MITCHELL vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and CRIPPS JJA 30 November 1992, 19 February 1993 [1993] NSWCA 183 COURTS AND JUDGES — Circumstances in which the court will exercise its discretion to reopen a case — Damages assessed and confirmed on appeal — not a jury trial — judgment not yet entered — supervening decision of the High Court changes the basis upon which the assessment was made. Held: The discretion should only be exercised in circumstances in which no different evidence would have been led reflecting the impact of the new decision and where the trial would not have been conducted in a materially different fashion. Even where this is so, given that the interests of justice are most often served by maintaining the finality of proceedings, exceptional circumstances are required to be shown as to why the discretion should be exercised. It was relevant that the exercise of discretion did not have the effect that a new trial before a jury would be required. All that was involved was a reassessment of damages by the Court. CONSENT ORDERS — Nature of a consent order — distinction between a consent order and an agreement between the parties as to the quantum of an item of an award litigated before the court. Clarke JA The claimant has sought an order that the orders made by this Court on 6 November 1992 be set aside and that there be a rehearing of so much of the claimant's appeal as related to the award for gratuitous assistance given to the plaintiff in respect of specified periods. In view of the unusual nature of the application and the somewhat complicated circumstances it is desirable that I provide a short history of the action. The claimant was involved in a motor vehicle accident on 30 July 1986 and suffered severe injuries. He sued to recover damages in respect of those injuries and at the trial in November 1989 liability was not contested. Damages were assessed by Master Greenwood at $723,500 but the learned Master deferred entering judgment because of the possibility of an order being made under the Protected Estates Act ("the Act"). Such an order was made in due course and on 15 June 1990 judgment was entered for the claimant in the sum of $760,153.87 (the difference between the two sums represented the addition of management fees) and it was ordered that this sum be paid into court to be paid out to the Protective Commissioner. The claimant appealed against this judgment. One of the grounds of appeal was against the dismissal by the learned master of a substantial part of a claim in respect of past and future domestic assistance rendered gratuitously by the claimant's wife and other members of his family. The learned Master took the view that this assistance, both in the past, at the present and in the foreseeable future would come squarely within the principle of Kovac v Kovac (1982) 1 NSWLR 656. However, he also concluded that at the age of 55 the claimant's condition would have deteriorated to such an extent that it would be appropriate to allow him the cost of domestic assistance from then on. Accordingly, the learned Master awarded compensation in respect of this claim only in respect of the period after the claimant reached the age of 55 years. 2 UNREPORTED JUDGMENTS Upon the appeal counsel for the claimant submitted that the rejection of the claim was erroneous and that the claimant was properly entitled to compensation in accordance with the Griffiths v Kerkemeyer ((1977) 139 CLR 161) principle. This Court (constituted by Mahoney, Clarke JJA and Hope AJA) rejected this ground of appeal and upheld the Master's conclusion. However, the court upheld other grounds and allowed the appeal. The alteration of the judgment sum had an effect upon the allowance for management fees which could not be conveniently calculated by the court. Accordingly, it was ordered that the appeal be stood over to allow the parties to calculate the amount of any additional fees which should be included in the judgment which was to be entered. The matter next came before Mahoney JA on 22 October 1992 but on that day the matter was adjourned because of confusion between the parties as to the correct amount of the judgment. On that date Mahoney JA indicated to the parties that it was his view that if the parties sought orders by consent he would consider the making of such orders so as to dispose of the appeal but that if the proceedings could not be dealt with by consent it would be necessary for the matter to be relisted before the court as originally constituted so that outstanding issues could be determined and appropriate orders made. The matter came before Mahoney JA once more on Friday 6 November 1992 when senior counsel for the claimant handed to his Honour a document entitled "Agreement between the parties following determination of the appeal". His Honour drew the conclusion from information provided to him, and what appeared in a letter dated 29 October 1992, that the parties wished him to make the orders set out in the agreement by consent. Accordingly, his Honour made, by consent, the orders which were set out in paraS and 6 of the agreement. Those orders read: 5. It is agreed between the parties that consequent upon the determination of the appeal: (a) the judgment previously entered for $802,276.87 shall be increased by $94,861 in accordance with the decision of the Court of Appeal, and by a further $4,827.38 being the agreed management fees payable to the Protective Commissioner, in respect of the additional amount awarded by the court of appeal. 