Kartsonas v AAI Limited
[2022] ACTSC 356
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kartsonas v AAI Limited |
Citation: | [2022] ACTSC 356 |
Hearing Date: | 16 December 2022 |
DecisionDate: | 16 December 2022 |
Before: | McCallum CJ |
Decision: | (1) In proceedings SC 51 of 2022: (a) The compromise of the second plaintiff’s claim in the sum of $5,000 plus funds management in the sum of $264 plus disbursements only in the sum of $2,586.74 is approved. (b) Judgment is entered by consent for the second plaintiff against the defendant in the sum of $5,000 plus funds management in the sum of $264 plus disbursements only in the sum of $2,586.74. (c) The second defendant is to pay $5,000 plus funds management in the sum of $264 into court in accordance with the provisions of s 25 of the Public Trustee and Guardian Act 1985 to be paid out to the ACT Public Trustee and Guardian. (d) The defendant is to pay the sum of $2,586.74 into the Blumers Personal Injury Lawyers Canberra Pty Ltd Trust Account. (2) In proceedings SC 50 of 2022: (a) The settlement in the sum of $600,000 plus costs plus funds management is approved. (b) The defendant is to retain $18,009.50 previously advanced toward funeral expenses. (c) Note the agreement to apportion the settlement in accordance with paragraph 3 of the short minutes of order handed up by the plaintiff. (d) The first, second and third plaintiff’s shares are to be paid into the Blumers Personal Injury Lawyers Canberra Pty Ltd Trust Account in the sum of $532,417.50. (e) The fourth plaintiff’s share in the sum of $49,573 plus funds management in the sum of $2,622 is to be paid into court in accordance with the provisions of s 25 of the Public Trustee and Guardian Act 1985 to be paid out into the ACT Public Trustee and Guardian. (f) The defendant is to pay the plaintiff’s costs as agreed or assessed into the Blumers Personal Injury Lawyers Canberra Pty Ltd Trust Account. (g) The Court dispenses with the requirement for Court approval pursuant to r 282 of the Court Procedures Rules 2006 in respect of the third plaintiff’s share of the settlement sum. |
Catchwords: | CIVIL PROCEDURE — Personal Injury — Judgment by consent — requirement for court approval of claims by children |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 282 Public Trustee and Guardian Act 1985 (ACT) s 25 |
Parties: | Erin Michelle Kartsonas (First Plaintiff) Aliyah Kartsonas (Second Plaintiff) Jay Kartsonas by next friend Erin Michelle Kartsonas (Third Plaintiff) Nik Kartsonas by next friend Erin Michelle Kartsonas (Fourth Plaintiff) AII Limited trading as GIO (Defendant) |
Representation: | Counsel B Jones (Plaintiff) K Burrow (Defendant) |
| Solicitors Blumers Personal Injury Lawyers (Plaintiffs) Moray & Agnew Lawyers (Defendant) | |
File Numbers: | SC 50 of 2022 SC 51 of 2022 |
McCALLUM CJ:
Before the Court are two sets of proceedings arising out of a motor vehicle accident in which Constantine Kartsonas, as a passenger, was killed. Proceeding SC 51 of 2022 is a claim for damages for nervous shock brought by Jay Kartsonas and Nik Kartsonas who, at the time of commencement of the proceedings, were both under the age of 18. The second plaintiff, Nik Kartsonas, is still under the age of 18 and accordingly the settlement of that claim requires the approval of the Court under r 282 of the Court Procedures Rules 2006 (ACT).
The second proceeding, SC 50 of 2022, is a claim for compensation to relatives by the late Mr Kartsonas’ wife and three children. The resolution of those proceedings also requires approval as to the portion proposed to be paid to Nik Kartsonas, for the same reason.
I will deal first with the nervous shock claim. In those proceedings, by application in proceeding filed 29 November 2022, the Court is asked to approve the compromise of Nik Kartsonas’ claim in the sum of $5,000 plus an amount for fund management plus disbursements in the sum of $2,951. The Court has been informed that the sum for disbursements reflects only the filing fee and the cost of medicolegal reports. No sum is to be deducted for legal fees, reflecting the fact that the lawyers have waived their entitlement to fees in that proceeding.
