MBP (SA) Pty Ltd v Gogic [1991] HCA 3

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. MBP (SA) Pty Ltd v Gogic [1991] HCA 3

ORDER Application for Special Leave to Appeal from Full Court. Application for special leave to appeal refused. Order that the applicant pay the respondent's costs of the application. Application for Special Leave to Appeal from Cox J. Application for special leave to appeal granted. Appeal allowed. Vary the judgment of the Supreme Court of South Australia by deleting the award of interest for pre-trial non-economic loss. Remit the matter to the Supreme Court of South Australia to reassess the interest for pre-trial non-economic loss in accordance with the judgment of this Court. Order that the applicant pay the respondent's costs of the application.

Cur. adv. vult.

The Court delivered on the following written judgment:—

1991, Feb. 26 Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

This is an application by a defendant in an action for personal injuries for special leave to appeal against a judgment for the plaintiff in the sum of $107,776, being made up of an award of damages of $85,776 and interest of $22,000, entered by the Supreme Court of South Australia (Cox J.). The ground of the application is that his Honour wrongly awarded interest on damages for pre-trial pain and suffering at a commercial rate of interest. In awarding interest on this basis, Cox J. was giving effect to an answer to a question in a case stated by him to the Full Court of the Supreme Court of South Australia. This Court heard argument on an application for special leave to appeal from the judgment of the Full Court on the case stated. However, because of the decisions in Fisher v. Fisher [16] and Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation [1] , a question arose as to whether the Court had jurisdiction to hear an appeal from the Full Court judgment: see now O'Toole v. Charles David Pty. Ltd. [2] . The application in that matter was stood over and listed for hearing with the present application. When the application came on for hearing, the Court decided to hear the present application instead of the application for special leave to appeal from the judgment of the Full Court because the real issue between the parties can be resolved in the present application without the necessity to determine the jurisdiction question which would otherwise have arisen.