Moloney v Attorney-General of Victoria, Director of Public Prosecutions and Anor (Ruling)

[2010] VCC 1624

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-03670

ROBERT GERARD MOLONEY	Applicant
v
ATTORNEY-GENERAL OF VICTORIA	First Respondent
and
DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Second Respondent
and
STATE OF VICTORIA	Third Respondent

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 April 2010, 19 May 2010
DATE OF RULING:	1 October 2010
CASE MAY BE CITED AS:	Moloney v Attorney-General of Victoria, DPP & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1624

RULING

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Catchwords: Confiscation Act 1997 – quantum of damages.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F I O’Brien QC with	Davies Moloney
Ms E A Bennett
For the Second and Third	Mr S G O’Bryan SC with	Solicitor for Office of Public
Respondents	Ms L De Ferrari	Prosecutions
HIS HONOUR:

1          When I delivered my Reasons for Judgment in this matter I sought the comment of the parties at to whether any issue arose as to the quantum of the damages which was sought by the plaintiff should I find in his favour, namely $320,000.

2          The figure was referred to by me in my Reasons for Judgment as being the amount which the Valuer-General had fixed as the value of the subject property.

3          In response to my enquiry, both parties accepted this figure as being an appropriate quantification of the damages to which Mr Moloney was entitled and accordingly, a judgment was entered in favour of Mr Moloney for this amount.

4          On 20 September 2010, an application was made by the third respondent to vary the amount of the judgment which had been entered. In support of the application, the third respondent filed a number of affidavits which deposed to facts relied upon by it which had not previously been the subject of evidence in the matter.

5          In the course of the application, the following facts emerged in respect of which there is no dispute. Firstly, that the Valuer-General had in fact valued the property at a figure of $325,000; and secondly, that the property is the subject of an existing mortgage to the Australia and New Zealand Banking Group Limited in the sum of $64,280.

6          It is the application of the third respondent that by reason of these matters, I should vary the amount for which the judgment has been entered. Such that for that, the judgment sum of $320,000, the figure of $260,720 should be substituted.

7          This application is opposed by the applicant. I have decided that I should adopt this course. In arriving at this decision, I am cognisant of the fact that it is a course which I should adopt with caution, bearing in mind the fact the public policy demands finality in litigation and that generally, once I have delivered my Reasons for Judgment, I should treat with considerable reluctance an application to re-open the case and that I should expose the reasons for such an application to close scrutiny:[1] (See State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29.

[1]          De L v Director-General, NSW Dept of Community Services (No 2) (1997) 190 CLR 207; Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) ATPR 41-508 (Leigh J, 17 May 1996); Smith v NSW Bar Association (No 2) (1992) 176 CLR 256; Newmont Yandal Operations Pty Limited v the J Aron Corporation and the Goldman Sachs Group, Inc and 3 Ors (2007) NSWLR 411

8          I accept that in making this application, I am granting leave to the third defendant to re-open its case. I am satisfied that it is appropriate to do so for the following reasons:

9          Firstly, it was my intention, as expressed in my Judgment, to restore the status quo by fixing the damages which would be awarded in the case in a sum which reflected the value of Mr Moloney’s loss. In my opinion, it is appropriate to employ Mr Moloney’s net equity in the property as that value, namely $262,720.

10        Secondly, I am satisfied that the cause of the oversight which gives rise to this application is attributable to both parties and that it occurred by accident occurred by accident rather than by deliberate omission: (See De L v Director- General, NSW Dept of Community Services (No 2) (supra).

11        I also take into account the fact that judgment in the matter has not been authenticated: (See R v Billington [1980] VR 625; Carroll v Price [1960] VR 651); and that the interests of justice require my intervention in circumstances in which it was my intention to restore the status quo which existed prior to the wrongful seizure of Mr Moloney’s property, and that should I not intervene, Mr Moloney would receive an unjustified windfall which would stymie my expressed intention to restore the status quo: (See Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 All ER 211 and Newmont Yandal Operations Pty

Limited v the J Aron Corporation and the Goldman Sachs Group, Inc and 3

Ors (supra).

12        In these circumstances, I propose to make an order substituting for the amount of the judgment in this action the sum of $262,720.

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