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Cases Cited: Beavan v Pengelley (1967) 86 WN (Pt 1) (NSW) 90
Clement v Basset (1987) 46 NTR 36
In re Barbour’s Settlement Trusts [1974] 1 WLR 1198
In re Birchall, Wilson v Birchall (1880) 16 Ch D 41
Karvelas (an Infant) v Chikirow (1976) 26 FLR 381
Layne Carmel Dixon by her next friend Andrew Nigel Dixon v Clarke [2017] WASC 310
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Category: Procedural rulings

Parties: Brianna Cleary (plaintiff)
Illawarra Shoalhaven Local Health District (defendant)

Representation: Solicitors:
Gerard Malouf & Partners (plaintiff)
Makinson d’Apice Lawyers (defendant)

File Number(s): 2019/00176910

Publication restriction: Nil.

JUDGMENT

Introduction

1. This is the second occasion on which a Judge of this Court has been asked to approve a compromise – reached as long ago as 21 December 2023 – in a medical negligence claim brought by the plaintiff, currently aged 12. It is also – given the orders I propose to make – the second occasion on which a Judge of this Court has declined to entertain the application due to shortcomings in the material presented precluding a determination of whether, in all the circumstances, the resolution is beneficial to the interests of the plaintiff: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29].

2. Given the above, and because the responsibilities placed upon those who act on behalf of persons under a disability are, possibly, less well-known than they once were, I propose to restate aspects of the accepted procedure when seeking the Court’s approval of compromises of actions by persons under a disability.

Aspects of the accepted procedure for judicial approval

3. In resolving whether, in all the circumstances, the compromise of the action best serves the interests of the plaintiff, the Court does not, in effect, embark upon a trial of the action. Rather, the Court is informed, through evidence, of the material facts and issues involved in the litigation: there must be “proper evidence before the court… as to justify the exercise of the jurisdiction”: In re Barbour’s Settlement Trusts [1974] 1 WLR 1198, 1203 (‘In re Barbour’s Trusts’). In a case such as this, the material received by the Court should extend to the key liability, causation and damages evidence.

4. The evidence must include an opinion from counsel that is directed to the ultimate question. This requirement is long-standing: In r**e Birchall, Wilson v Birchall (1880) 16 Ch D 41, 43. More recently, it has been described as “settled practice”, except possibly in relation to “smaller claim[s]”: Clement v Basset (1987) 46 NTR 36, 37 (‘Clement’), citing Karvelas (an Infant) v Chikirow (1976) 26 FLR 381, 382.

5. The opinion must be comprehensive, detailed and reasoned, and based – importantly, evidently based – upon all the facts relevant to the plaintiff’s claim. In a case such as this, the opinion, at a minimum, should: identify the key liability and damages issues; involve discussion and analysis of those issues by reference to the evidence; detail the measure of any liability discount and the reasons for it; provide an assessment of the likely quantum; detail the measure of any quantum discount and the reasons for it; and identify the various factors – the advantages and disadvantages – of the litigation continuing that were considered. In short, the advice must comprehensively deal “with those matters of fact and law necessary for the court to be satisfied that all aspects of the case have received proper consideration”: Layne Carmel Dixon by her next friend Andrew Nigel Dixon v Clarke [2017] WASC 310 at [16].

6. As the Court is typically required to the assess the appropriateness of a settlement when the action is yet to be tried, in determining whether the compromise is in the best interests of the plaintiff, it “necessarily relies heavily” on, albeit is not bound by, counsel’s opinion: Clement at 37; Beavan v Pengelley (1967) 86 WN (Pt 1) (NSW) 90 at 90-91; In re Barbour’s Trusts at 1201.

7. In In r**e Barbour’s Trusts, Megarry J explained the reasons for that reliance in the passage which, although lengthy, warrants setting out in full (at 1201):

“…the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned. The solicitors must see that all the relevant matters are put before counsel, that the right questions are asked, and that the guardian ad litem or next friend of the minor fully understands and weighs counsel's advice when it is given. Counsel has to discharge what in my judgment is one of the most important and responsible functions of the Bar, that of helping those unable to help themselves; and the guardian ad litem or next friend must understand the advice given and carefully weigh the advantages of the proposed compromise to the minor against the disadvantages.”

