a kind Sumilar to that which she conducted at the conduct such a business in the Fabture 1f ever. Alternatively the applicant would have been employed as a shop assistant but she is unable to Say when her medical condition will permit her to again commence such employment, if ever. ~e -— ~~ - me eee ee ee ee eee eee soon wee ae ee te ae peer ert s Save as aforesaid the motion, of which notice was filed 4 July, 1983, on the part of the applicant that the applicant have leave to amend the statement of claim be dismissed but that this order be without prejudice to any further or other application on the part of the applicant that she have leave to amend the statement of claim by adding a claim or claims for damages against any respondent upon a cause of action at common law. The costs of the respondents and of the cross third party respondents of the motion of whioch notice was filed 4 July, 1983, be taxed and paid by the applicants. The respondents deliver any further requests for particulars of the statement of claim and any further interrogatories for the examination of the applicant on or before 12 August, 1983. The directions hearing be adjourned until Friday 28 October, 1983. IN THE FCDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ") NO. VG 166 of 1980 ROSETTA ARISTOTITE Applicant GLADSTONE PARK SHOPPING CENTRE PTY. LTD., HERSFIELD DEVELOPHENTS CORPORATION PTY. LIp. and GEORGE HERSCU Respondents GLADSTONE PARK SHOPPING CENTRE PTY. LTD. Cross Claimants ROSETTA ARISTOTITE Cross Respondent GLADSTONE PARK SHOPPLING CENTRE PTY. LTD. and HERSFIELD DEVELOPMENTS CORPORATION PTY. Lib. Cross Third Party Claimants ROSS WILLS and ROSS WILLS GENERAL DIVISTON ) BETWEEN: AND: AND: AND: AND: AND: CORAI: JENKINSON Jd. PLACE: MELBOURNE DATE: 25 JULY, 1983 REASONS FOR JUDGMENT & ASSOCIATES PTY. LTD. Cross Third Party Respondents Motion for leave to amend the applicant's statement of \ claim. The statement of claim, which was filed with the application on 13 December 1980, alleges that certain conduct which occurred in and before August 1979 was done in contravention of s.52(1) or of s.53A(1) of the Trade Practices Act 1974 and that the respondents were involved in each contravention. It is then alleged, in a later paragraph: "16. By reason of the facts aforesaid, the applicant has suffered loss and damage." . Neither in the particulars under that paragraph nor elsewhere in the statement of claim is it suggested that the applicant was caused any physical or psychological harm by the conduct pleaded. In March 1981 the respondents delivered a request for further and better particulars of the statement of claim. Paragraph 10 of that request 1s in these terms: "10. Under paragraph 16 thereof: . ° Of the allegation that the applicant suffered a nervous breakdown (a) precise particulars of the type and nature of the injuries and/or complaints constituting the nervous breakdown; (b) the date or dates when the applicant suffered the nervous breakdown; (c) partaculars With dates and amounts of all ae ee ase . eens -- earnings lost in consequence of tthe injuries; _{d) particulars of any loss of earning capacity resulting From the injuries specifying: (i) the period for which the applicant claims he has Lost and w21] lose earning capacity; (12i) the extent to which the applicant claims he has lost and will lose earning capacity; (11i) the nature and cause af the loss of earning capacity; , - (iv) the earnings of the applicant claims he has lost and will lose by reason of his loss of earning capacity." It was said that this request was mistakenly copied into the document because of some confusion between this application and another application in which the respondents' solicitors were engaged. Further particulars filed on 30 April, 1981 in response to that request included the following: "10. Pursuant to paragraph 10 thereof: The applicant intends to apply to amend the Statement of Claim herein to claim for her personal pain and suffering and will do so once the precise particulars sought in paragraph 10 of the Request are available." One of the amendments which the applicant now, in July 1983, seeks leave to make is to add to paragraph 16 of the statement of claim and the particulars thereunder the following underlined words: "16. By reason of applicant was injured the facts aforesaid, the and has suffered loss and damage. PARTICULARS OF INJURIES Moderate to severe an x1lety with depression, with nervous ticks marked by tremor and also grimacing of the mouth. PARTICULARS OF ECONOMIC LOSS But for her medical condition the applicant who was born on the 12th July, 1932 would have been able to " eonduct a business of a simllar kind to that which she conducted at the Gladstone Park Shopping Centre and earn a nett annua i_income of $300.00 from the employed as a shop ass istant earning (at present rates) the sum of approximately $160 nett per week. In fact, apart fromic asuaj work with relatives varying from 1 to 5 days per week for which the applicant 1s not paid otherwise than by receipt of food for her personal use, the applicant has been unable _to obtain empl oyment and has accordangly £182 weeks at the rate of 'S Of $29,120 which loss is continuing. PARTICULARS OF LOSS OF EARNING CAPACITY But for her medical condition the avplicant had the capacity to conduct a profitable business of a_kind Similar