While the sum involved might seem minimal, a careful confidential advice provided to the Court authored by the plaintiffs’ counsel, Mr Jones, has persuaded me that it is appropriate to give my approval to the compromise. Having regard to the confidential nature of the advice, it is neither necessary nor appropriate to say more, save to say that I am satisfied that the proposed settlement is in Nik Kartsonas’ best interests.
Separately, in the proceedings claiming compensation to relatives, there is a substantial sum proposed to be paid to the young person’s mother. The total amount of the settlement is in the sum of $600,000 plus fund management costs. In relation to that sum, it is proposed that the defendant retain $18,000 odd previously paid towards funeral expenses. Otherwise, there is an apportionment of the sum which provides for a substantial portion to go to the mother and then increasing sums to each of the three young persons (children of the deceased) according to their age, reflecting their likely future needs. The share proposed for the fourth plaintiff, Nik Kartsonas, which is the part of the settlement that requires the Court’s approval, is in the sum of $49,573 plus funds management in the sum of $2,622.
Once again, there is before the Court a comprehensive advice prepared by Mr Jones which explains in careful detail the factors to which the Court needs to have regard in order to form a view as to the reasonableness of the settlement.
I pause in that context to observe that, whilst it is difficult for practitioners to make such comparisons (because they do not ordinarily see the advices provided by others), in my experience confidential advices provided to the Court in support of applications for approval of infant settlements are of varying degrees of helpfulness. I wish to record that Mr Jones’ advice is at the “extremely helpful” end of that scale. He has provided careful detail for the Court which has made it easy for the Court to come to a view as to the reasonableness of the settlement. That is always a difficult and concerning task when the Court is asked to make a decision that will affect the future of a young person.
Based on my reading of Mr Jones’ advice, I am satisfied that, having regard to the overall sum to be paid to all of the plaintiffs, the portion payable to Nik Kartsonas is reasonable and that it is in his best interests for the Court to approve the settlement. Particularly, I have had regard to [51] of the advice which is well supported by the balance of the advice and the evidence before the Court.
For those reasons, I make the following orders:
(1) In proceedings SC 51 of 2022:
(a)The compromise of the second plaintiff’s claim in the sum of $5,000 plus funds management in the sum of $264 plus disbursements only in the sum of $2,586.74 is approved.
(b)Judgment is entered by consent for the second plaintiff against the defendant in the sum of $5,000 plus funds management in the sum of $264 plus disbursements only in the sum of $2,586.74.
(c)The second defendant is to pay $5,000 plus funds management in the sum of $264 into court in accordance with the provisions of s 25 of the Public Trustee and Guardian Act 1985 (ACT) to be paid out to the ACT Public Trustee and Guardian.
(d)The defendant is to pay the sum of $2,586.74 into the Blumers Personal Injury Lawyers Canberra Pty Ltd Trust Account.
(2) In proceedings SC 50 of 2022:
(a)The settlement in the sum of $600,000 plus costs plus funds management is approved.
(b)The defendant is to retain $18,009.50 previously advanced toward funeral expenses.
(c)Note the agreement to apportion the settlement in accordance with paragraph 3 of the short minutes of order handed up by the plaintiff.
(d)The first, second and third plaintiff’s shares are to be paid into the Blumers Personal Injury Lawyers Canberra Pty Ltd Trust Account in the sum of $532,417.50.
(e)The fourth plaintiff’s share in the sum of $49,573 plus funds management in the sum of $2,622 is to be paid into court in accordance with the provisions of s 25 of the Public Trustee and Guardian Act 1985 (ACT) to be paid out into the ACT Public Trustee and Guardian.
(f)The defendant is to pay the plaintiff’s costs as agreed or assessed into the Blumers Personal Injury Lawyers Canberra Pty Ltd Trust Account.
(g)The Court dispenses with the requirement for Court approval pursuant to r 282 of the Court Procedures Rules 2006 (ACT) in respect of the third plaintiff’s share of the settlement sum.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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