6. Accordingly, the parties further agree that the judgment in the court below should now be varied by substituting for the amount of $802,276.87, the amount of $901,965.25 and agree that an order should be made that the opponent pay the claimant's costs of and incident to the appeal. (The judgment sum which I earlier mentioned appears from the reasons for judgment of Hope AJA and the difference between that figure and the amount referred to in para5 of the agreement between the parties was explained in paral of that agreement as having resulted from a correction to the judgment under the slip rule.) Unbeknown to the claimant's legal advisers the High Court delivered judgment in Van Gervan v Fenton on 28 October 1992, which judgment effectively reversed the judgment of this Court in Kovac (supra). Once Senior Counsel became aware of that decision the claimant filed the present notice of motion seeking an order that this court reconsider that part of the reasons for judgment of Hope AJA in which the claim made for gratuitous services was substantially rejected. WRICHELL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB Two further matters should be noted. First, on 31 October 1992 Hope AJA's commission ended and from that time it was no longer possible to reconstitute the original court. Secondly, the notice of motion was filed prior to the entry of the judgment. The notice of motion came before me, sitting alone, on Monday 30 November 1992. At that time counsel for the opponent submitted that the matter ought to be heard and determined by Mahoney JA in the first instance for the reason that he directed the entry of the judgment. At that time I expressed the opinion that there was no necessity for Mahoney JA to hear the motion and I adhere to that view. It was then said that it should be heard by the same court as previously constituted and that if that court could not be constituted it should not be entertained. After this submission had been made the matter was stood down in the list until a full bench (constituted by Clarke, Handley and Cripps JJA) was constituted when the hearing of the motion took place. There is no doubt that the court is empowered to set aside or vary the judgment insofar as the notice of motion was filed before the entry of the judgment of this Court (see SCR Pt40 r9). Although it may be that a judge of appeal has power to make the orders sought in the notice of motion it would seem to me that, having regard to the nature of the order sought, it is preferable that the application be dealt with by a court constituted by three judges. The fact that the court cannot be constituted as it was for the hearing of the appeal does not present, in my opinion, any impairment to the making of the orders sought (see generally State Rail Authority of NSW v Codelfa Constructions Pty Ltd (1981-82) 150 CLR 29 at 45). The substantial question which has been argued is whether the court should exercise its jurisdiction under the rule to permit the re-opening of the case. A statement of the relevant principles which should guide the court appears in the recent judgment of the High Court in Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605 at 608. A primary consideration is the public interest in maintaining the finality of litigation and, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review (Smith at 608; Marinoff v Bailey (1970) 92 WN (NSW) 280 at 284; National Benzole Co Ltd v Gooch (1961) 1 WLR 1489 at 1492-4). Another matter which may be relevant is the availability of an appeal. The claimant's submission is that the court acted on the wrong principle in rejecting so much of the appeal as related to the claim under Griffiths v Kerkemeyer and that the interests of justice weighed heavily in favour of allowing the case to be reopened so that a judgment could be given which was correct in law. Counsel relied, by way of analogy on the decision of the English Court of Appeal in Bastow v Bagley and Co Ltd (1961) 1 WLR 1494. In that case one division of the Court of Appeal dismissed an appeal on the ground of inadequacy from an award of Pounds 1,150 general damages for loss of an eye. Two days later another division of the court awarded, in broadly similar circumstances, Pounds 2,000 for the loss of an eye to a plaintiff who had been awarded only Pounds 850 by the trial judge. Thereupon the first appeal was restored to the list for further hearing, final judgment not having been entered. The court concluded that the disparity between the award of Pounds 2,000 and the award then under review was too great to be just and fair to the plaintiff in all the circumstances and allowed the appeal despite the previous indication that it would be dismissed. Counsel for the opponent sought to resist the motion on a number of grounds. First, he submitted that the failure of the claimant's counsel 4 UNREPORTED JUDGMENTS to argue that Kovac was wrongly decided should conclude the matter against the claimant upon the basis of the principles enunciated in Piening v Wanless (1967-8) 117 CLR 498 at 506-9. In that case Menzies J said (at 509): "In my opinion the verdict in the trial which was conducted upon one basis cannot be set aside merely because the decision, upon which counsel presumably relied in determining how he would conduct his case, has been over-ruled subsequently. It is for counsel to determine whether or not he will challenge or accept a decision which stands in his way, and, having accepted it, his mistaken acceptance