Miller bht Miller v South Western Sydney Local Health District t/a Bankstown-Lidcombe Hospital

Catchwords: CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – interim payment approval – where plaintiff incapable of managing affairs – interim payment made to manager of plaintiff’s estate

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 76, 77, 82
New South Wales Trustee and Guardian Act 2009 (NSW) s 41

Category: Principal judgment

Parties: Isabelle Miller bht Cindy Miller (Plaintiff)
South Western Sydney Local Health District t/a Bankstown-Lidcome Hospital (Defendant)

Representation: Counsel:
J C Smith (Plaintiff)
G F Mahony SC (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Norton Rose Fullbright (Defendant)

File Number(s): 2022/00363910

JUDGMENT – Duty – Ex tempore (revised)

1. Before me is a notice of motion which seeks various orders including the appointment of a financial manager and an application for approval of an interim payment pursuant to s 82 of the Civil Procedure Act 2005 (NSW). The plaintiff is under an incapacity and is unable to manage her affairs. She was born on 22 July 2017 and is now eight years of age. She has cerebral palsy and is severely disabled.

2. Breach of duty has been admitted by the defendant and the quantum of damages is the only matter left in the proceedings which are listed for four weeks in 2026.

3. The defendant has agreed to make an interim payment of $2.2 million.

4. Before me is the following evidence:

5. An affidavit of the tutor, Cindy Miller, affirmed on 29 October 2025;

6. An affidavit of William Mackay Johnston of Perpetual Limited sworn on 15 September 2025;

7. An affidavit of the plaintiff's solicitor, Nicola Simone Jandura affirmed on 24 October 2025; and

8. A short opinion in support of the application for an interim payment signed by Duncan Graham SC, counsel for the plaintiff.

9. The affidavits of Ms Jandura and Ms Miller, the tutor of the plaintiff, set out the reasons why the tutor wishes for Perpetual Limited to be appointed financial manager. I accept that Perpetual Limited is a suitable person to be manager of the estate and I will make that order. I observe also that the plaintiff will no doubt succeed in achieving damages far in excess of $2.2 million.

10. In all of the circumstances I make the following orders:

11. Pursuant to s 82 of the Civil Procedure Act 2005 (NSW) the defendant is to make an interim payment to the plaintiff in the sum of $2,200,000 ("the interim payment").

12. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW) the interim payment is approved.

13. Pursuant to ss 41(1)(a) and (b) of the New South Wales Trustee and Guardian Act 2009 (NSW) the Court declares that the plaintiff is incapable of managing her own affairs, and orders that the plaintiff's estate be subject to management under the New South Wales Trustee and Guardian Act 2009 and appoints Perpetual Limited as manager of the plaintiff's estate.

14. Pursuant to s 77(3)(b) of the Civil Procedure Act 2005 (NSW) the interim payment is to be paid directly to Perpetual Limited as manager of the plaintiff's estate.

15. The defendant is to have credit for the interim payment on any final settlement or verdict in favour of the plaintiff.

16. The plaintiff's entitlement, if any, to interest on damages will be reduced to take into account receipt of the interim payment.

17. Costs are to be costs in the proceedings.

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