Hunt v Marellen Pty Ltd

The notices of motion for approving settlement

1. By notices of motion that were filed on 22 July 2024, Joseph and Summer each seek approval of a proposed settlement of proceedings in relation to their nervous shock claims, by way of judgment for the defendant, and an order that each party bear their own costs of the proceedings.
2. By separate notices of motion of the same date, Joseph and Summer seek approval of a proposed settlement of the proceedings concerning their dependency claim. The proposed settlement would entail judgment for the plaintiff in the amount of the nominated judgment sums, which would be paid to the NSW Trustee and Guardian pursuant to s 77 of the Civil Procedure Act 2005 and held on behalf of each of them until they attain the ages of 18 years, and an order that the defendant pay their costs as agreed.
3. Separate reports prepared by a psychiatrist, Dr C Rikard-Bell, in relation to Joseph and Summer, were provided to the Court. The reports canvass Dr Rikard-Bell's respective assessments of the impact on them of their father's loss. I have also been provided with a confidential memorandum of advice prepared by counsel briefed by the plaintiffs, Andrew Joseph, that candidly canvasses the strengths and weaknesses of the plaintiffs' cases.
4. Affidavits by Kristie McMahon, who as I noted earlier is the plaintiffs' tutor, in respect of Joseph (dated 27 June 2024) and Summer (also dated 27 June 2024) were read at the hearing, in which she expressed her awareness that the settlements, if approved, would bring to an end any possibility of future claims by Joseph and Summer against the defendant in respect of the loss of their father. She noted the disbursements to be made from the proceeds and requested that the settlement orders be made.
5. Affidavits by Matthew Lindeman, the plaintiffs' solicitor, both dated 5 July 2024, were also read, in respect of Joseph and Summer, in which he expressed his view that liability would be difficult to establish if the matter proceeded to trial because of, among other matters, the unknown cause of the sinking of the Night Raider. He expressed his view that the proposed settlements are reasonable in all the circumstances and noted that he would not be claiming any solicitor/client fees in either matter.

Legislation

1. Sections 75, 76, and 77 of the Civil Procedure Act 2005 (NSW) relevantly provide: "75 Settlement of claim made on behalf of, or against, person under legal incapacity (1) This section applies to any claim, enforceable by proceedings in the court, that is made by or on behalf of, or against, a person under legal incapacity. (2) If, before proceedings are commenced with respect to any such claim, an agreement for the compromise or settlement of the claim is made by or on behalf of the person under legal incapacity, the court may approve or disapprove the agreement. (3) An agreement disapproved by the court does not bind the person under legal incapacity. (4) An agreement approved by the court binds the person under legal incapacity as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent. 76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity (1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons - (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court finds, during the course of the proceedings, to be incapable of managing his or her own affairs. (2) The court may make a finding referred to in subsection (1) (c) only on the basis of evidence given in the proceedings in which it is made, and such a finding has effect for the purpose only of those proceedings. (3) Except with the approval of the court, there may not be - (a) any compromise or settlement of any proceedings to which this section applies, or (b) any acceptance of money paid into court in any such proceedings, as regards a claim made by or on behalf of, or against, a person referred to in subsection (1). (3A) However, the approval of the court is not required in relation to any agreement for the compromise or settlement of any matter in dispute in proceedings commenced by, or on behalf of, or against, a person under legal incapacity if, on the day the agreement for the compromise or settlement is made, that person has attained the age of 18 years and is not otherwise a person referred to in subsection (1). Accordingly, subsections (4)-(6) do not apply in relation to any such agreement. (4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement. (5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made. (6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent. 77 Payment of money recovered on behalf of person under legal incapacity (1) This section applies to money recovered in any proceedings on behalf of any of the following persons - (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs, pursuant to a compromise, settlement, judgment or order in any proceedings. (2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court. (3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including - (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate. (4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including - (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate."

Consideration

1. The Court's function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J (as his Honour then was), referring to the legislative scheme in the Compensation to Relatives Act 1987 (NSW), observed, at [29], in an oft-quoted passage: "The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640; …"
2. In accordance with Hammerschlag J's observations, in my view, the proposed settlements are beneficial, appropriate and in the best interests of Joseph and Summer. Accordingly, I approve the settlements in the terms set out in the paragraphs numbered (1) to (9) in the consent orders in respect of the dependency claim, as amended by hand by me with the parties' consent; and, in paragraphs (1) to (3) of the consent orders in respect of each of the nervous shock claims. I shall initial a copy of each of the three sets of orders and place them in the Court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2024