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Toni Allman (By Her Litigation Guardian Kylie Allman v State Of Queensland

 

[2012] QSC 94

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Allman v State of Queensland [2012] QDC 94

PARTIES:

TONI ALLMAN (By her Litigation Guardian KYLIE ALLMAN
(applicant)

v

STATE OF QUEENSLAND
(respondent)

FILE NO:

1321/2012

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane 

DELIVERED ON:

14 May 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

1 May 2012

JUDGE:

Long SC, DCJ

ORDER:

  1. The compromise of the applicant’s claim on the following terms be sanctioned pursuant to s 59(2) of the Public Trustee Act 1978:
    1. that the respondent pay the applicant damages in the sum of $270,000.00 together with further damages in the sum of $39,398.00 for trustee’s management fees (“the compromise sum”); and
    2. that the respondent pay the applicant her costs of and incidental to the applicant’s claim, including the cost of this application, to be assessed on the standard basis (“the standard costs”).
  2. Perpetual Trustee Co Limited (“the trustee”) be appointed to receive, hold and manage the balance of the compromise sum after deduction of the amounts identified in paragraph 6 of this Order on trust for the applicant until she attains the age of 18 years.
  3. The trustee be empowered to invest the balance of the compromise sum and any accretions in such investments as trustees are empowered to invest under the Trusts Act 1973.
  4. The trustee apply such monies for the maintenance, benefit and support of the applicant.
  5. Within seven (7) days of this Order, the applicant’s solicitors serve a copy of it on the trustee.
  6. Within twenty-one (21) days of this Order or of the respondent’s receipt of the last of any statutory clearances or charges in relation to the compromise sum (whichever is the later to occur), the respondent pay the compromise sum as follows:
    1. to any statutory body having a charge over the compromise sum, the amount necessary to satisfy the charge;
    2. to the trustee, the balance;

whose receipt shall, in each case, be a sufficient discharge for the respondent.

  1. The respondent pay the standard costs to the trustee within twenty-one (21) days of their assessment prior agreement between the respondent and the trustee as to their amount.
  2. The applicant’s costs of and incidental to this claim, including the cost of this application, be assessed on the indemnity basis (“the indemnity costs”).
  3. The trustee pay the indemnity costs to the applicant’s solicitors from the monies received under paragraph 6 of this Order within twenty-one (21) days of their assessment or prior agreement between the applicant’s solicitors and the trustee as to their amount.
  4. The Registrar of the Court place the opinion of counsel read on this application in a sealed envelope marked “Not to be opened without an Order of the Court.”
  5. Each of the parties, the trustee and the applicant’s solicitors have liberty to apply in respect of these Orders. 

CATCHWORDS:

TRUSTS AND TRUSTEES – PUBLIC TRUSTEE – where the plaintiff seeks to appoint Perpetual Trustees Queensland Limited instead of the Public Trustee – whether the District Court has jurisdiction under s 59 of the Public Trustee Act 1978 (Qld).

CASES

Hills v Queensland [2006] QSC 296.

LEGISLATION

Personal Injuries and Proceedings Act 2002, Chapter 2.

Public Trustee Act 1978, s 59 (1A), (2).

COUNSEL:

P. L. Feely for the applicant.

D. Atkinson for the respondent.

SOLICITORS:

Maurice Blackburn for the applicant.

Cooper Grace Ward for the respondent.

