Timothy Chris Hall Bhnf LOIs Jean Hall v Sydney Robert Armellin
[2010] ACTSC 135
•27 OCTOBER 2010
TIMOTHY CHRIS HALL BHNF LOIS JEAN HALL V SYDNEY ROBERT ARMELLIN
[2010] ACTSC 135 (27 OCTOBER 2010)
LITIGATION AND PROCEDURE – orders made to pay settlement sum into court – settlement sum paid out to ACT Public Trustee in accordance with Public Trustee Act 1985 (ACT).
LITIGATION AND PROCEDURE – application made by the next friend for payment from settlement sum for gratuitous services of care provided to the plaintiff – ACT Public Trustee not present to respond to the application – application adjourned to provide ACT Public Trustee with notice of the application.
Public Trustee Act 1985 (ACT)
Singh and Another v Calvary Hospital ACT Inc and Another (2008) 220 FLR 352
W v Q (1992) 1 Tas R 301
Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341
Public Trustee (ACT) v Thompson and Another (2000) 155 FLR 18
Grevett v McIntyre [2002] QSC 106
EX TEMPORE JUDGMENT
No. SC 638 of 2003
Judge: Refshauge J
Supreme Court of the ACT
Date: 27 October 2010
IN THE SUPREME COURT OF THE )
) No. SC 638 of 2003
AUSTRALIAN CAPITAL TERRITORY )
TIMOTHY CHRIS HALL BHNF LOIS JEAN HALL
v
SYDNEY ROBERT ARMELLIN
ORDER
Judge: Refshauge J
Date: 27 October 2010
Place: Canberra
THE COURT ORDERS THAT:
The applicant file an Application in Proceedings to formalise the application made by the next friend of the plaintiff for a payment from the settlement sum for gratuitous services of care they have provided to the plaintiff.
The application be adjourned generally with leave to reinstate on short notice.
The ACT Public Trustee be served with a copy of the Application in Proceedings, the supporting affidavit and a copy of these reasons and be given an opportunity to attend and be heard.
The plaintiff was born on 9 January 1996 with significant disabilities which meant that he would be permanently dependant on others for full-time care for the whole of his life.
In these proceedings, he claimed that his disabilities were caused by the negligence of the defendant.
The parties managed to reach a settlement of the proceedings and on 24 June 2010, I approved the settlement and made consequential orders requiring the payment of the settlement sum to the Registrar of the Supreme Court and other matters. That sum, less certain approved deductions, was to be paid out to the Public Trustee to be dealt with in accordance with the Public Trustee Act 1985 (ACT).
I note from an inspection of the file that the balance was paid to the Public Trustee on 31 August 2010.
The plaintiff’s next friend has now applied for a payment, from the settlement sum retained by the Public Trustee, of the sum of $300,000 to her and her husband in respect of the gratuitous services of care they have provided to the plaintiff.
In the opinion supporting the application for approval of the settlement, there was reference to such services but there was no quantification of their value as it related to the actual settlement sum such that it could be suggested that the approval of the settlement envisaged a particular quantum for that head of damages.
The settlement was primarily the outcome of an assessment of the risk that the claim for the plaintiff may not succeed at trial, or may not succeed as to the settlement sum if damages were awarded, because of the evidentiary issues involved.
Accordingly, some difficult issues are raised by the application.
There is no doubt that the court has power to make a payment, from a sum of damages awarded to a disabled person, to the provider of gratuitous services in respect of the cost of the gratuitous services provided. I have addressed this issue in Singh and Another v Calvary Hospital ACT Inc and Another (2008) 220 FLR 352 (Singh’s Case) and the cases cited there (at 359 [38]-[40]).
The application here, however, is made by the next friend for payment to herself and her husband. This is not improper, but it does mean that the next friend cannot, because of a clear conflict of interest, represent the plaintiff’s interest in the application.
In Singh’s Case, this was not so difficult because the opinion supplied by counsel in support of the application for approval of the settlement included a reasonably specific sum for the cost of gratuitous services to that extent: Singh’s Case (at 361 ([53]).
This is not the position here. Thus, the calculation of the appropriate sum is somewhat more discretionary.
I noted in Singh’s Case (at 359 [42]) that in some jurisdictions the application has been made by the trustee or guardian of the disabled person’s estate. Indeed, in W v Q (1992) 1 Tas R 301, the Court there held that the Public Trustee should make the decision. In New South Wales, the Protective Commissioner usually seeks the authority of the Court, see for example, Re ES and the Mental Health Act 1958 [1984] 3 NSWLR 341. This was the position in the ACT decision of Public Trustee (ACT) v Thompson and Another (2000) 155 FLR 18.
In Grevett v McIntyre [2002] QSC 106, Byrne J held (at [6]) that an application by the next friend represented an unacceptable conflict of duty and interest dismissing the application and leaving it to the Public Trustee, to whom the judgment sum was to be paid, to decide whether the amount should be paid.
It seems to me in this application that the Public Trustee should at least be present on the hearing of the application so as to provide such submissions as may be desirable both as to whether the sum should be paid and, if so, whether the amount is appropriate. For example, in some of the cases it has been clear that the payment of the sum would leave the estate insufficient to satisfy the continued care. That does not appear to be the situation here and I do not imagine that there will be many concerns in relation to that.
The Public Trustee should also have the opportunity to confirm, as I suspect the case is and appears from the affidavit material, that it is in the plaintiff’s interests to continue to have the care and support of his parents, which seems to be fairly obvious, and that the payment out of the settlement sum would be part of the arrangements that would ensure this.
Accordingly, the Public Trustee or another guardian for the plaintiff should be available as a contradictor so that if necessary there is at least someone to look after the interests of the plaintiff with no other interests at stake in the final application.
Accordingly, I shall adjourn the application so that the Public Trustee has an opportunity to be given due notice of the application and attend. A copy of these reasons should be provided.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 27 October 2010
Counsel for the plaintiff: Mr G Rees
Solicitor for the plaintiff: Slater & Gordon Lawyers
Date of hearing: 27 October 2010
Date of judgment: 27 October 2010
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