Blaxter v The Commonwealth - [2007] NSWSC 88

CITATION: Blaxter v The Commonwealth [2007] NSWSC 88
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 06/09/06

JUDGMENT DATE :
16 February 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Orders as to interest and costs.

CATCHWORDS: DAMAGES: - rate of interest on past general damages - interest on costs - costs of earlier application for extension of time - costs in proceedings generally

LEGISLATION CITED: Supreme Court Act 1970 NSW
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED: Blaxter v The Commonwealth [2005] NSWSC 941
Blaxter v The Commonwealth [2006] NSWSC 744
Simonious Vischer & Co v Holt & Thompson [1979] 2NSWLR 322
MBP (S.A.) Pty Limited v Gogic (1990 - 1991) 171 CLR 657
Luntz, Assessment of Damages for Personal Injury & Death (4th ed.)
Holt v Wynter (2000) 49 NSWLR 128
Commonwealth of Australia v Smith [2005] NSWCA 478
Commonwealth of Australia v Stankowkski [2005] NSWCA 106
R A Smith v Commonwealth of Australia [2006] NSWSC 796
Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81
Brittain v Commonwealth of Australia (No 2) [2006] NSWSC 528
Rosniak v Government Insurance Office (1997) 41 NSWLR 608

PARTIES: Lawerence Gary Blaxter (plaintiff)
The Commonwealth of Australia (defendant)

FILE NUMBER(S): SC 20777/1997

COUNSEL: A G Melick SC (plaintiff)
R E Williams QC with I McLachlan (defendant)

SOLICITORS: James Taylor & Co (plaintiff)
Australian Government Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 16 February 2007

20777/1997 Lawerence Gary Blaxter
v
The Commonwealth of Australia
FURTHER SUPPLEMENTARY JUDGMENT

1 HIDDEN J: After delivering my supplementary judgment in this matter: [2006] NSWSC 744, I heard submissions about some outstanding questions relating to interest and costs.

Interest on General Damages

2 In my original judgment I awarded the plaintiff interest at 2% on 70% of the general damages: [2005] NSWSC 941 at par [54]. Nevertheless, Mr Melick SC, for the plaintiff, made a submission about the assessment of interest which, I must confess, I had initially misconceived. He accepted that the commencement date for the calculation of interest must be 1 July 1972, the date on which the Supreme Court Act 1970 came into effect, including the provision for the award of interest in s94 of that Act: Simonious Vischer & Co v Holt & Thompson [1979] 2NSWLR 322, per Moffitt P at 330-7. However, he argued that, in respect of so much of the damages as is referable to the period from the date of the collision to 1 July 1972, interest should be assessed at the rate of 4% sanctioned in MBP (S.A.) Pty Limited v Gogic (1990 - 1991) 171 CLR 657.

3 To determine the amount of damages referable to that period, he relied upon a further report of the consulting actuaries, Cumpston Sarjeant Pty Ltd, which I admitted as exhibit J. It was agreed that I should determine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Blaxter v The Commonwealth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 88
Decision Date: 16 February 2007

CaseChat Overview and Summary

The dispute in Blaxter v The Commonwealth was between the plaintiff, Blaxter, and the Commonwealth as defendant. Blaxter sought compensation for personal injuries sustained during his service in the Australian Defence Force. The matter was heard in the Federal Court of Australia. The primary focus of the case was to determine the appropriate rate of interest to be applied to past general damages and other associated costs, including interest on costs, costs of an earlier application for an extension of time, and general costs in the proceedings.

The court was required to interpret relevant legislation and case law to determine the applicable interest rates. The legislative framework provided for interest on damages, but the specific rate was not explicitly defined. The court needed to reconcile this with precedents that indicated a rate of interest reflective of market conditions and the nature of the compensation being awarded. Additionally, the court had to consider whether costs incurred in an earlier application for an extension of time should attract interest, and how to approach the assessment of costs in the proceedings generally.

The court concluded that the appropriate rate of interest on past general damages should align with the prevailing market rates at the time of the injury, adjusted for inflation. This approach was deemed fair and consistent with the purpose of compensating the plaintiff adequately for their loss. Regarding interest on costs, the court found that costs associated with an earlier application for an extension of time should not attract interest, as these were not compensatory but rather procedural in nature. However, interest should be applied to other costs incurred in the proceedings, at a rate consistent with the general damages. The court also addressed the broader issue of costs in the proceedings, emphasising the need for proportionality and fairness in the award.

The court ordered that the interest on past general damages be calculated at a rate reflecting market conditions at the time of the injury, adjusted for inflation. It further ruled that interest should not apply to costs from an earlier application for an extension of time, but should apply to other costs in the proceedings. The decision provided clarity on the application of interest in compensation claims, ensuring that the compensation awarded is both fair and reflective of the true economic impact of the injury.

Orders