Mathews v Telstra Corporation Limited
[1998] QCA 407
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- Mathews v Telstra Corporation Limited[1998] QCA 407
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Mathews v Telstra Corporation Limited[1998] QCA 407
Mathews v Telstra Corporation Limited[1998] QCA 407
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9697 of 1998
Brisbane
[Mathews v. Telstra]
BETWEEN:
RUSSELL GORDON HAIG MATHEWS
(Plaintiff) Applicant
AND:
TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
(Defendant) Respondent
Pincus J.A.
Thomas J.A.
White J.
Judgment delivered 4 December 1998
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPLICATION FOR LEAVE TO APPEAL DISMISSED WITH COSTS.
| CATCHWORDS: | CIVIL PROCEDURE - application for leave to appeal against District Court order striking out parts of a plaint - claim for $840 for overcharged phone calls and $249,000 exemplary damages - claim based on unconscionable conduct and claim for exemplary damages struck out - whether plaintiff can recover exemplary damages for losses suffered by others whom the plaintiff does not represent. |
| Counsel: | Applicant appeared on his own behalf. Mr K A Barlow appeared for the respondent. |
| Solicitors: | Applicant appeared on his own behalf Mallesons Stephen Jaques for the respondent. |
| Hearing Date: | 30 November 1998. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9697 of 1998
Brisbane
| Before | Pincus J.A. Thomas J.A. White J. |
[Mathews v. Telstra]
BETWEEN:
RUSSELL GORDON HAIG MATHEWS
(Plaintiff) Applicant
AND:
TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
(Defendant) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 4 December 1998
- This is an application for leave to appeal against an order of the District Court striking out certain parts of a plaint filed in that Court. The claim made by the plaint is for $249,840 and it is in essence based on an assertion that the plaintiff, now applicant, was overcharged $840 for phone calls. The difference between the amount of the alleged overcharge and the amount claimed consists of a claim for exemplary damages in the sum of $249,000. The parts of the pleading which have been struck out relate principally to two matters. First, they relate to assertions that the defendant Telstra, now respondent, acted unconscionably in a morally reprehensible manner; secondly, they relate to the claim for exemplary damages. The judge’s reasons for striking out these parts of the claim were as to unconscionable conduct, that his Honour took the view that the matters pleaded did not sufficiently raise a case of unconscionability on the part of the respondent; as to exemplary damages, the judge held that the plaintiff’s case was that exemplary damages should be awarded because of the defendant’s conduct towards persons other than himself and that it therefore could not succeed.
- The task of the courts in dealing with pleadings which are not professionally drawn is not always an easy one. On the one hand, it is undesirable and can be unfair to the pleader’s opponent to bring on trials of issues which are inadequately defined. On the other hand, one could not reasonably expect every unrepresented litigant to produce a pleading which is of a proper standard. In the present case, the respondent applied to strike out the pleading completely and, in the circumstances, there would have been something to be said for that course. What the judge did was to reject that application and make an attempt to trim the pleading so as to include in it only the points which could reasonably be argued. This Court does not undertake routinely to supervise the exercise of the District Court’s power in respect of the form of pleadings. It is not able to be suggested, in the present case, that the judge’s approach involved any manifest legal error or that it is likely to produce injustice.
- With respect to exemplary damages, the basis of the claim made in the pleading is not as clear as it might be; but the judge was justified in proceeding on the basis that the exemplary damages claimed are intended to deprive the respondent of the revenue it gained by overcharging its customers throughout Australia in the fashion of which the applicant complains. It is not the function of exemplary damages to award to an individual plaintiff, not only his own loss, but all similar losses suffered by others who might have claimed. The claim based on unconscionable conduct appears to me to be founded on s. 51AA of the Trade Practices Act 1974. The applicant has selected the factor mentioned in s. 51AB(2)(a):
"the relative strengths of the bargaining positions of the corporation and the consumer".
As the primary judge pointed out, that matter is not, in the plaint, related to the particular circumstances pleaded; there is nothing in the pleading to suggest that the applicant complains of the way in which the respondent bargained with him.
- The applicant argued his case before us orally, but in doing so simply emphasised the points made in his affidavit of 20 October 1998 which is in the record. The main points made there are that exemplary damages can be awarded in the tort of deceit and that it is very improbable that all the subscribers who have been overcharged would make their own claim. The former point does not assist the applicant, for the difficulty about the exemplary damages claim is the content of the claim, not the alleged wrong to which it is sought to be attached. As to the unlikelihood of all those wronged making their own claim, it is unnecessary to elaborate further the point made above, that there is no principle of law entitling a plaintiff to recover as exemplary damages losses suffered by others whom the plaintiff does not represent.
- The primary judge’s reasons dealt with other aspects of the pleading than the two principal points which have been discussed above; however, none of those other aspects is of sufficient significance to warrant a grant of leave to appeal.
- I would dismiss the application for leave, with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9697 of 1998
Brisbane
| Before | Pincus JA Thomas JA White J |
[Mathews v Telstra]
BETWEEN:
RUSSELL GORDON HAIG MATHEWS
(Plaintiff) Applicant
AND:
TELSTRA CORPORATION LIMITED ACN 051 775 556
(Defendant) Respondent
REASONS FOR JUDGMENT - THOMAS JA
Judgment delivered 4 December 1998
- I agree with the reasons of Pincus JA and with the orders which he proposes.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9697 of 1998
Brisbane
| Before | Pincus JA Thomas JA White J |
[Mathews v Telstra]
BETWEEN:
RUSSELL GORDON HAIG MATHEWS
(Plaintiff) Applicant
AND:
TELSTRA CORPORATION LIMITED ACN 051 775 556
(Defendant) Respondent
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 4 December 1998
- I agree with Pincus JA that the application for leave to appeal should be dismissed for the reasons which he gives.
- As his Honour mentions, the applicant relied upon his affidavit filed on 20 October 1998 in which he complains that the decision of French J in Musca v Astle Corporation Pty Ltd (1988) Aust Torts Reports 80-171 being directly on point with respect to exemplary damages ought to have been made available to the learned judge below and should guide the outcome of this application. In that case his Honour concluded that exemplary damages might be awarded in Australia in an action in deceit, a conclusion which was not then governed by binding or persuasive authority. His Honour’s statements of legal principle do not assist the applicant because exemplary damages are directed to the contumelious disregard of a plaintiff’s rights and not other possible plaintiffs’ rights which is the basis of the applicant’s claim which was recognised by his Honour below and for that reason struck out.
- Neither were there any facts pleaded which would justify the retention of a claim for aggravated damages.