SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Duffell v Duffell |
Citation: | [2015] ACTSC 123 |
Hearing Date(s): | 27 March 2015 |
DecisionDates: | 27 March and 26 May 2015 |
Before: | Refshauge J |
Decision: | A 27 March 2015 1. That the compromise set out in the General Form of Consent Judgment handed up and signed by the solicitor for the plaintiff on 26 March 2015 and the solicitor to the defendant on 27 March 2015 be approved. 2. Judgment be entered for the plaintiff in the sum of $2,750,000.00, inclusive of funds management plus costs to be agreed or assessed, such costs not to include the plaintiff’s costs incurred on occasions where costs orders made in favour of the defendant. 3. It be noted that the judgment sum in order 2 is inclusive of all payments paid by Insurance Australia Limited trading as NRMA Insurance pursuant to s 83 of the Motor Accidents Compensation Act 1999 (NSW). 4. The defendant is authorised to deduct and/or pay from the judgment sum any monies payable or repayable by the plaintiff to any person or body, whether in respect of workers compensation, social services, sick leave payments, make-up pay, accident pay or any amount payable to the Commonwealth under the Health and Other Services (Compensation) Act 1995 (Cth) or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise concerning which any demand or notice has been served on or given to the defendant or their solicitor or insurer either before, on or after the date hereof. 5. It be noted that the plaintiff undertakes and agrees to pay out of the judgment sum any monies repayable by the plaintiff to any person or body in respect of Workers Compensation, social services, sick leave payments, make-up pay, accident pay or any amount payable to the Commonwealth under the Health and Other Services (Compensation) Act 1995 (Cth) or otherwise which may not have been deducted by the defendant pursuant to order 4 hereof and also to pay to the parties entitled all outstanding medical, hospital, ambulance and other out-of-pocket expenses. 6. It be noted that the plaintiff acknowledges that the defendant and its insurer have informed the plaintiff under to s 22(1)(a) of the Health & Other Services (Compensation) Act 1995 that the plaintiff may be liable to pay amounts under that Act or the Health & Other Services (Compensation) Care Charge Act 1995 as a result of the settlement being made and that the Insurer has given the prescribed notice of its intention to make an advance payment in accordance with that Act. The defendant or its licensed insurer is authorised to deduct from the judgment sum and to forward to the Health Insurance Commission an amount equivalent to 10 percent thereof or the amount stated in a current Certificate issued in accordance with s 21 of the Health & Other Services (Compensation) Act 1995, as amended. 7. It be noted that the plaintiff undertakes to inform the defendant… |
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- AGLC
- Duffell v Duffell [2015] ACTSC 123
- Case
- [2015] ACTSC 123
- Decision Date
CaseChat Overview and Summary
The court examined the provisions of relevant legislation, including the Guardianship Act 1987 (NSW), and considered the role of the litigation guardian in approving the settlement. The court also assessed the proposed appointment of a trustee to manage the plaintiff's funds, weighing the merits of appointing the Public Trustee versus a trustee company. The court determined that the settlement was fair and reasonable, and that the proposed arrangements for the management of the funds were appropriate, taking into account the plaintiff's best interests and the advice of the litigation guardian.
The court approved the settlement and made orders for the entry of judgment in favour of the plaintiff in the sum of $2,750,000.00, inclusive of funds management. The court also made orders regarding the management of the funds, including the appointment of a trustee and the payment of costs. The orders provided for the deduction of certain amounts from the judgment sum to cover repayment obligations and costs incurred by the plaintiff. The court also noted that the defendant and its insurer were authorised to deduct and forward to the Health Insurance Commission an amount equivalent to 10 percent of the judgment sum or the amount stated in a current Certificate issued in accordance with the Health & Other Services (Compensation) Act 1995.