  1. The applicant in this matter seeks orders to sanction a compromise of the applicant's claim against the respondent for damages for personal injuries, suffered due to negligence arising from the care of the applicant at the Kirwan Maternity Hospital in Townsville, consequently to her birth there on the 8th of July 1999 and to appoint a particular trustee.
  1. In that regard the applicant is a person under a legal disability within the meaning of that term in s. 59(1A) of the Public Trustee Act 1978.
  1. The applicant's claim has not become the subject of any action in any Court, it having been compromised before the necessity to do so and, in accordance with the now well established procedures under the Personal Injuries Proceeding Act 2002, which processes are designed, in part, to achieve such early resolution of matters of this kind.
  1. At the outset of the application, I requested counsel to address the issue of this Court's jurisdiction, not just because of the need for my satisfaction as to this but also because of the importance from the perspective of the parties of obtaining a valid sanction and ancillary orders, in order to finalise this matter.
  1. The parties take the position that the Court has jurisdiction pursuant to s.59(2) of the Public Trustee Act 1978.  In particular, it is submitted that the subsection refers to sanction of a settlement or compromise by "a Court or the Public Trustee" and that the terminology "a Court" engages the definition of "Court" in s.59(1A), rather than the definition of "Court" (meaning the Supreme Court) to be found in s.6 of the Public Trustee Act 1978.
  1. Notwithstanding some apparent difficulty in reconciling the definition of "Court" in s.59(1A) with the provisions of s.59(2), I am satisfied that the better interpretation and the one that best promotes the purpose of the provision, is that this Court does have jurisdiction to make the orders sought here; provided, as I am satisfied in this instance, that the claim which is pursued is within the monetary limit which would otherwise determine the jurisdiction of this Court to hear and determine a personal action of the kind which would have been necessary had this matter not been settled or compromised.
  1. There would be no doubt about jurisdiction if that had occurred and there was a cause or matter in this Court and the application were then brought pursuant to s.59(1). That is because that subsection refers to "any Court in which money or damages is or are claimed" and the definition of "Court" in s. 59(1A) refers to "a Court within whose jurisdiction an amount or damages are claimed".
  1. It is clear that s.59(2) is meant to operate as an adjunct to subsection 59(1) and to cover the situation expected to be facilitated by legislation such as the Personal Injuries and Proceedings Act and to allow for sanctioning of settlement achieved before any cause or matter is actually before a Court, by filing of process such as a claim and statement of claim.
  1. Relevantly, s.59(2) allows for "the sanction of a Court" in respect of a settlement or compromise of "any claim for money or damages by or on behalf of a person under a legal disability" if such settlement or compromise occurs "out of Court before action brought".
  1. It can be noted that chapter 2 of the Personal Injuries and Proceedings Act deals with “Claims”, with part 1 dealing with "pre-Court procedures" and part 3 with "proceedings in Court" and that the "claims procedures", "before starting a proceeding in Court on a claim" are required, by s.9, to be commenced by a "written notice of the claim".
  1. Those definitions set out in s.59(1A) of the Public Trustee Act are introduced by the words "In this section" and there is no reason for concluding that the definition of "Court" included in s.59(1A) is not intended to apply also to subsection 2 of section 59.
  1. Accordingly, it is appropriate to read the specific definition of "Court" provided for this section, in an expansive rather than narrow way and the requirement for there to be an amount or damages that "are claimed" within the jurisdiction of the Court may be satisfied by the making of the application for sanction and any ancillary orders and upon establishing, on that application and as has been done in this instance, that the amount claimed is within the monetary limit of the Court. It can be observed that that will necessarily be determined by the amount to be paid pursuant to the settlement or compromise, that being the claim then being pursued.
  1. Turning then to the application itself; this application is brought by the applicant's mother, as her litigation guardian and the parties have been represented by experienced legal representatives through the negotiations leading to settlement of this matter and on this application. The Court has the benefit of a detailed advice prepared by counsel for the applicant, which advice has been accepted by both his instructing solicitor and the litigation guardian.
  1. On the material read on this application I am satisfied that the interests of the applicant have been properly considered by all concerned and that the settlement of her claim is both reasonable and in her interests. This includes the agreement as to the ancillary orders relating to costs.
  1. The other ancillary orders sought are those necessary to appoint Perpetual Trustee Co Limited ("Perpetual") as trustee of the sums to be paid on the applicant's behalf, whilst she remains under legal disability.
  1. Such orders are also allowed pursuant to s.59(2) of the Public Trustee Act, just as they are allowed pursuant to s.59(1) of that Act: see Hills -v- Queensland [2006] QSC 296.  The only issue is whether such an order is an appropriate one.
  1. In the circumstances here the "appropriate person" to whom the proceeds would be otherwise paid, is the Public Trustee.
  1. Similarly to the approach of Justice McMurdo in Hills -v- Queensland, I would regard the circumstances that:

(1)the respondent has agreed as part of the compromise of the claim to pay the amount of Perpetual's charges;

(2)the Public Trustee has been notified as to this order being sought and neither he nor the respondent seeks to take any issue with it; and

(3)it is the choice and wish of the applicant (made by her litigation guardian) that this occur, in circumstances where the claim has been brought against and is to be paid by the State of Queensland and this will achieve a complete separation from any State funded body or appointee in the administration of this fund;

as making the orders sought appropriate.

  1. Accordingly, I make the orders as per the amended draft initialled by me and placed with the papers.
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Editorial Notes

  • Published Case Name:

    Toni Allman (By Her Litigation Guardian Kylie Allman v State Of Queensland

  • Shortened Case Name:

    Toni Allman (By Her Litigation Guardian Kylie Allman v State Of Queensland

  • MNC:

    [2012] QSC 94

  • Court:

    QSC

  • Judge(s):

    Long SC, DCJ

  • Date:

    14 May 2012

Litigation History

No Litigation History

Appeal Status

No Status