MITCHELL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1993] NSWCA 183

MITCHELL vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and CRIPPS JJA 30 November 1992, 19 February 1993 [1993] NSWCA 183

COURTS AND JUDGES — Circumstances in which the court will exercise its discretion to reopen a case — Damages assessed and confirmed on appeal — not a jury trial — judgment not yet entered — supervening decision of the High Court changes the basis upon which the assessment was made. Held: The discretion should only be exercised in circumstances in which no different evidence would have been led reflecting the impact of the new decision and where the trial would not have been conducted in a materially different fashion. Even where this is so, given that the interests of justice are most often served by maintaining the finality of proceedings, exceptional circumstances are required to be shown as to why the discretion should be exercised. It was relevant that the exercise of discretion did not have the effect that a new trial before a jury would be required. All that was involved was a reassessment of damages by the Court. CONSENT ORDERS — Nature of a consent order — distinction between a consent order and an agreement between the parties as to the quantum of an item of an award litigated before the court.

Clarke JA The claimant has sought an order that the orders made by this Court on 6 November 1992 be set aside and that there be a rehearing of so much of the claimant's appeal as related to the award for gratuitous assistance given to the plaintiff in respect of specified periods. In view of the unusual nature of the application and the somewhat complicated circumstances it is desirable that I provide a short history of the action.

The claimant was involved in a motor vehicle accident on 30 July 1986 and suffered severe injuries. He sued to recover damages in respect of those injuries and at the trial in November 1989 liability was not contested. Damages were assessed by Master Greenwood at $723,500 but the learned Master deferred entering judgment because of the possibility of an order being made under the Protected Estates Act ("the Act"). Such an order was made in due course and on 15 June 1990 judgment was entered for the claimant in the sum of $760,153.87 (the difference between the two sums represented the addition of management fees) and it was ordered that this sum be paid into court to be paid out to the Protective Commissioner.