Robens v Fernandez

[2008] NSWSC 321

CITATION:	Robens v Fernandez [2008] NSWSC 321
HEARING DATE(S):	27 August 2007 27 September 2007 16 November 2007 26 November 2007 10 April 2008
JUDGMENT DATE :	11 April 2008
JUDGMENT OF:	Malpass AsJ
DECISION:	Application refused; judgment to take effect as of the date on which it is given.
CATCHWORDS:	COMMON LAW - motor vehicle accident - interest - ante-dating of judgment - discretionary power - relevant considerations
LEGISLATION CITED:	Health and Other Services (Compensation) Act 1995 Motor Vehicle Accidents Compensation Act 1999 Social Security Act 1991 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Hartley Poynton Ltd v Ali [2005] VSCA 53; 11 VR 568
PARTIES:	Sheree Robens by her next friend Jenni Robens (Plaintiff) Jose Humberto Fernandez (Defendant)
FILE NUMBER(S):	SC 20010/05
COUNSEL:	Mr GB Hall QC/ Mr MAJ Daley (Plaintiff) Mr RR Bartlett SC/ RH Weinstein (Defendant)
SOLICITORS:	Brydens Law Office (Plaintiff) Dibbs Abbott Stillman (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Friday 11 April 2008

20010/05 Sheree Robens by her next friend Jenni Robens v Jose Humberto Fernandez

JUDGMENT

1 HIS HONOUR: These proceedings first came before me on 27 August 2007 for hearing. Subsequent to the commencement of the hearing, the parties reached a consensus as to quantum in respect of damages (save as to the component of costs of fund management).

2 The hearing continued concerning questions of liability. On 27 September 2007, I delivered a judgment making findings in respect of the defence of contributory negligence. On 16 November 2007, a further hearing took place concerning the matter of apportionment. Judgment in respect of that matter was delivered on 26 November 2007.

3 At the time of the commencement of the hearing, the plaintiff was 22 years of age. In the accident that brought about these proceedings, she suffered serious brain damage. The proceedings are brought by a next friend (her mother) and the approval of the Court is required for any settlement of her claim.

4 Following the judgment delivered on 26 November 2007, the question of the costs of funds management still remained outstanding.

5 On 14 March 2008, the plaintiff prepared a Notice of Motion. It sought relief in respect of various matters (including a determination of the question of the costs of fund management, the approval of the proposed settlement and a further question of the date of entry of judgment in the matter). The proceedings came before Registrar Bradford on 18 March 2008 and he allocated 10 April 2008 as the date for the hearing of the Notice of Motion.

6 A hearing of the Notice of Motion took place on the allocated date. Until shortly prior to that date, the quantum of the component of cost of fund management had remained a contentious issue. Two proposals had been advanced by the plaintiff (one involved Genesys Wealth Advisers Ltd, the other involved Perpetual Trustee Company Ltd). It appears from what was said from the bar table that the defendant had initially contemplated the consideration of other proposals. Ultimately, this did not take place. On 10 April 2008, the Court was advised that consensus had been reached between the parties as to the quantum of the component of the cost of fund management. The sum agreed was $967,323.00 and saw an acceptance of the proposal that involved Genesys Wealth Advisers Ltd. (It was the lower in quantum of the two proposals.)

7 Apart from exhibits that had been before the Court, the material placed before it in respect of the Notice of Motion comprised two affidavits sworn by Lee Hagipantelis (the solicitor for the plaintiff) and an affidavit by the tutor for the plaintiff. This being material that was largely directed to the question of quantum of the costs of fund management and approval of the settlement.

8 The agreed amount of damages for settlement of the matter was $8,347.323.00 (the agreed sum) and after a hearing on the question, the parties were advised that the agreed sum was a figure that would be approved. The parties then consented to undertake the preparation of either Short Minutes or Terms of Settlement.

9 A hearing then continued concerning the remaining question of the date upon which the judgment was to take effect. The application made by the plaintiff was that it should be ordered to take effect as from 26 November 2007 (the date upon which all questions of liability were determined). Submissions were then made on this disputed question. The defendant contended that it should take effect on the date on which it was given (which would be 11 April 2008).

10 The application was made pursuant to r 36.4. It is in the following terms:-

“ 36.4 Date of effect of judgments and orders
(1) A judgment or order takes effect:

(a) as of the date on which it is given or made, or
(b) if the court orders that it not take effect until it is entered, as of the date on which it is entered.
(2) Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor’s certificate is filed.
(3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.”

11 Part 36 is a general provision headed “Judgments and Orders”. The contemplation of rule 4 thereof seems to be that judgment will usually take effect in the manner prescribed by (1). However, the rule reserves the powers to do what is allowed by either (2) or (3). For present purposes, the relevant consideration concerns (3).

12 This provision confers an untrammelled discretionary power. There is no dispute between the parties that this is so. The question at issue is whether or not the discretionary power conferred thereby should be exercised in favour of the plaintiff.

13 In the exercise of the discretion, the Court is to have regard to the relevant circumstances of the case before it and ensure that the dictates of justice are best served. The onus rests with the party seeking the order.

14 As the plaintiff’s claim arises from a motor accident, the relevant regime of damages is that prescribed by the Motor Vehicle Accidents Compensation Act 1999. The recovery of interest on damages is governed by s 137 thereof. There is a legislative intention that the plaintiff only has such right to interest on damages (as opposed to judgment) as is conferred by the section.

15 There is no dispute that the purpose of the application is to enable the plaintiff to recover interest on the agreed sum as and from 26 November 2007.

16 Whilst the plaintiff did make a claim for interest in the proceedings, the agreed sum did not include a component for interest. She did not pursue her rights as conferred by subsection (4) thereof. The quantification of her claim was compromised in the amount of the agreed sum.

17 The Court has been referred to a number of cases (including the decision by the Court of Appeal in Victoria in Hartley Poynton Ltd v Ali [2005] VSCA 53; 11 VR 568). The cases provide useful guidance only as to the exercise of the discretion. My attention has not been drawn to any case having a factual similarity to the present one. One area in which the discretion has been exercised is where the Court does what it considers should have been earlier done.

18 After settlement of the quantum of her claim she now seeks, in effect, to enhance that quantum per medium of an order that the judgment take effect at an earlier date than one on which it could be obtained.

19 The defendant has had the benefit of the moneys that it will be required to pay to satisfy the judgment to be entered on 11 April 2008. However, the consensus as to the agreed sum was not reached until 10 April 2008 and the approval to that consensus was not given until that date. The conduct of the defendant is governed by provisions of other legislation (see s 32 of the Health and Other Services (Compensation) Act 1995 and s 118(4D) of the Social Security Act 1991).

20 The plaintiff was unable to obtain judgment until the question of the costs of fund management had been resolved. It represented a significant component of the agreed sum. There is a lack of evidence to support any contention that the plaintiff has been guilty of serious delay in the bringing of that matter to resolution. The making of the order sought by the plaintiff would deprive the defendant of the benefits conferred by s 101 of the Civil Procedure Act 2005.

21 In the relevant circumstances of this case, I am not satisfied that the dictates of justice would be best served by the order sought by the plaintiff. Accordingly, I refuse the application to make an order pursuant to UCPR 36.4(3). In my view, the judgment should take effect as of the date on which it is given.

**********