De Aquino v Allred - [2022] ACTSC 354

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	De Aquino v Allred
Citation:	[2022] ACTSC 354
Hearing Date:	16 December 2022
DecisionDate:	16 December 2022
Before:	McCallum CJ
Decision:	(1) Note the Court’s satisfaction that the plaintiff is not a person under a legal disability within the meaning of r 282 of the Court Procedures Rules. (2) Judgment be entered for the plaintiff against the defendants in the sum of $610,000 clear of workers compensation payments plus a further sum for funds management expenses to be agreed or determined by the Court (Judgment sum). (3) The defendants are to pay the plaintiff’s costs as agreed in the sum of $180,000. (4) From the judgment sum, the defendants are authorised to deduct and pay any amounts the defendants are required by law to pay to Centrelink and Medicare Australia, with the balance of the judgment sum to be paid into Court.
Catchwords:	CIVIL LAW – Settlement – Legal disability – whether settlement of personal injury claim requires the approval of the Court – whether the sum should be paid to the Public Trustee and Guardian
Legislation Cited:	Court Procedures Rules2006 (ACT) r 282 Public Trustee and Guardian Act 1985 (ACT) s 25
Parties:	Marcal Ferreira De Aquino (Plaintiff) Karl Allred trading as First Class Painting (ABN 79 807 642 696) (First Defendant) Higgins Coatings Pty Ltd (ABN 50 005 632 708) (Second Defendant)
Representation:	Counsel W Sharwood (Plaintiff) L Gooneratne (First Defendant) J Sukkar (Second Defendant)
Solicitors AC Lawyers (Plaintiff) HWL Ebsworth Lawyers (First Defendant) Barry Nilsson Lawyers (Second Defendant)
File Number:	SC 355 of 2021

McCALLUM CJ:

Marcel Ferrero De Aquino suffered catastrophic injury in a workplace accident on 9 June 2020. With the assistance of his solicitors, he has resolved a claim for damages arising out of that accident. The parties have brought forward two issues for consideration by the Court today in respect of the settlement agreement.

The first is that, by application in proceeding filed 1 December 2022, the plaintiff seeks a determination as to whether he is a person under a legal disability. That issue was raised by a previous solicitor retained by the plaintiff, who wrote to the plaintiff’s treating general practitioner, Dr Tran, seeking his view regarding the plaintiff’s capacity to instruct his solicitors.

The doctor wrote a report which is in evidence before me. In short, that report indicated that there was no difficulty with the plaintiff instructing his solicitors. The basis for that conclusion was what is known as a “mini mental state examination” in which the plaintiff obtained a perfect score, indicating that he has no significant cognitive impairment.

The plaintiff’s solicitor deposes that he conferred with the plaintiff in person on numerous occasions and formed the view that he was capable of providing instructions to conduct his claim for personal injury damages. That position is evidently supported by the plaintiff’s counsel, Mr Sharwood; or at least, no separate point has been made on the issue.

Having…

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.

Continue reading De Aquino v Allred

Details

AGLC: De Aquino v Allred [2022] ACTSC 354
Case: [2022] ACTSC 354
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of De Aquino v Allred involved a dispute over a personal injury settlement following a workplace accident. The plaintiff, Marcal Ferreira De Aquino, sought a determination on whether he was considered a person under a legal disability, which would have required court approval for the settlement. Additionally, there was a request to have the settlement sum paid into court for management by the Public Trustee and Guardian.

The legal issues before the court were twofold: first, whether the plaintiff's cognitive and decision-making abilities qualified him as a person under a legal disability; and second, whether the settlement amount should be managed by the Public Trustee and Guardian due to the plaintiff's financial management incapacity. The court examined evidence, including a report from a neuropsychologist and the plaintiff's interactions with his legal team, to assess his capacity. It found that while the plaintiff was not a person under a legal disability in terms of his ability to conduct litigation, he did lack the capacity to manage his financial affairs, which warranted the intervention of the Public Trustee and Guardian.

The court concluded that the plaintiff was not a person under a legal disability as defined by the Court Procedures Rules, thereby negating the need for court approval of the settlement. However, given the plaintiff's demonstrated inability to manage his finances effectively, the court ruled that the settlement amount should be paid into court and managed by the Public Trustee and Guardian. This decision was based on the broader definition of "under disability" in the Public Trustee and Guardian Act. The court's final order was for the defendants to pay the plaintiff's costs and for the settlement amount to be managed by the Public Trustee and Guardian, with specific provisions for funds management expenses.

The court's decision highlighted the distinction between legal disability in the context of litigation and the broader concept of disability concerning financial management, leading to the orders being made as proposed by the parties.

Orders