Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 2)

1. [1]

   HIS HONOUR: On 17 March 2020, the Court issued and entered orders finalising the proceedings and reserved one issue raised by the plaintiff by Motion on notice, relating to personal injury damages said to have been suffered by one of the consumers.

2. [2]

   At the hearing of the Motion and the proceedings for the making of final orders, the plaintiff did not press the order sought by the Motion relating to [557] of the Court’s judgment of 31 December 2019. The Motion was filed and agitated at a point in time before entry of judgment. Further, the plaintiff’s Motion was filed within 14 days of the judgment, being a reference to the Reasons for Judgment delivered by the Court. [1]

Jurisdiction of the Court

1. [3]

   It is necessary to more clearly state the timing of the Reasons for Judgment, the orders of the Court and the Motion. On 31 December 2019, the Court directed the plaintiff to serve the defendants with a draft minute of order reflecting the Reasons for Judgment that had been delivered. That draft minute was to have been served on or before 10 February 2020 and to be sent to the Court by 24 February 2020, together with any note relating to any agreement that had been reached in relation to said orders.

2. [4]

   In the absence of any agreement, the defendants were to have filed any proposed minute of order prescribing that which they submitted reflected the Reasons for Judgment by 4 PM on 24 February 2020.

3. [5]

   On 26 February 2020, the Court directed the defendants to file any submissions on any matter, other than a stay pending appeal, by 9 March 2020. The Court also directed that the plaintiff respond by submissions to be filed by 6 March 2020. The issues raised on the applications and the nature of the orders finalising the proceedings were listed for hearing before the Court, as presently constituted, on 17 March 2020.

4. [6]

   At the hearing on 17 March 2020, the defendants appeared by teleconference. After hearing the parties on any further submissions, beyond the written submissions, the Court made orders in or to the effect already noted. Notwithstanding the withdrawal of the plaintiff’s Motion, the Court reserved on the “correctness” of [557] of the Reasons for Judgment in the substantive hearing.

5. [7]

   It was clear from the proceedings on 17 March 2020 that the defendants had appealed the whole or substantially all of the judgment issued by the Court. On one view, that appeal may have been premature, given that judgment had not issued, but Reasons for Judgment had.

6. [8]

   The Motion that was withdrawn on 17 March 2020 was a Motion, notice of which was filed on 6 January 2020, namely, within 14 days of the delivery of the Reasons for Judgment and before the entry of judgment.

7. [9]

   The original Motion relied upon the inherent power of the Court to reopen a hearing after judgment. The issue in question was the dismissal by the Court of a claim for compensation for personal injury for one of the consumers, Mr John Pestridge, who, it was said, suffered depression as a result of the conduct of the defendants, which the Court accepted.

8. [10]

   As a consequence of the foregoing timing, the Motion to “recall” [557] of the Reasons for Judgment [2] arose at a time when the Reasons for Judgment had issued, but judgment had not and, a fortiori, judgment had not been entered. As already stated, the plaintiff relied upon the inherent power of the Court.

9. [11]

   Courts have implied powers and superior courts of record of general jurisdiction have inherent powers.

10. [12]

    It is trite that reasons for judgment are not the judgment of the court. The judgment of the court is entered and forms part of the record of the proceedings and, at the least at common law, absent statutory expansion, forms the basis for certain writs or orders in the nature of a writ. [3]

11. [13]

    Ordinarily, the reasons for judgment of a court could not form part of the record. The major exception to that course was when, in criminal proceedings, in particular, the judge’s note on an Indictment included the reasons for sentence by express note. The same exception applied in civil proceedings by virtue of the note of the presiding judge.

12. [14]

    Nevertheless, in that case, the reasons for judgment form part of the record because the judge’s note expressly made it so. By virtue of s 69 of the Supreme Court Act 1970 (NSW), reasons for judgment are now part of the record for the purpose of judicial review under that provision.

13. [15]

    There are two quite distinct periods in the issuing of judgment, which periods, at least theoretically, determine the ability to alter judgment or orders. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to such earlier period, the High Court, stated the principle in the following manner:

14. [16]

    On the other hand, after judgment has been entered, there are only three bases upon which a judgment or order may be re-opened and amended and they are:

15. [17]

    In, Bailey v Marinoff, [5] Barwick CJ said:

16. [18]

    In, Bailey v Marinoff, supra, Menzies J said:

17. [19]

    The judgment with which the High Court was dealing in Bailey v Marinoff was the result of self-executing orders, the effect of which was that proceedings were dismissed. The Court of Appeal purported to reinstate the matter into the list, notwithstanding the nature of the orders dismissing the proceedings.

18. [20]

    The High Court also dealt with the issue of the reopening of orders in DJL [7] and said:

19. [21]

    In the broader sense, a court has power to alter reasons for judgment. However, in circumstances where there is a right of appeal, which is in the process of being exercised, the reasons for judgment of a court ought not be altered to vary the judgment in a manner inconsistent with the reason originally issued. There are exceptions, even to that proposition.

20. [22]

    As already stated, the reasons for judgment are not the judgment of the Court. The reasons for judgment may be altered at least as widely as the Court may alter the judgment itself. If, however, the Court has proceeded, to paraphrase the High Court in Autodesk, supra, according to a misapprehension of the facts or the relevant law, which misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing, the Court is entitled to reopen the proceedings.

