FEDERAL COURT OF AUSTRALIA Mundraby v Commonwealth of Australia [2000] FCA 666 ELLIS MUNDRABY v COMMONWEALTH OF AUSTRALIA NG 808 OF 1998 DAVID MARK LEWIS v COMMONWEALTH OF AUSTRALIA NG 809 OF 1998 TAMBERLIN J SYDNEY 20 APRIL 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 808 OF 1998 BETWEEN: ELLIS MUNDRABY APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT NG 809 OF 1998 BETWEEN: DAVID MARK LEWIS APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 20 APRIL 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent's Notice of Motion filed on 24 March 2000 be dismissed with costs. 2. The applicant's Notice of Motion filed on 12 April 2000 on be dismissed. 3. The applicant's Notice of Motion filed on 18 February 2000 be stood over until 16 May 2000 at 9.30 a.m. 2. The Commonwealth file a Defence to the Amended Statement of Claim within fourteen days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 808 OF 1998 BETWEEN: ELLIS MUNDRABY APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT NG 809 OF 1989 BETWEEN: DAVID MARK LEWIS APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: TAMBERLIN J DATE: 20 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before me are two Notices of Motion in each of these matters. I will deal firstly with the Motion filed by the Commonwealth on 24 March 2000 to strike out certain paragraphs of the Amended Statement of Claim. Leave to file the Amended Statement of Claim was granted on 10 March this year. The paragraphs inserted by those amendments contain claims for, and particulars of, exemplary damages in par 10(viii), and aggravated damages in par 10(ix). The particulars of aggravated damages simply pick up the same particulars as those given for exemplary damages. 2 The Commonwealth submits that the claims for exemplary and aggravated damages should be struck out because: (a) even if made out the matters pleaded do no more than identify allegations of negligence. They do not identify any conscious wrong-doing, or intentional, reckless, or contumelious conduct on the part of the defendants necessary to sustain a claim to exemplary or aggravated damages; (b) the delay in bringing the claim for exemplary and aggravated damages has caused prejudice to the Commonwealth; and (c) Order 12 r 4(2) of the Federal Court Rules requires particulars of exemplary damages to be given and the particulars provided do not satisfy the Rules. 3 Counsel for the Commonwealth has directed my attention to a number of authorities in relation to exemplary damages. The leading Australian authority being the recent decision of the High Court in Gray v The Motor Accident Commission (1998) 196 CLR 1. The question is discussed in considerable detail by the majority, at 4 – 12, and by Kirby J, who carefully examined the previous law in a concurring separate judgment, at 27 - 36. Counsel for the Commonwealth has also provided a helpful outline of argument which sets out the legal principles in relation to exemplary damages. In particular it emphasises that exemplary damages are rarely awarded. I accept this summary as a useful guide for present purposes. 4 The distinction between compensatory, aggravated and exemplary damages was referred to by the majority in Gray who cited the observations of Windeyer J in Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 149 that: " … aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence." (Emphasis added) 5 Order 12 r 4(2) relates to particulars of claims for exemplary damages. It provides that where a party claims exemplary damages he shall give particulars of the facts and matters on which he relies to establish that claim. I can see considerable force in the submissions advanced on behalf of the Commonwealth that the eight particulars of exemplary damages which have been given do not satisfy O 12 r 4(2). However, on reflection during the course of argument I have come to the view that, although the details given are close to the border line, they are sufficient to satisfy the requirements of the Rules. 6 The statement of claim must be read as a whole and, in this case, the particulars in par 10(viii) must be read with the particulars of negligence given in par 9. When this is done I think that the particulars given are sufficient to satisfy O 12 r 4(2), and to inform the Commonwealth of the nature of the case made against it. This is particularly so having regard to what I know, having been the docket Judge on this matter since its inception, are detailed investigations and examinations of this matter made by the Commonwealth over several years. No doubt during the conduct of the case, when evidence is sought to be admitted, objections will be raised based on the particulars to limit the case as much as possible. If the particulars as furnished at the trial are not made out then the applicants will lose. However I do think they are sufficient to raise the issues. 7 It was put by the Commonwealth that par 10(viii) really pleads a fresh cause of action. The paragraph is not put as a fresh cause of action and I would not so read it. It is simply put as a particular which is sought to be relied on and it is possible, I think, on examination of this paragraph to spell out what needs to be proved in order to make out the particular. 8 In relation to aggravated damages the Amended Statement of Claim gives identical particulars as those for exemplary damages. There is a difference between the two types of damages as I have pointed out, but in this case it is reasonable to limit the applicants case on aggravated damages by reference to the particulars given for exemplary damages. As indicated by Windeyer J in Uren, it is really the intent behind the damages, and the necessary standard of persuasion, which differs between the two. 9 When the amendment was permitted on 10 March this year the matters had been listed for hearing on 5, 6, 7 and 10 April. The Commonwealth sought the vacation of those dates and, during the hearing of the application to amend, Counsel for the Commonwealth stated that if there was an adjournment he could not object to the amendment. Following the filing of the Amended Statement of Claim further and better particulars were sought by the Commonwealth on 11 February 2000. These were provided by letter dated 17 February 2000. It would appear on the material before me that, until the Commonwealth's Motion was filed on 24 March 2000, no objection was taken that the information given in the letter of 17 February was inadequate. 10 In light of this conduct the applicants seek, by Motion dated 14 April 2000, inter alia, a declaration that the Commonwealth is estopped from objecting to the claims for exemplary and aggravated damages. I do not consider that there is any estoppel and I consider that the Court at all times keeps control of the pleadings. It is not appropriate to apply the principles of estoppel in cases such as this. However I do consider that the approach taken by the Commonwealth is a matter to be taken into account when considering whether the claims for exemplary and aggravated damages should now be struck out. 11 The detriment asserted by the applicants in their claim for a declaration of estoppel is that the Commonwealth's concession led to the adjournment of a four day hearing. As I mentioned on 10 March this matter is one which deserves expedition, although it has taken a long time to get to Court. The gravity and importance of the matter to the applicants, and no doubt to the Commonwealth who would wish to have the matter clarified, is of importance. 12 For those reasons, and taking into account the position taken by the Commonwealth particularly on 10 March, I am satisfied that this is a case where the particulars for exemplary damages should not be struck out. I note that the Commonwealth's application refers to striking out the cause of action and that exemplary damage is not itself a cause of action. I have taken the application to relate to striking out the particulars rather than the cause of action. As I have formed the view that they are not necessary in this case this distinction is of no importance. 13 Counsel for the Commonwealth has addressed me on the question of costs and has pointed out that the costs ought to depend on the final determination of the question of exemplary and aggravated damages. I do think, however, that this is a discreet question which has been raised and which can be dealt with independently of the eventual outcome. Accordingly I am not persuaded that the order I have indicated ought be modified in any way. 14 Accordingly I order that the Commonwealth's Notice of Motion be dismissed with costs, that the applicants' Notice of Motion be dismissed, and that the Commonwealth file its Defence to the Amended Statement of Claim within fourteen days. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 19 May 2000 Counsel for the Applicant: D Kennedy SC Solicitor for the Applicant: Szekely & Associates Counsel for the Respondent: G Rundle Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 April 2000 Date of Judgment: 20 April 2000