GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] [1992] NSWCA 94

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] [1992] NSWCA 94

Although an error was identified in the assumption regarding the rate of depletion of the damages fund (being some 25 years, not 9), this did not go to the root of the decision to order a retrial, nor did it justify reopening and review. The discretionary power to set aside or vary a judgment before entry should be exercised only in exceptional circumstances, which were not present here; the errors could be corrected on retrial. Motion to set aside or vary judgment dismissed.

Parties
Claimant: Government Insurance Office of New South Wales; Opponent: Leah Rosniak
Jurisdiction
Australia
Judgment Date
29 October 1992
Procedural Posture
Motion to Set Aside or Vary Judgment Before Entry / Post Appeal, Pre Entry of Judgment in Court of Appeal
Outcome
Motion to set aside or vary the judgment is dismissed with costs.
Legal Topics
Setting Aside Judgments, Finality of Litigation, Personal Injury, Discount Rates, Calculation of Present Value, Review and Variation Before Judgment Entry
Practice and Procedure Damages Setting Aside Judgments Finality of Litigation Personal Injury Discount Rates Calculation of Present Value Review and Variation Before Judgment Entry

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Parties

Government Insurance Office of New South Wales

Claimant

Leah Rosniak

Opponent

Procedural Posture

Motion to Set Aside or Vary Judgment Before Entry / Post Appeal, Pre Entry of Judgment in Court of Appeal

Legal Issues

  1. 1 Whether the Court should exercise its discretion to set aside or vary a judgment before entry under Pt40 R9(1) of Supreme Court Rules
  2. 2 Whether errors or misconceptions justify reopening orders of the Court of Appeal after an appeal but before entry of judgment
  3. 3 Whether assumptions about the depletion of damages fund amount to an error going to the root of judgment warranting review or retrial

Ratio Decidendi

Although an error was identified in the assumption regarding the rate of depletion of the damages fund (being some 25 years, not 9), this did not go to the root of the decision to order a retrial, nor did it justify reopening and review. The discretionary power to set aside or vary a judgment before entry should be exercised only in exceptional circumstances, which were not present here; the errors could be corrected on retrial. Motion to set aside or vary judgment dismissed.

Court Disposition

Motion to set aside or vary the judgment is dismissed with costs.

Orders

  • The motion to set aside or vary the judgment of the Court is dismissed.
  • The judgment of the Court is to be entered without delay.