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:

1. 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. 

1. 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.

1. 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.

1. 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.

1. Having regard to the closeness of the relationship between lawyers and a plaintiff in an action such as the present, and the duties of the lawyers as officers of the Court, I am inclined to accept their assessment on the question raised by r 282 of the Court Procedures Rules2006 (ACT). That rule provides that a person with a legal disability may only enter into a settlement or compromise with the Court’s approval. The term “legal disability” carries the notion of capacity to do the things a person has to do during litigation, including giving instructions, understanding advice and making decisions about the conduct of the proceedings. It is to be assessed in the context that the person is likely to have the support and protection of those acting in his interests in the proceedings.

1. Based on the material before me, I do not consider the plaintiff to be a person with a legal disability.  It follows that there is no need to appoint a litigation guardian, or for the Court to approve the settlement.

1. Separately, however, the plaintiff seeks an order that the settlement sum be paid into Court to be paid out to the ACT Public Trustee and Guardian. Section 25 of the Public Trustee and Guardian Act 1985 (ACT) makes provision for a person “under disability”. That expression has a broader connotation than the term “legal disability” in the Rules.

1. There is evidence before the Court of the opinion of a neuropsychologist, Dr Alexandra Walker, who says:

The plaintiff is not capable of making sound and reasonable decisions around his financial affairs.  He has limited insight around the effects of his injury on his cognitive skills.  Efforts to help him budget have thus far been unsuccessful and he is in considerable debt.

In my opinion he lacks the capacity to manage his financial affairs and would benefit from external financial management if it were possible, particularly in the event that he receives a substantial lump sum settlement amount.

1. The amount which is to be paid to the plaintiff by way of judgment debt in accordance with the orders proposed by the parties today may properly be characterised as a substantial lump sum and one the possession of which might place a person in the position of the plaintiff in a position of some vulnerability concerning the application of those funds.

1. I am satisfied that there is a difference between the meaning of the expression “legal disability” in the Rules and the meaning “under disability” in s 25 of the Public Trustee and Guardian Act, and I am satisfied that the plaintiff is a person under disability within the meaning of the latter.

1. For that reason, I am satisfied that it is appropriate to make the order sought requiring payment of the judgment sum into the Court and payment out to the Public Trustee and Guardian. 

1. I note that, by proposed order 2(c), the parties have carved out an amount which remains to be agreed or determined by the Court for funds management expenses.  I am satisfied nonetheless that the orders can be made on the understanding that, if the parties are unable to agree about that amount, they have agreed on a binding basis to be bound by the Court’s determination of that sum.

1. Separately, I have been informed by the representative for the second defendant, Mr Sukkar, that as between the defendants there is a binding agreement which is not intended to be affected by the orders proposed by the parties today. 

1. For those reasons, I make orders as sought by the parties.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date: