Christopher Mendola v Anthony Warren [1993] ACTSC 79 (17 August 1993)

SUPREME COURT OF THE ACT

CHRISTOPHER MENDOLA v. ANTHONY WARREN
No. SCA179 of 1992
Number of pages - 3
Application to amend notice of appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ, Gallop and Higgins JJ

CATCHWORDS

Application to amend notice of appeal - appeal from Master - notice filed after hearing of appeal but before judgment - re-opening of appeal - general power of Court to grant leave to amend notice of appeal - whether error shown.

Supreme Court Rules, 0.32 r.1, 0.61A r.6, 0.61A r.11

HEARING

CANBERRA, 30 July 1993
17:8:1993

Counsel for the Appellant: Mr. B. Salmon, QC

with Mr. G. Clark

Solicitors for the Appellant: Maliganis Edwards Johnson

Counsel for the Respondent: Mr. A. Leslie, QC

Solicitors for the Respondent: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
The application be dismissed with costs.

DECISION

MILES CJ, GALLOP AND HIGGINS JJ This is an application to amend a notice of appeal filed on 25 November 1992. The appeal was against a finding by the Master of contributory negligence on the part of the appellant and against the quantum of damages awarded.

2. The appeal was heard by a Full court and on 4 June 1993 was listed for judgment. However, on that date and before judgment was handed down, counsel for the appellant made an oral application to amend the notice of appeal and, by implication, for leave to reopen the appeal so as to allow further argument on the amended notice of appeal. The application was then stood over for argument on a date to be fixed.

3. Subsequently, on 9 June 1993 a notice of motion was filed seeking to amend the grounds in the notice of appeal to include a ground that the award for past loss of income earning capacity was inadequate. The amendment also sought that the case be remitted to the Master "for clarification in respect of the award for loss of earning capacity".

4. On the hearing of the application, counsel for both parties agreed that, if the Court were minded to grant the application, the hearing could be treated as the further hearing of the appeal as on the amended notice of appeal.

5. No affidavit has been filed to explain the reason why it was not sought to argue the proposed new ground on the hearing of the appeal. However, it is accepted that no one noticed the alleged error of the Master in relation to loss of past earning capacity until the appellant's solicitor did so almost immediately before the Court was about to hand down judgment on 4 June 1993.

6. Although there appears to be no particular rule for the amendment of a notice of appeal, 0.32 r.1 clearly gives the Court a general power at any stage of proceedings to grant leave to a party to amend any document. There is no doubt that an appeal from the Master under 0.61A r.6. is a proceeding for that purpose. Furthermore, 0.61A r.11 provides in general terms that the provisions of the Rules apply, so far as is practicable, to appeals from judgments of the Master.

7. The Court heard full argument on the appeal before judgment was reserved. Hence, at this very late stage, the likelihood of error on the part of the Master needs to be clearly demonstrated before leave may be granted for the appeal to be reopened on a new ground.

8. In the relevant part of his judgment, the Master said as follows:

"It is clear from what I have set out above that in my opinion the
plaintiff has not, since the accident, been capable of
returning to
work as a butcher, and that he never will be. I am not therefore
persuaded by the forceful arguments of counsel for the
defendant that
there should be no award for past economic loss
after mid 1988. But
part of the reason why he has been out of work for part of the time
since March 1991 has been his own personal choice to move from one
place to another. On the other hand, what is being measured,
even in
the past, is a loss of income earning capacity, of which the actual
loss is a measure. The evidence supports the assumptions
on which the
figures used in Table A of the Statement of Particulars
were based.
But those figures are gross figures. It is not possible
to calculate
tax on them accurately, but because the final figures is (sic)
a matter
of judgment anyway perhaps it is not necessary to do so. I award
$35,000 for past loss of income earning capacity. Using
a rate of 7
percent as an indicator, I award $16,500 for interest on that past
loss."

9. It was submitted on behalf of the appellant that the Master's award for loss of past earning capacity was based on figures which the Master thought to be gross earnings before tax, whereas the true nature of the figures is that they were net after tax.

10. Table A, to which the Master referred and which it is not necessary to reproduce in these remarks, consists of a number of columns of figures for the tax years 1985/6 to 1992/3. The figures show actual and estimated gross income before tax, the difference between actual and estimated gross income, and "net notional loss" after applicable tax rates. The total "net notional loss" over the period of those years is shown as a figure of $59,062.

11. Counsel for the applicant submits that the master's reference to "those figures" being "gross figures" in an obvious error, because the total figure of $59,062, and all other figures making up the total in the column marked "net notional loss", are clearly net after tax. Counsel further submits that the reduction of the total on that figure down to an award of $35,000 for loss of past earning capacity makes the error manifest.

12. However, we are not so convinced. It is consistent with the Master's reasoning that this reference to "those figures" is a reference to the figures in the column marked "gross income", notwithstanding his statement that it "is not possible to calculate tax on them accurately". Furthermore, as the Master clearly and correctly appreciated, the award for loss of past earning capacity was not to be made as a simple exercise in arithmetic by deducting actual net earnings from net earnings expected but for injury. There has to be discount for factors such as the appellant's choice to move from one place to another during the period. The amount of discount was largely a matter of discretionary judgment. We are not convinced that the award of $35,000 displays, in the light of Table A, a likelihood of error.

13. It is not necessary to decide whether the master's error was such that it could have been correct by him under the "slip rule", 0.32 r.14.

14. We would dismiss the application with costs.