cannot be made the basis for setting aside any verdict which is returned by the jury upon the case submitted to them in order that a new, and some ways, an inconsistent case... can be submitted to another jury." Counsel pointed out that in this case there was no challenge to Kovac, either at first instance or in the appeal, and he submitted that although the claimant had challenged the Master's decision in respect of the Griffiths v Kerkemeyer claim his acceptance of Kovac precluded him from having the case reopened so that his damages could be assessed in accordance with the principles expressed in Van Gervan. Piening was followed in a number of cases - Eggins v Broomshead Bowling and Recreational Club (1986) 5 NSWLR 521; Morawski v State Rail Authority (1988) 14 NSWLR 374 and Calin v Greater Union Organisation (1991) 65 ALJR 426 at 428 - and in each of those cases, which involved trials by judge and jury, an important consideration was the need for finality of litigation. The course of the trial and the failure of a party to seek an appropriate direction or raise a point was also regarded as of importance. But in these cases the appellant was seeking a new trial of the action and, as McHugh JA said in Eggins (at 524), new trials are an "enormous evil". Nonetheless there is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point of law during the trial. The court retains a discretion to make such an order if in its opinion the interests of justice require that that course be taken (see Bright v Sampson and Duncan Enterprises Ltd (1985) 1 NSWLR 346). The present case does not concern a jury trial. The claimant appealed upon the basis that the learned master had erred in assessing the damages and had made an inadequate award. Further, the claimant did not confine himself to one alleged error but contended that the trial judge had made a number of mistakes. One of those mistakes concerned the rejection of the claim based upon Griffiths v Kerkemeyer. Although this contention was rejected the court concluded that the appeal should be upheld for other reasons and the damages reassessed. Accordingly the point under consideration is relevant only to the reassessment of the damages. In these circumstances in my opinion the principles discussed in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (see also O'Brien v Komesaroff (1982) 150 CLR 310 at 319; Coulton v Holcombe (1986) 162 CLR 1 at 8; and Bank Commerciale SA, en Liquidation v Arkhill Holdings Ltd (1989-90) 169 CLR 279 are of greater relevance than the line of cases following Piening. In broad terms the principle that Suttor laid down is that where a party does not take a point during the hearing of the trial he or she will be able to raise that point on appeal only if there is no possibility that evidence could have been led by the other party which defeated, or, arguably, was relevant to, the point sought to be raised for the first time on appeal. Where, however, the relevant point was one of law to be decided upon facts either admitted or proved beyond controversy Suttor holds that it is, generally speaking, expedient in the interests of justice to entertain the point. WRICHELL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB In my view the course which should be followed in this application involves the taking of two steps. The first is to determine whether the court would have permitted the point now sought to be raised to be taken during the hearing of the appeal in the circumstances that during the trial the claimant had neither argued that Kovac was wrong nor sought to reserve the correctness of the decision in Kovac. Secondly, if the answer to the first question is in the affirmative, whether the court should exercise its power to allow the point to be taken notwithstanding that judgment had been given but not entered. It is reasonably clear to me that if there is any possibility that evidence could have been led by the opponent which may have effected an assessment of the Griffiths v Kerkemeyer claim in accordance with the law as expressed in Van Gervan the present application should be refused. Even if the opponent could establish only the possibility that it would be prejudiced if the claimant was permitted to rely on Van Gervan it may be that the application should be refused. Where, however, it is clear that no different evidence would have been led if the principles expressed in Van Gervan had been the received law at the time of the trial and there is no suggestion that the cross-examination of the opponent's counsel would have been conducted differently the interests of justice would favour the grant of the application to permit the court to assess the damages in accordance with the correct principles. For this reason the first question which arises is whether the trial might have been conducted differently. The claimant led all the evidence on which he wished to rely during the trial and sought to claim damages assessed upon the basis that the assistance actually received by him constituted his relevant needs. Although his counsel did not argue that Kovac was wrong he did seek to limit the area of its operation. For his part counsel for the opponent sought, successfully as it turned out, to argue that nearly the whole of the claim was covered by Kovac and therefore should not be allowed. In these circumstances I am unable to see that there was any possibility of additional evidence being led by the opponent or that there is a realistic prospect that it would have conducted