Larissa Strk, from the WA Supremes, has taken a leaf out of Sandy Street’s play book and decided a case on the grounds that were not pleaded. Medical negligence case sees extraordinary pre-trial bill … Solicitor-client costs … Compromised settlement before trial … Judge asks for details … Trustee to look carefully … Plus news from WA on judge deciding a case on grounds that had not been pleaded … Court in the Act
Solicitor/client costs would be up to $500,000 to be taken from the settlement; over and above $500,000 in party/party costs.
The bill for disbursements came to $462,000, plus interest.
After “confidential advice” from the plaintiff’s briefs, Michael Cranitch SC and Andrew Campbell, Justice Richard Cavanagh in the NSW Supremes agreed to a settlement of $3,750,000 inclusive of fund management, costs and disbursements.
Shenai Williams, 23, by her tutor Lisa Williams, sued the Hunter New England Local Health District over severe injuries that happened during her birth at Belmont Hospital.
The plaintiff is severely disabled, with cerebral palsy and hypoxic ischemic encephalopathy.
Serious complications developed during her birth, including shoulder dystocia. She claimed that the hospital should have ensured a senior obstetrician was on hand.
Further, she said there was a delay after her birth in the administration of adequate resuscitation.
Because there was conflicting medical evidence the judge said the case called for a compromised settlement, as it was difficult to predict what otherwise Ms Williams might have obtained.
Nonetheless, Cavanagh said there needs to be additional explanation or verification of the solicitor/client costs of $500,000.
After receiving an affidavit dated July 22, 2022 from Leslie Abboud, the plaintiff’s solicitor at personal injury law shop Gerard Malouf & Partners, Justice Cavanagh asked whether it was appropriate for further explanation about the amounts to come out of the settlement.
“The court has an overall supervisory function and a protective function. I raise this in this matter because the approach of the solicitors for the plaintiff was apparently to simply say that, without any sort of explanation or verification, there may be a further $500,000 to come out of the settlement by way of solicitor/client costs in a case which has not even had a hearing.
On any view, that is a significant amount.
I received a further affidavit from Mr Abboud, dated 25 July 2022. He broke down the cost estimate. It included a round sum of $500,000 in professional fees. On average, this equates to, for example $500 a hour for 1000 hours of solicitors’ time in preparing this medical negligence matter.”
The solicitor also provided details of the “significant” disbursements.
“Suffice to say that it is somewhat disturbing to learn that a case like this would take a million dollars in legal fees to get to a point of settlement shortly before the hearing.”
Ms Williams trustee is expected to “consider the extensive costs sought to be charged carefully”.
Williams v Hunter New England Local Health District
Larissa Strk, from the WA Supremes, has taken a leaf out of Sandy Street’s play book and decided a case on the grounds that were not pleaded.
More in anger than sorrow a Sand Groping appeal bench found that the appellant/defendant in a mother-daughter money stoush had been denied procedural fairness.
The whole thing has to go back and start again on matters that remain in dispute. Mitchell, Beech and Vaughan JJA said:
“An order for a new trial is, in all cases, a deplorable result; and one in which an appellate court should properly turn its attention to how, within the powers conferred on it, the result might properly be palliated.”
Hildegard Meiners sued her daughter Debra Gunn over what she thought was a $372,717 loan – the money coming from the proceeds of the sale of her home following the death of her husband.
Portion of the proceeds of sale paid for Mrs Meiners’ unit in the Masonic Village. The remaining money went to a deposit on another property in Gunn’s name, so that it allegedly would not affect her mother’s pension.
It turned out that Meiners didn’t like living with the Masons and sold her unit in the village. She transferred the proceeds of the sale to her daughter, understanding that Debra would use the money to buy her mother a place of her own.
Unfortunately, that didn’t happen and Gunn applied $210,000 of her mother’s money to pay off her own home loan with the CBA.
Debra claimed the money transferred to her after the sale of Meiners’ former matrimonial home was a gift.
Hilbergard was elderly, lonely, dependant, and socially isolated.
Strk found for her on the basis that the transfer of money amounted to unconscionable conduct – a claim that had never been pleaded.
Furthermore, Acting Justice Strk, as she then was, didn’t apply the correct test in assessing whether Gunn had the requisite degree of knowledge such that in accepting and retaining the transfers of $373,717.43 was unconscientious.
Disaster all around. Go back start again.
We’ve previously reported that when Strk was the principal registrar of the WA Supreme Court she was leapfrogged over Master Craig Sanderson and given an acting judicial appointment to cover for what was believed to be an absent Justice Joseph McGrath
McGrath at that stage had taken an appointment with the Royal Commission into Aged Care, Quality and Safety, but left the royal commission two months later for family reasons. Famously, he appeared in one of Christian Porter’s wedding photos.
It’s also been our melancholy duty to report in 2021 another appeal bench birching of the vowel-free acting judge, in a case where it took about a year to resolve the extent of supplementary discovery.
It fell to Mitchell and Vaughan JJA to remark that the delayed had an “unsatisfactory history”.
“It is to be hoped that a case manager of the proceedings would be in a position to resolve contested questions as to the scope of discovery quickly, ordinarily by ex tempore reasons which need not be elaborate …”