Sutton v Firth (No 3)

[2009] NSWDC 68

CITATION:	Sutton v Firth (No 3) [2009] NSWDC 68
HEARING DATE(S):	17 March 2009
JUDGMENT DATE:	17 March 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	1.Verdict and judgment for the plaintiff against the defendant in the amount of $107,415.29. 2.Defendant is to pay the plaintiff’s costs of the proceedings. 3.The judgment be stayed pending further order conditional upon the defendant filing and serving a notice of appeal with appointment within 28 days. 4.The plaintiff be granted liberty to restore the matter to the list to argue that the stay be lifted 5.The Court notes that there is an issue between the plaintiff and the defendant in respect of the costs of the proceedings in the Supreme Court of New South Wales, No 13429 of 2006 and that the parties will pursue that matter in the Supreme Court. 6.I direct that the exhibits in this matter remain with the file and they may be returned on application by the parties to the Registrar after 28 days, but subject to the resolution of any appeal.
CATCHWORDS:	INTEREST - Rate of interest on judgment - Whether under Civil Liability Act 2002 or Uniform Civil Procedure Rules 2005 - Professional negligence action for loss of opportunity to bring claim for common law damages - Commonwealth Government bond rate applicable and not court rates - JUDGMENT - Interest rate applicable - Stay pending appeal - Costs
LEGISLATION CITED:	Civil Liability Act 2002, s 18 Uniform Civil Procedure Rules 2005, Sch 5 Workers Compensation Act 1987
PARTIES:	Renee Leslie Sutton - Plaintiff Stephen Paul Firth - Defendant
FILE NUMBER(S):	No 3309 of 2005
COUNSEL:	Mr KW Andrews for Plaintiff Mr GM Watson SC and Mr RI Goodridge for Defendant
SOLICITORS:	Brennan Legal for Plaintiff Firths - The Compensation Lawyers for Defendant

JUDGMENT
(ex tempore)
1 In relation to the final determination of this matter, the question of interest has arisen. The Court on 12 March last gave reasons for judgment ([2009] NSWDC 53) and found a verdict in favour of the plaintiff against the defendant in the amount of $81,896.38. On that verdict amount the plaintiff has made an application for judgment to include interest.

2 The application is based upon the rates prescribed from time to time since this matter arose by way of liability under Sch 5 of the Uniform Civil Procedure Rules 2005. It is agreed mathematically that that would represent interest for the period concerned to the date of judgment in the sum of $62,241.26 giving a total verdict of $144,137.64. Against that, the defendant relies upon s 18 of the Civil Liability Act 2002 for interest to be over the period in question according to the rate currently prescribed for the Commonwealth Government bond rate as published by the Reserve Bank of Australia pursuant to s 18(4). I am advised that those figures are available and the amount of interest in that situation is $25,518.91 in which case the total verdict would be $107,415.29. As I understand it, the plaintiff accepts the mathematics of those calculations.

3 The question then is whether interest, and there is no question that interest should be awarded from 1 July 2000, should be according to s 18 of the Civil Liability Act or at court rates, that is, pursuant to Sch 5 of the Uniform Civil Procedure Rules. In my view, the Civil Liability Act applies to this action. This is an action which is, effectively, a loss of opportunity action for professional negligence. It is not an action under the Workers Compensation Act 1987 as to personal injury for modified common law damages. Accordingly, the primary submission put by the plaintiff for the non-application of the Civil Liability Act interest rate must fail. I emphasise that the matter is not an action pursuant to the exclusion contained in s 3B(1)(g) of the Civil Liability Act as to workers compensation matters. It is true, as counsel for the plaintiff said, that liability for this action arose before the Civil Liability Act commenced but the action was brought after the Civil Liability Act commenced and represents an action to which that statute therefore applies. In my view, interest is controlled by the terms of s 18 of the Civil Liability Act.

4 In the determination of these proceedings I make the following orders:

1.Verdict and judgment for the plaintiff against the defendant in the amount of $107,415.29.
2.Defendant is to pay the plaintiff’s costs of the proceedings.

(Counsel addressed on stay of judgment)

5 I am satisfied this is an appropriate case for the grant of a stay. The form of the orders in such event raises no issues. Accordingly, to the orders I have already made I add the following orders:

3.The judgment be stayed pending further order conditional upon the defendant filing and serving a notice of appeal with appointment within 28 days.
4.The plaintiff be granted liberty to restore the matter to the list to argue that the stay be lifted.

(Counsel addressed on costs regarding Supreme Court proceedings)

6 To the orders already made I add further orders:

5.The Court notes that there is an issue between the plaintiff and the defendant in respect of the costs of the proceedings in the Supreme Court of New South Wales, No 13429 of 2006 and that the parties will pursue that matter in the Supreme Court.
6.I direct that the exhibits in this matter remain with the file and they may be returned on application by the parties to the Registrar after 28 days, but subject to the resolution of any appeal.

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