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[2023] QSC 76
The issue before Applegarth J concerned the period over which interest should be calculated. The plaintiffs were successful in their claim, and it was conceded by the defendants that the plaintiffs were entitled to recover interest on the sum awarded to them. The defendants contended that interest should only be awarded for the period between when the case was placed on the Case Flow List (being 14 November 2019) to the date of judgment. However, his Honour found that such a short period could not be justified given the complexity of the matter and in circumstances where the defendants had the money in respect of damages to which the plaintiffs were entitled for a period of more than 12 years. Conversely, there had been unreasonable delay on the part of the plaintiffs that justified a reduction in the period for which they could reasonably claim interest. His Honour found that a period of 8 years was appropriate for the award of interest in this matter.
Applegarth J
14 April 2023
The plaintiffs were successful in their claim for damages. Following the delivery of a judgment in the plaintiffs’ favour, the issue before his Honour was the period over which interest should be calculated. [3].
His Honour summarised the principles concerning the award of interest, including the following:
(1)An award of interest is not designed to punish the defendant, but rather seeks to compensate the plaintiff for having been kept out of the use of money as a result of the defendant’s wrong. [7].
(2)“Unreasonable delay in prosecuting the claim” may be a reason not to award interest for the whole period. [9]
(3)Where a party starts proceedings at the very end of the limitations period, there is an obligation to proceed with due expedition, any later delay is less likely to be excused. [15].
(4)The rationale of compensating the plaintiff by an award of interest is weakened where the plaintiff has been responsible for unreasonable delay because such delay contributes to the diminution in the quality of evidence, and that detriment may be unrecognised, even by the parties. [19]
(5)Although specific prejudice may be able to be identified, general prejudice may be inferred from a lengthy delay. [19].
(6)Unreasonable delay adds costs. Part of the additional costs, where there has been unreasonable delay, is the unavailability (because of their departure) of personnel, legal representatives, witnesses and representatives of clients who are familiar with the case. [20].
(7)While there are steps that a defendant can take to protect themselves from unexplained delay by a plaintiff, the plaintiff is usually the party driving the proceeding. [21], [22].
(8)A defendant that can point to actual prejudice as a result of unreasonable delay may have a higher claim to the favourable exercise of the discretion not to award interest for a period. However, delay that is attributed to the plaintiff is usually taken to have caused financial detriment to the defendant. [23].
His Honour analysed the conduct of the parties during the entire period between the commencement of proceedings (being a day before of the expiration of the limitation period) and the date of judgement by dividing it into five periods. Each period involved some delay by either the plaintiff or by both parties. [53]. However, his Honour formed the view that the plaintiffs had provided an adequate explanation for the periods of delay. [41].
His Honour was prepared to accept that some general prejudice to the defendant could be inferred by the reason of the delay itself. [58]. Further, although his Honour regarded the plaintiffs’ explanations for delay had “substantial validity”, he ultimately found that the relevant period of 12 years was excessive, even for a matter of such complexity. Relevantly, his Honour noted:
“… having regard to the various periods and the overall period that the plaintiffs’ insurer took to commence the proceeding and then litigate it to trial, I conclude that the plaintiffs did not conduct the proceeding with appropriate expedition”. [69].
In relation to the period for which interest should be awarded, his Honour concluded:
“The matter took longer than it should have. Both parties bear some responsibility for this delay. However, there were periods of unreasonable delay and, overall, the plaintiffs did not act with the expedition required of them. …. I consider that the period over which interest should be awarded should be confined to a period of 8 years”. [79] – [80].
S Parvez