to that which she conducted at the Gladstone Park Shopping Centre and she is unable to say when her medical condition will permit her to conduct such a busines ss in the future if ever. Alternatively the applicant would have been a a i ee employed as a shop assistant but she 1s unable to .Whether in s.4K of the "anjury" be understood in the physical or psychological harm / Trade Practices Act 1974 the word sense of injuria or as denoting to the person, I consider that I we a ee a tee wee se 5. should assume, for the purposes of this motion, that s.52()) confers a right to recover the amount of the loss or damage suffered in respect of such physical or psychological harm by conduct of the kind alleged. No submission to the contrary was advanced. The submission of Mr. Glick of counsel for the respondents in opposition to the application for leave to amend paragraph 16 of the statement of claim was that the amendment introduced into the pleading a cause of action distinct from that which the pleading disclosed before amendment and that, because an action upon that new cause of action commenced now, more than 3 years after the date on which the cause of action accrued, might be barred by the respondents' relying on s.82(2) of the Trade Practices Act 1974, the rule in Weldon v. Neal (1887) 19 Q.B.D. 394 required that the application be refused. Mr. W. J. Martin of counsel for the applicant denied that the proposed amendment would introduce a new cause of action. He also advanced the alternative submission that in the exercise of the power conferred by Order 13 of this Court's Rules the rule in Weldon v. Neal 1s to be allowed no determinative influence and that the considerations upon which the rule is based are no more than some of the considerations to be weighed in the exercise of a - discretion unfettered by rules. In support of the latter submission Mr. Martin drew attention to what he argued were Similarities between provisions contained in Order 13 and provisions of the Supreme Court Rules 1970 of the Supreme Court of . N\ New South Wales which were considered by the Court of Appeal of @ wee ee 6. that State in McGee v. Yeomans [1977] 1 N.S.W.L.R. 273. The dissimilarities of the two sets of provisions seemed to me much more relevant to an evaluation of the submission than the similarities, but I need express, and refrain from expressing, any conclusion about the submission, because ] accept Nr. Martin's first submission, that the proposed amendment introduces no new cause of action. Personal injury by negligence raises a cause of action distinct from property damage by the same negligent act causing the same physical events : Brunsden v. Uumphrey (1884) 14 Q.B.D. 141. But in my opinion every kind of "loss or damage", including "injury", which the law shall] recognise as compensable in damages and which has been suffered by conduct of a description comprehended by s.82(1) is within the single cause of action which, as I think, that sub-section, read with s.4K, creates in relation to each act of that description. It is not difficult to suppose that the draftsman of the Act expected that the words "loss" and "damage" in s.82(1) and the word "injury" 1n s.4K would be interpreted as importing common law conceptions the expression of which involves the use of those words. But neither the use of those words nor anything else in the language of s.82 suggests an untention to split the causes of action created by reference to analogous common law causes of action which are differentiated upon the nature of the damage suffered. \ The proposed amendment of paragraph 16 introducing no new cause of action, the rule in Weldon v. Neal constitutes no bar to the amendment : Cutrona v. ilarnischfeger of Australia Pty. Ltd. (1977] V.R. 306. (Cf. the article by S. Campbell in 54 A.L.J. 643). Upon the assumption - which only the imperative language of Order 13 Rule 2(2) might be thought to call in question - that a discretionary power 1s conferred on the Court to grant or refuse «é leave to make the amendment as the justice of the case requires, I think that leave should be granted. The delay in formulating the allegations contained in the amendment was not said to have prejudiced the respondents' prospects of contesting successfully any of the allegations on the facts. The other amendment for which leave 1s sought is the introduction into the statement of claim of this paragraph: "15a. Further and alternatively, the false and misleading statements referred to in paragraph 12 hereof and the conduct that was misleading and deceptive and likely to mislead and deceive referred to in paragraph 13 hereof were intentional and positive acts of the respondents forbidden by law as an inevitable result of which the applicant was injured and has suffered the loss and damage referred to in paragraph 16 hereof." This paragraph was said by Mr. Martin te raise a cause of action declared by the High Court in Beaudesert Shire Council v. Smith {1966) 120 C.L%.R. 145 at 156 to lie at common law: "the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the 8. case, a person who suffers harm or' loss as the inevitable consequence of the unlawful, isntentional and positive acts of another 1s entitled to recover damages from that other. Mr. Glick's submission was that in the circumstances which the statement of claim alleges