Taylor v Heldon & Newgrosh T/a Shane's Water Sports
[2004] QDC 575
•01/10/2004
[2004] QDC 575
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No BD3433 of 2004
| MATTHEW MICHAEL TAYLOR BY HIS LITIGATION GUARDIAN PAUL TAYLOR | Applicant |
| and | |
| SHANE JACKSON HELDON and DAVID ANTHONY STUART NEWGROSH TRADING AS SHANE'S WATER SPORTS and AAPC PROPERTIES PTY LIMITED | First Respondents Second Respondent |
BRISBANE
..DATE 01/10/2004
ORDER
Catchwords
: Solicitor's affidavit should be supplied to comply with UCPR r 98(2)(a) rather than that of a managing clerk.
HIS HONOUR: The order of the Court is made conditionally upon the filing of an affidavit of John Leslie Saunders, solicitor expressing agreement with the views set out in paragraph 11 of the affidavit of Charles McGilvray filed the 23rd of September 2004.
This is an application for the Court's sanction of the settlement of an action commenced by the infant plaintiff with his father acting as litigation guardian in respect of personal injuries he suffered from a mishap in a water sports activity. The material before the Court explains that because of a lack of appreciation of the full implications of the Personal Injuries Proceedings Act 2002 an action was commenced which may be seen as premature.
The Court is asked to act in an application independent of the action, a prudent enough course given that the efficacy of the other proceeding may be under a cloud. The settlement, for an all up sum of $80,000, $15,000 of which the parties are satisfied should be allocated to agreed costs, may be seen as a good one in the interests of the plaintiff. He is presently 15 years of age.
That agreed costs figure is to be subtracted from the settlement sum - which will limit the costs to be charged by the Public Trustee for its management of funds to be held for the next few years. Some inroads will be made into that to cover the litigation guardian for his full costs. The Public Trustee of Queensland may be trusted with ensuring that there is appropriate monitoring of the amount of those inroads.
A balancing consideration is that the plaintiff's parents are not seeking to be reimbursed at this stage, as many in their position do, in respect of past special damages, the cost of which they have had to bear, or past Griffiths v Kerkemeyer services which they have provided.
The other aspect meriting some consideration is that the affidavit supplied for purposes of Rule 98(2)(a) has been sworn by Mr McGilvray, an experienced managing clerk, who also conducted the matter for the plaintiff. In practical terms his judgment regarding what is in Matthew Taylor's best interests is probably no less valid than that of a solicitor.
It is perhaps odd that the opinion of a solicitor with less relevant experience might be more acceptable. I am sure there is room for an argument that the Court may and should accept the affidavit of someone in Mr McGilvray's situation, but the approach that has been taken this morning is to avoid any risk by the relatively simple expedient of making the Court's order of sanction conditional upon the filing of an affidavit of the solicitor under whose supervision Mr McGilvray works expressing his agreement with Mr McGilvray's view.
Order as per initialled draft.
‑‑‑‑‑
0
0
0