ROGERS v WENTWORTH [1994] NSWCA 269

ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and HANDLEY JJA and BROWNIE AJA 17 August 1994, 12 September 1994 [1994] NSWCA 269

INTEREST — jury awarded plaintiff $2000 damages for assault in 1977. Trial Judge awards interest on damages at rate of 2% until judgment. Total judgment less than $3,000. Defendant ordered to pay one half of plaintiff's costs under SCR Pt52 R24. — Both parties appeal from costs order and plaintiff appeals from award of interest — whether order correct — held: (1) determination of costs issue could be affected by rate of interest to be applied; (2) interest rate of 4% should have been applied since the damages were awarded for an injury which was substantially complete in 1977 and did not relate to the whole period between the assault and the trial: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54; Bennett v Jones (1977) 2 NSWLR 355 applied.

ORDER Direct that case be listed for further hearing in light of the above reasons.

Priestley and Handley JJA and Brownie AJA On 17 August 1994 there were proceedings in this court arising from the trial earlier this year of a claim brought by Ms K Wentworth against her former husband, Mr Rogers, for damages for an assault he made on her on 29 January 1977. There had been a previous trial of the same cause of action. On that occasion there had also been tried a claim by Mr Rogers against Ms Wentworth for damages for malicious prosecution. The verdicts given by the jury and the judgments in that case were later set aside by this court and a new trial ordered, the costs of the first trial to abide the result of the second. Before the new trial began, the hearing of the malicious prosecution claim was severed from that of the assault claim. So far, only the assault claim has been retried. Mr Rogers' claim for malicious prosecution has not yet been retried.