Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Owlstara v State of New South Wales (No 2) [2020] NSWCA 335 Hearing dates: On the papers. Decision date: 16 December 2020 Before: Basten JA; Meagher JA; Emmett AJA Decision: (1) Order pursuant to UCPR, r 36.4 that the judgment for the appellant as plaintiff in the sum of $115,000 entered on 15 September 2020 take effect as at 10 December 2019. (2) Otherwise dismiss the appellant's notice of motion filed on 29 September 2020. (3) Make no order as to the costs of that notice of motion. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3) to vary appeal judgment to include pre-judgment interest – where interest not sought prior to application – whether to backdate judgment to date of decision under appeal Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 101(2)(a) Uniform Civil Procedure Rules 2005, rr 36.4, 36.16(1), (3A) Cases Cited: Austodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590; [1982] HCA 59 Majak v Rose (No 5) [2017] NSWCA 238 Owlstara v State of New South Wales [2020] NSWCA 217 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 Category: Principal judgment Parties: Lytha Owlstara (Appellant) State of New South Wales (Respondent) Representation: Counsel: J C Sheller SC (Appellant) J Kirk SC and D Hume (Respondent) Solicitors: Shine Lawyers (Appellant) Makinson D'Apice (Respondent) File Number(s): 2019/401260 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: N/A Date of Decision: 10 December 2019 Before: Craig QC ADCJ File Number(s): 2016/133717 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: On 15 September 2020, the Court allowed Ms Owlstara's appeal against the dismissal of her claim for damages for assault, battery and false imprisonment by a police officer on 14 September 2013: Owlstara v State of New South Wales [2020] NSWCA 217. The Court ordered that judgment be entered for the appellant as plaintiff in the sum of $115,000, including $60,000 by way of general damages for the three torts, $50,000 as exemplary damages, and $5,000 for future treatment expenses for Ms Owlstara's PTSD condition, which had been aggravated by the incident. 2. By para 1 of her notice of motion filed on 29 September 2020, the appellant seeks that the judgment sum be varied to $123,400 to include interest on the award of general damages ($60,000) at the rate of 2% per annum from the date of the incident to the date of judgment on the appeal. In her written submissions, she provides an alternative justification for the same variation as including interest at 4% per annum for the same period on half of the sum of general damages, on the basis that part of her loss, namely the aggravation of her PTSD condition, was continuing. Alternative orders sought by paras 2 and 3 of the notice of motion, awarding interest from the date of the incident to 10 December 2019, the date of judgment below, and backdating the judgment of this Court to that date, are not pressed. 3. The respondent opposes the making of any order in terms of para 1 of the motion, on the basis that in not making any award of prejudgment interest the Court did not proceed on some misapprehension of the facts or the law. In reality, the appellant effectively seeks to reargue her case for interest on a basis not argued before the primary judge, which also raises issues of fact that were not litigated. Its written submissions conclude that if "the Court has power to reopen and the Court chooses to exercise that power", it does not oppose the rate of interest proposed, namely 2% per annum. 4. The respondent's primary submission should be accepted. However, as appears below, this is a case where the Court through oversight failed to address the appellant's claim in her notice of appeal that any favourable judgment of this Court be backdated to the date of the judgment below. 5. The notice of motion was filed within the Uniform Civil Procedure Rules 2005, r 36.16(3A) period, and r 36.16(1) applies. That rule, which is to be understood by reference to the overriding objective in Civil Procedure Act 2005 (NSW), s 56, has "a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court)": Majak v Rose (No 5) [2017] NSWCA 238 at [12] (Leeming and Simpson JJA, Emmett AJA). 6. Rule 36.16(1) is subject to the same limitations as the Court's inherent power to set aside or vary a judgment or order that has been made but not entered: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [10]. Accordingly, as Mason CJ explained in Austodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6: What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases. 1. It will ordinarily be appropriate to set aside or vary a judgment or orders only where a matter – including, relevantly, a claim which may have been brought – has not been addressed "by accident and without fault" on the part of the party seeking reopening: Autodesk at 302. 2. The appellant's notice of appeal sought the following orders: 1 Appeal allowed. 