its case differently. Furthermore, counsel for the opponent during the hearing of this application has not suggested that any other evidence might have been led. Nor did he point to any factual issue upon which it may have been open to the opponent to lead other evidence. In those circumstances it would have been appropriate for the court to have proceeded to determine whether the claimant should have been allowed to have his damages reassessed in accordance with the principles in Van Gervan in the light of the fact that all the relevant evidence was before the court and appropriate findings had been made by the learned Master. I would conclude, therefore, that if application had been made for leave to rely on Van Gervan during the hearing of the appeal this Court would have been disposed to grant that leave. The next question is whether the fact that the application was not made until after judgment had been given would lead to a different conclusion. It is beyond question that the reason why the claimant's legal advisers did not seek to re-open the damages appeal prior to the giving of judgment is that they were unaware that the High Court had delivered judgment in Van Gervan in the previous week. I do not think it could be suggested that there was any degree of negligence on their part in this respect and I think it must be accepted that they agreed to the making of the orders unaware that Van Gervan had been decided. In the circumstance that in one respect the damages had been reassessed otherwise than in accordance 6 UNREPORTED JUDGMENTS with the correct principles the interests of justice (subject to what appears below) are better served by reopening the appeal and permitting the claimant to put further submissions to the court (based on Van Gervan). The opponent submitted, however, that there were no exceptional circumstances in this case and that the court should not permit the re-opening of the matter. It is implicit in this submission that the court would not interfere unless there were exceptional circumstances and I tend to agree that, generally speaking, this is correct. However, in my view the circumstances are sufficiently exceptional to permit of the re-opening. The opponent also submitted that it was not open to the court to reconsider its judgment for the reason that the orders finally made were consent orders. For present purposes I am prepared to assume that if the parties had resolved their differences and the agreement which was handed up to Mahoney JA constituted a contract between the parties for which each had given valuable consideration the court would not now intervene (see Paino v Hofbauer (1987) 13 NSWLR 193 at 200). However, I do not think it is possible to construe that agreement as a contract between the parties. None of the differences which led to the appeal were resolved amicably by the parties. The court was called upon to decide, and did decide, all the issues raised in the appeal. The court did not, however, give final judgment at once for the reason that the reassessment of the damages necessitated an alteration in the management fees and the court was not in a position to effect that alteration. Clearly enough if the court had been given the precise amount of the additional management fees on the day when it gave its reasons it would have proceeded to give judgment. What in substance was agreed between the parties was the amount of the management fees payable as a consequence of the reassessment of the damages. The judgment which Mahoney JA formally recorded was a judgment which reflected the reassessment of the court. The agreement concerning the management fees was incidental to the judgment and avoided the necessity for the court to carry out the calculation. It was not in any sense a compromise judgment and presents no barrier to the present application. There is a further difficulty with the opponent's submissions which, in view of the conclusion I have just expressed, it is unnecessary to resolve. On 24 September 1992 orders were made by Powell J that the claimant's estate be subject to management under the provisions of the Protected Estates Act 1983 and that the management of the estate be committed to the Protective Commissioner. On the same day his Honour declared that the claimant was a person who was incapable of managing his affairs. There is no suggestion in the evidence that the Protective Commissioner consented to any compromise of the claimant's claim and appeal and it is difficult to see in these circumstances how the agreement could be binding on the claimant if it was truly a compromise agreement (s4 - Damages (Infants and Persons of Unsound Mind Act 1929). For these reasons I am of opinion that the application to re-open should be granted. As I previously indicated Hope AJA has now formally retired and it will be necessary for another bench to be constituted. In these circumstances the matter should be remitted to the Registrar for the purposes of fixing a hearing date. The opponent should pay the claimant's costs of the motion. Handley JA I agree with Clarke JA. Cripps JA I agree with Clarke JA. 1. Application allowed. WRICHELL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAY 2. The matter is remitted to the Registrar for the purposes of fixing a hearing date. 3. The opponent to pay the claimant's costs of the motion. 5 _ Representation Counsel Claimant: GB Hall QC and CJ Whitelaw 10 Opponent: HG Shore Solicitors Claimant: JT Hassett and Co, Lidcombe 15 Opponent: Solicitor for the GIO.