PROCEDURE UNDER RULES OF COURT – JUDGMENT AND ORDERS –
ORDER
SANCTIONING COMPROMISE – where applicant was a person under a legal
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND –PROCEDURE UNDER RULES OF COURT – JUDGMENT AND ORDERS –ORDERSANCTIONING COMPROMISE – where applicant was a person under a legaldisability as a result of a severe head injury sustainedin a motor vehicleaccident – where applicant’s claim for damages for personal injuriesagainst the respondent was settledat mediation before a proceeding wascommenced in the court to prosecute the claim – where applicant filed anoriginating applicationfor sanction of the compromise – where compromisebetween the applicant and respondent was sanctioned by order of the courtthatstated it was made pursuant to s 59 Public Trustee Act 1978 (Qld) –where compromise and associated orders carried into full effect – whereapplicant subsequently claimed that thecourt had no jurisdiction to sanctionthe compromise and the compromise was voidable at the applicant’s election– where
respondent sought confirmation from the court that the order was
within the jurisdiction conferred by s 59 Public Trustee Act 1978 or
within the parens patriae jurisdiction of the court – whether the
court had jurisdiction to sanction the compromise where the applicant had not
commenced
a proceeding to prosecute the claim for damages
Guardianship and Administration Act 2000, s 240
Public Trustee
Act 1978, s 59
Supreme Court Act 1995, 253
Australian
Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104
(2007) 70 NSWLR 201,
considered
Fowler v Gray [1982] Qd R 334, considered
Fylas Pty
Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, considered
Johnson v
Director-General of Social Welfare (Vict) [1976] HCA 19
(1976) 135 CLR 92,
considered
Katundi v Hay [1940] St R Qd 39, considered
Phillips
v Munro [1957] St R Qd 427, considered
Re Public Trustee of
Queensland [2000] 1 Qd R 409, considered
Scholes v Douglas [1911]
St R Qd 183, considered
Scutt v Bailey (No 1) [1964] WAR 74,
distinguished
Secretary, Department of Health and Community Services v
JWB and SMB [1992] HCA 15
(1992) 175 CLR 218, considered
Smith v Reynolds [1989] VicRp 25
[1989]
VR 309, followed
Wood v The Public Trustee of Western Australia (1995)
16 WAR 58, followed
Judgment (2 paragraphs)
[1]
The applicant does not concede that there was success by the respondent because there were four points agitated by the parties and the applicant succeeded on three of them. That, however, is an analysis of the matter that does not reflect the real substance of the dispute and that is whether the applicant was at liberty to continue with her personal injuries claim. That is by far the significant dispute that was between the parties. The other aspects of it were incidental to that. That issue has been resolved in favour of the respondent.
[2]
Because of my reservations about making any substantive order under the liberty to apply provision, I am going to dismiss the application. However, I am proposing to reflect the success that the respondent had in the dispute that was argued before me by ordering that the applicant pay the respondent's costs of that application to be assessed.
Parties
Applicant/Plaintiff:
Dickson
Respondent/Defendant:
Australian Associated Motor Insurers Limited
Legislation Cited (13)
Guardianship and Administration Board Act 1986(Vic)
[27] The continuing role of the parens patriae jurisdiction has also been acknowledged in other Western Australian decisions including by the Full Court in Morris v Zanti (1997) 18 WAR 260, 284-286 and by Heenan J in Cadwallender v The Public Trustee [2003] WASC 72 at [27]- [31].
[28] There are recent Queensland decisions concerning the compromise of a personal injuries action by an adult with impaired capacity that were not concerned with an analysis of s 59 of the Act, but rather with working out the application of the new regime set up under the GAA: Guardianship and Administration Tribunal v Perpetual Trustees Queensland Limited [2008] QSC 49; [2008] 2 Qd R 323 at [25].