Contested applications for interim payment are not commonly seen, but that issue arose in Sripathi v Central Coast Local Health District [2022] NSWSC 378 (on Caselaw).
The plaintiff alleged that he sustained catastrophic injuries as the result of the mismanagement of his birth at the defendant’s hospital in August 2015. The Court noted (apparently in the absence of evidence regarding NDIS supports) that the plaintiff’s parents were in no financial position to provide adequate care at the required levels of support. Based upon expert rehabilitation opinion, the provision of assistance to the plaintiff would have a material effect upon his development.
The defendant did not dispute that if the plaintiff were to succeed in the proceedings, he would obtain an award of “substantial damages”. However, there was no agreement that the plaintiff could satisfy the Court on the evidence that he will succeed on liability. Also raised was the argument that the available evidence strongly suggested that any payment made will not be capable of recovery if the plaintiff fails in his claim.
The Court held at [46] – [47]:
Doing the best I can, I am satisfied in the circumstances that, if the proceedings went to trial, the plaintiff would obtain a judgment for damages against the defendant. There is no dispute that those damages, if recovered, would be substantial. I am not required to be certain of that prospect. I am, however, satisfied on the balance of probabilities.
As noted above, the defendant also opposes the making of an order for an interim payment upon the basis that the plaintiff is not, by reason of his family circumstances, likely to be able to repay the amount of the interim payment if ultimately he does not succeed. I do not understand that submission. Section 82 requires an assessment of the probability that the plaintiff will succeed. Once that assessment has been made favourably to the plaintiff, it forecloses, except in limited circumstances, the availability of some additional or further consideration, as if by way of a discretionary review, of that conclusion. Section 82(4)(c) certainly provides that I may not make an order for an interim payment if the defendant satisfies me that it would, having regard to the defendant’s means and resources, suffer undue hardship if such a payment were to be made. Apart from the defendant’s concern that the money may not be repaid, about which the subsection is silent, the defendant does not suggest that a payment of $60,000 would cause it to suffer undue hardship.
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