8. As Megarry J later remarked, the responsibilities referred to “remain of high importance in the due administration of justice”: at 1203. They remain so in 2026.

The present application

9. The plaintiff brings proceedings for damages through her tutor (who is her mother), alleging that she suffers from a range of neurocognitive and physical disabilities which result from the failure of the defendant (including those for whom it is vicariously liable) to properly manage and treat her mother. The thrust of the plaintiff’s claim, which is by no means clear from the statement of claim filed on 6 June 2019, is that the overuse of Syntocinon during perinatal care resulted in “hyperstimulation” (viz., excessive contractions) of the uterus, such that the foetus was at risk of hypoxia. That risk is created because, when the frequency of contractions becomes higher, there is less relaxation time, thereby depriving the foetus of oxygenated blood.

10. In this case, whilst the use of Syntocinon was accepted to be appropriate to stimulate contractions, the plaintiff contends that its use should have been ceased when uterine hyperstimulation occurred, and a caesarean section should have been performed earlier than when it was. The failure to proceed in that way is alleged to have caused, or materially contributed to, the injuries she allegedly suffered.

11. The plaintiff qualified a number of eminent experts to establish her claim, including Professor Michael O’Connor AM, an eminent specialist in obstetrics and gynaecology, and Dr Michael Harbord, a paediatric neurologist. Their reports, and at least some of the expert evidence served by the defendant, are in the 500-or-so pages of material tendered on the application.

12. The solicitor for the plaintiff, in his affidavit affirmed 12 June 2024, described the claim as involving “complex medical and factual issues”, yet they are only identified in exceedingly general terms and, even then, there is no analysis of them by reference to the evidence.

13. A more recent affidavit from a solicitor working under the supervision of the solicitor for the plaintiff, affirmed 31 March 2026, attached the plaintiff’s school reports from 2021 to 2025 (around 100 pages of material). Neither in the affidavit, nor elsewhere in the evidence on this application, was there any attempt to discuss and analyse what these reports are said to demonstrate – for, or against, the case propounded by the plaintiff.

14. The material included joint “advice” from senior and junior counsel: the first, dated 13 February 2024, is slightly under 3 pages; the second, dated 26 May 2026, is 1 page.

15. Without intending to be unduly critical, and recognising that its confidential nature limits what can be said, I regard the opinions – specifically, the lack of detail and analysis of the evidence – to fall below what the Court is entitled to expect and require in an application of this kind. There are other problems with the opinions. One example is that, in relation to the most recent opinion, it is unclear, on the face of it, what material was provided to counsel. These shortcomings are not intended to be exhaustive.

16. The exercise of this Court’s protective function to approve the compromise is no mere formality; it is certainly not a “rubber stamp” upon the proffering of an opinion from counsel, in bare terms, that is supportive of the settlement.

17. There are other deficiencies with the material. I will illustrate them with an example. It relates to the recent report from Dr Harbord dated 30 March 2026. Whether that report, the materiality of which is not self-evident, was provided to senior and junior counsel is unknown and, even if it was, it was certainly not referred to in the 1-page advice.

18. Regrettably, the result is that it has simply not been possible to determine, with the appropriate assistance, whether the resolution is in the best interests of the plaintiff. It is also regrettable for the further reason that similar problems beset the earlier approval application.

19. There is a further matter. The application for approval of the settlement – which, as earlier noted, occurred on 21 December 2023 – has been attended by considerable delay which is, if the settlement is approved, most likely to the detriment of the plaintiff. The Court’s expectation is that the deficiencies in the evidence will be promptly addressed to enable a listing of the application shortly thereafter. Furthermore, I will also require the solicitor for the plaintiff to explain the delay. The explanation must address why the applications for approval were only pursued when they were and, importantly, why they were not pursued at an earlier point in time proximate to the date settlement was reached.

Orders

20. For the above reasons, I make the following orders:

21. Adjourn the hearing of the plaintiff’s application for approval.

22. Order that, by 15 June 2026, 4pm, the solicitor for the plaintiff file with the Chambers of Chen J an affidavit explaining the delay in seeking judicial approval.

23. List the matter for directions before Chen J on 16 June 2026 with a view to listing the application for approval for hearing, or making directions for the preparation of the matter for trial and for further case management in the Professional Negligence List.

24. Order that the defendant's costs of the appearance on 1 June 2026 be reserved.

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