all the elements of that cause of action are elements of the cause of action created by s.82(1) of the Trade Practices Act 1974 and all the elements of that statutory cause of action are elements of the cause of action declared by the High Court, and that therefore s.82(2) of that Act affords the respondents a good defence to the cause of action sought to be alleged in the terms of paragraph 15A. If Mr. Glick's premise were granted, his conclusion could not be accepted, for the reasons already given in relation to the other proposed amendment. Mr. Giick also submitted that the proposed paragraph 15A had a tendency to cause prejudice and embarrassment in this proceeding in that it did not unawbiguously identify each act of each respondent which was alleged to have constituted an element of each cause of action antended to be raised, nor unambiguously specify the intention with which each act was done. I accept that submission. The cause-of action 15 not one found in common practice and its precise definition may be thought to be open to argument : see Fleming : The Law of Torts (6th ed.) pp. 661-662; Kitano v. Commonwealth (1974) 129 C.L.R. 151; Dunlop v. Woollahra Municipal Council (1981) 33 A.L.R. 621; Elston v. Dore (1982) 57 A.L.J.R. 83. Precision in pleading the cause of action as therefore essential, 1n my opinion. Paragraph 15A, if added to the statement of claim, would in my opinion cause prejudice and embarrassment, and for that reason leave to add it should not be 9. granted. One of the many questions which amendment of the statement of claim in the terms proposed would leave unanswered 1s the basis of a claim for damages upon this common law cause of action against the respondent George Herscu, against whom the only allegations outside the proposed paragraph 15A are as follows: . "2. The third-named respondent is and was at all material times a director of the first- and second-named respondents. 8. The third-named respondent at all material times knew of and approved of the contents of the advertisements referred to in paragraph 5 hereof and of the contents of the pamphlet and thereby aided, abetted, counselled and procured and was directly and indirectly and knowingly concerned in and a party to-such contents." The conduct alleged to have been done in contravention of s.52(1) or of s.53A(1) included procuring the publication of the advertisements referred to in paragraph 5 of the statement of claim and giving to the applicant the pamphlet referred to in paragraph 8 thereof. tix. Glick advanced other submissions against the grant of leave to add paragraph 15A, but I think I should not pass upon them now. Leave to amend in the terms of paragraph 15A will be refused without prejudice to any further application for leave to amend the statement of claim by adding a claim or claims for damages against any respondent upon a cause of action at common law. - It 1s ordered that paragravh 16 of the statement of claim 10. filed 13 December 1980 be amended by inserting after the word was injured and" and that the particulars under the said paragraph 16 be amended by inserting 'applicant" therein the words after the heading "Particulars" therein and before the sub~heading "A. List of Expenses" therein the words following, that ais to say: " PARTICULARS OF INJURIES Moderate to severe anxiety with depression, with nervous ticks marked by tremor and also grimacing of the mouth. PARTICULARS OF ECONOMIC LOSS But for her medical condition the applicant who was born on the 12th July, 1932 would have been able to conduct a business of a similar kind to that which she conducted at the Gladstone Park Shopping Centre and earn a nett annual income of $300.00 from the 17th January 1980 to the present. ~ Alternatively, the applicant would have been employed as a shop assisstant earning (at present rates) the sum of approximately $160 nett per week. In fact, apart from casual work with relatives varying from 1 to 5 days per week for which the applicant 1s not paid otherwise than by receipt of food for her personal use, the applicant has been unable to obtain employment and has accordingly suffered since the 17th January 1980 to the 14th July 1983, a period of 182 weeks at the rate of $160 per week, a loss of $29,120 which loss 1s continuing. PARTICULARS OF LOSS OF EARNING CAPACITY - But for her medical condition the applicant had the capacity to conduct a profitable business of a kind similar to that which she conducted at the Gladstone Park Shopping Centre and she 1s unable to say when her medical condition will-permit her to conduct such a business in the future if ever. Alternatively the applicant would have been employed as a shop assistant but she 1s unable to say when her medical condition will permit her to again commence such employment if ever." It 1s further ordered that save as aforesaid the motion (of which notice was filed 4 July 1983) on the part of the applicant that the applicant have leave to amend the statement of claim be dismissed but that this order be without prejudice to any further or other application on the part of the applicant that she have leave to amend the statement of claim' by adding a claim or claims for damages against any respondent upon a cause of action at common law. I will hear the parties on the question of costs. SE Tee SS PT oo }ocauiy Tl. un el Een fro)