The court made several other orders to ensure the proper management of the funds, including the repayment of certain amounts to various parties and the indemnification of the defendant and insurer for any liability under the Social Security Act 1991 (Cth). The court also made orders regarding the payment of interest on the judgment sum, and the circumstances in which interest would not be payable. The court's orders reflected a careful consideration of the legal issues and the parties' circumstances, and provided for the fair and reasonable management of the plaintiff's funds.
Orders
Orders of the court
A 27 March 2015
1. That the compromise set out in the General Form of Consent Judgment handed up and signed by the solicitor for the plaintiff on 26 March 2015 and the solicitor to the defendant on 27 March 2015 be approved.
2. Judgment be entered for the plaintiff in the sum of $2,750,000.00, inclusive of funds management plus costs to be agreed or assessed, such costs not to include the plaintiff’s costs incurred on occasions where costs orders made in favour of the defendant.
3. It be noted that the judgment sum in order 2 is inclusive of all payments paid by Insurance Australia Limited trading as NRMA Insurance pursuant to s 83 of the Motor Accidents Compensation Act 1999 (NSW).
4. The defendant is authorised to deduct and/or pay from the judgment sum any monies payable or repayable by the plaintiff to any person or body, whether in respect of workers compensation, social services, sick leave payments, make-up pay, accident pay or any amount payable to the Commonwealth under the Health and Other Services (Compensation) Act 1995 (Cth) or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise concerning which any demand or notice has been served on or given to the defendant or their solicitor or insurer either before, on or after the date hereof.
5. It be noted that the plaintiff undertakes and agrees to pay out of the judgment sum any monies repayable by the plaintiff to any person or body in respect of Workers Compensation, social services, sick leave payments, make-up pay, accident pay or any amount payable to the Commonwealth under the Health and Other Services (Compensation) Act 1995 (Cth) or otherwise which may not have been deducted by the defendant pursuant to order 4 hereof and also to pay to the parties entitled all outstanding medical, hospital, ambulance and other out-of-pocket expenses.
6. It be noted that the plaintiff acknowledges that the defendant and its insurer have informed the plaintiff under to s 22(1)(a) of the Health & Other Services (Compensation) Act 1995 that the plaintiff may be liable to pay amounts under that Act or the Health & Other Services (Compensation) Care Charge Act 1995 as a result of the settlement being made and that the Insurer has given the prescribed notice of its intention to make an advance payment in accordance with that Act. The defendant or its licensed insurer is authorised to deduct from the judgment sum and to forward to the Health Insurance Commission an amount equivalent to 10 percent thereof or the amount stated in a current Certificate issued in accordance with s 21 of the Health & Other Services (Compensation) Act 1995, as amended.
7. It be noted that the plaintiff undertakes to inform the defendant of any amount repayable by him under the Social Security Act 1991 (Cth), and also authorises the defendant to inform Centrelink of the payment and to ascertain whether any amount is repayable under that Act. If the payment of the settlement sum is made to the plaintiff by the defendant or insurer prior to Centrelink notifying the parties that an amount is repayable under that Act, the plaintiff undertakes to repay this amount and indemnifies the defendant and insurer for any liability for any such payment.
8. No interest shall be payable in respect of the advance payment referred to above nor in respect of the judgment herein if same be paid within 28 days from the date of judgment, within 28 days after the receipt of an Authority to Receive satisfactory to the defendant and a copy of the Judgment duly signed or initialled by the Registrar, or in the event an advance payment is not made, within 28 days after receipt by the defendant or its insurer of a final notice under the Health & Other Services (Compensation) Act 1995, or in the event of a Notice of Charge being received form Centrelink, within 28 days after the receipt by the defendant or its Insurer of notification in writing from Centrelink of the amount to be paid to the plaintiff, whichever is the later.
9. It be adjudged that the plaintiff recover against the defendant the sum of $2,750,000.00, inclusive of funds management plus costs to be agreed or assessed, such costs not to include the plaintiff’s costs incurred on occasions where costs orders made in favour of the defendant.
B 26 MAY 2015
1. The plaintiff be heard as to the orders to be made in accordance with these reasons.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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