21. [23]

    There are other bases upon which reasons for judgment may be altered. For example, there may be an infelicitous expression that could be corrected without altering the reasons themselves or the rationale for the judgment.

22. [24]

    Reasons for judgment that are delivered ex tempore are, almost universally, revised. This will occur even in circumstances where the reasons may be inconsistent with that which was originally published.

23. [25]

    It will not happen, however, when the inconsistency alters the intention of the judicial officer in publishing the judgment. Thus, for example, an incorrect insertion of the word “not”, or its omission, may be corrected in revising reasons for judgment. Similarly, a mistaken reference to the plaintiff instead of the applicant, or indeed the defendant may be corrected.

24. [26]

    Over and above all of the foregoing, judgment may issue and be entered before reasons are published, when urgency requires it and the judge has reserved reasons. [9] In the Court of Appeal in Victoria, [10] the Court said:

25. [27]

    Following the judgment of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [11] and, even before then, the foregoing statement should be treated as binding and should be departed from only if the judgment is plainly wrong. It is not, in my view, plainly wrong. Indeed, with great respect to the Victorian Court of Appeal, the foregoing comments are plainly correct and I apply those statements of principle to the application that is currently before the Court.

Consideration

1. [28]

   As a consequence of the foregoing, the Court has jurisdiction or power to recall [557] of the earlier judgment and reconsider the issue. The Court was reluctant so to do, because of the existence of an appeal, which had yet to be heard. The appeal has, now, been heard, although judgment is reserved.

2. [29]

   The terms of the Reasons for Judgment at [557] reflect the provisions of s 72 of the pre-2011 Fair Trading Act 1987 (NSW) (hereinafter “the FTA”). The provisions of s 72(1A) thereof refer to loss or damage arising from a contravention of Pt 5 as not including, relevantly, personal injury. However, the “depression” arose later in time than 2011.

3. [30]

   Moreover, and more importantly, the damages that are said to arise in relation to Mr Pestridge’s depression may also arise under s 43 of the FTA, which is expressly excluded from the exception to loss and damage described in s 72(1A) and to which reference has already been made. As a consequence, the Court’s reliance upon the provisions of s 72(1A) of the FTA to deny to Mr Pestridge damages for personal injury from the unconscionability claim was incorrect.

4. [31]

   The exclusion for damages arising from personal injury does, however, apply to the plaintiff’s case for misleading or deceptive conduct, which arises under s 42 of the FTA. To the extent that the damages would arise in relation only to the successful claim for misleading and deceptive conduct, damages for personal injury would not be available. However, the plaintiff’s success was not so confined.

5. [32]

   Frankly, the Court’s reliance upon the exception in s 72(1A) of the FTA was an incorrect reliance upon damages in relation to unconscionable conduct. Nevertheless, if the Court were required to deal with it on the basis of the unconscionable conduct, other difficulties arise.

6. [33]

   Leaving aside for present purposes the distinction, which has since been overturned, between damages and mere distress, there are significant problems with the claim on behalf of Mr Pestridge. First, the figure of $30,000, which is claimed, is not justified by any submission or any evidence.

7. [34]

   Secondly, the claim itself was not pleaded. There was no medical evidence nor any evidence suggesting that medical attention was sought and obtained in relation to this “depression”.

8. [35]

   The difficulty is that the term “depression” is used both in an ordinary sense and in a technical sense. When the Court accepted that Mr Pestridge had “suffered depression” as a result of the conduct of the defendants, the term was being used in the ordinary English sense and not in the technical sense. There is no evidence before the Court upon which the Court could find, on the balance of probabilities or even as a suggestion, that Mr Pestridge was suffering clinical depression. This raises a more subtle difficulty.

9. [36]

   If, as may now be the case, mere distress can be the subject of an award of damages and mere distress is not clinical depression or a personal injury, then the exemption in s 72(1A) of the FTA may not apply, even in relation to damages arising from unconscionable conduct. Whether the exemption applied would depend on whether “distress” or non-clinical depression was a “physical or mental condition.” [12] I doubt that it is.

10. [37]

    Nevertheless, now that the Court is required to deal more completely with the issue, the Court, as presently constituted, takes the view that there is no evidence of any personal injury such as clinical depression. Nor is there evidence upon which the Court could, on the balance of probabilities, conclude that the level of distress suffered by Mr Pestridge was greater or less than the level of distress that he would otherwise have suffered were it not for the conduct of the defendants. Nor is there evidence which, on the balance of probabilities, discloses distress at a level greater or lesser than any other consumer to which the judgment refers.

11. [38]

    In all of the circumstances, whether or not the Motion would have been or was to be withdrawn, the Court does not consider that the plaintiff has established that Mr Pestridge is entitled to compensation for “depression” and the claim for damages in the amount of $30,000 is denied.

12. [39]

    As a consequence of the foregoing and given that the appeal is reserved, the Court is not minded to withdraw the terms of [557] of the Reasons for Judgment.

13. [40]

    The Court makes the following orders:

    1. (1)

       Proceedings dismissed;

    2. (2)

       No further order for costs.