2 Judgment of the court below be set aside. 3 Judgment for the Plaintiff for $170,000 plus interest from 10 December 2019. 4 The Respondent to pay the Appellant's costs. 5 The Respondent to pay the Appellant's costs of the proceedings below. 1. Consistently with her notice of appeal, the appellant's written and oral submissions made no reference to pre-judgment interest. Her written submissions concluded: 67. The appeal should be allowed and a judgment for Ms Owlstara for $170,000 plus interest from 10 December 2019 should be entered. 1. $170,000 was the sum of damages assessed by the primary judge on the hypothesis that the appellant's claims succeeded. On appeal, the dispute between the parties as to quantum was confined to certain components of that award, being the award for aggravation of the appellant's PTSD condition and the "buffer" for future expenses in addressing that condition. Each was ultimately reduced by this Court, the latter from $15,000 to $5,000 and the former, initially $75,000 on its own, included in an overall award of general damages of $60,000. The awards of $50,000 as exemplary damages and $30,000 as compensation for interference with the appellant's rights to liberty and bodily integrity (ultimately included in the award of general damages) were not contested. 2. Although the primary judge noted "an entitlement to interest had [the hypothetical sum of $170,000] been awarded", his Honour did not specify which components of the award that entitlement concerned: Owlstara v State of New South Wales (unreported, NSWDC, Craig ADCJ, 10 December 2019) at [214]. None of the arguments on appeal with respect to quantum was made with a view to distinguishing between the components of the award that would and would not properly be the subject of pre-judgment interest. As the appellant's submissions in support of her notice of motion reflect (see above at [2]), an award of pre-judgment interest would raise questions not previously addressed as to when the injury constituted by the aggravation of her psychiatric condition was suffered. 3. So far as pre-judgment interest is concerned, the orders of this Court do not reflect any error or misapprehension not attributable to the party seeking their variation. The appellant sought judgment for $170,000, plus interest from 10 December 2019, in the event that she was successful on appeal. She might have sought, but did not seek, a larger award that included interest from the date of the incident on some parts of that sum. The appellant is not entitled now to obtain more favourable orders merely because she has had the opportunity to reconsider her position after judgment. The importance of finality in litigation is a consideration not lightly put to one side: see eg Autodesk at 302; Rockcote at [9]; Majak at [13]. 4. However, the position is otherwise so far as the date of judgment is concerned. The combined effect of UCPR, r 36.4 and Civil Procedure Act, s 101(2)(a) is that the court is able to backdate a judgment or order so that it takes effect before it was given or entered, with the consequence that post-judgment interest is to be calculated from that date. As the notice of appeal and her written submissions on the appeal reflect, the appellant sought that the judgment of this Court be backdated to the date of judgment below for that purpose (see above at [8], [9]). The appellant does not press the orders in her notice of motion which involve backdating the judgment to 10 December 2019, but those orders are formally sought. It is open to the Court to make the relevant order under r 36.16 or, in the alternative, r 36.17: compare L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590; [1982] HCA 59. 5. As has already been explained, the argument on appeal as to quantum was conducted by reference to the hypothetical award that the primary judge would have made, which, save in so far as it concerned the appellant's PTSD condition, both parties accepted. It was accordingly appropriate that the appellant sought an order backdating the judgment of this Court to the date of judgment in the District Court. The respondent's submissions on appeal do not include any objection to that course. 6. Although the appellant has not achieved success on her notice of motion as pressed, she is entitled to the exercise of the Court's discretion under r 36.16 in respect of the date from which this Court's judgment should take effect. In the circumstances each party should bear her or its own costs of the motion. 7. Accordingly, the Court makes the following orders: 1. Order pursuant to UCPR, r 36.4 that the judgment for the appellant as plaintiff in the sum of $115,000 entered on 15 September 2020 take effect as at 10 December 2019. 2. Otherwise dismiss the appellant's notice of motion filed on 29 September 2020. 3. Make no order as to the costs of that notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2020