Leach by her tutor Leach v Harpur

District Court of NSW|2017-08-15|Before: Mr Justice P

Plaintiff: Mr A J Stone SC / Dr A Silink Defendant: Mr I D M Roberts SC

Solicitors: Plaintiff: Slater & Gordon Defendant: Curwoods Lawyers File Number(s): 2013/336366 Publication restriction: None

Judgment

These proceedings are listed for hearing on 6 November 2017. As is set out below, the parties entered into consent orders on 1 April 2016 in relation to contributory negligence. The plaintiff now seeks to revoke that agreement. The plaintiff's notice of motion filed on 21 July 2017 seeks orders as follows: 1. The orders of the court of 1 April 2016 approving the agreement between the parties as to contributory negligence are revoked. 2. In place thereof the following orders: 1. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW) the agreement between the parties as to 30% contributory negligence be approved, with the 30% contributory negligence to be applied to relevant and applicable heads of damage in accordance with law. 2. Nothing in the foregoing order to be taken as determining between the parties whether contributory negligence applies to all heads of damage sought by the plaintiff or only to some of the heads of damage sought by the plaintiff, resolution of that issue being reserved for hearing.

The plaintiff's claim

On 14 February 2011, the plaintiff observed her brother being run down by a motor vehicle which was insured by the NRMA. His injuries are serious. As a consequence of the injuries sustained in the accident, the plaintiff's brother was made an interim and ultimately a permanent member of the Lifetime Care & Support Scheme.
The plaintiff sustained mental harm as a result, this being a diagnosable psychiatric condition, and a separate claim was pursued on her behalf as well as on behalf of her brother. Liability was denied on the basis of the absence of any fault on the part of the insured driver by s 81 notice served on 6 August 2013.

The settlement of liability and contributory negligence in relation to the claims

On 24 February 2016, the parties reached agreement in the plaintiff's brother's proceedings that the defendant would admit liability for a blameless accident with an agreed 30% reduction for contributory negligence. The following statement was made in relation to the plaintiff's sister, who is the plaintiff in these proceedings: "19. The approval of the within matter also affects the outcome in the matter of Kimberly Leach v Harpur (13/336366). Those proceedings relate to the Plaintiff's sister who saw the accident or the immediate aftermath of the accident, and suffered catastrophic psychiatric reaction." (Confidential advice of Mr P J Frame dated 29 March 2016)

Approval by the District Court on 1 April 2016

On 1 April 2016, both Tyler Leach and Kimberly Leach's proceedings came before the court for approval of the agreed contributory negligence percentage.
Separate Consent Judgments were handed up in each matter (see the affidavit of Tom Mithieux dated 27 July 2017, Annexure B (for Tyler Leach) and Annexure C (for Kimberly Leach)).
The evidence relied upon on the approval application was all filed in the Tyler Leach matter. There were no separate affidavits in these proceedings; only a short paragraph in Mr Frame's advice concerning her brother referred to the plaintiff, and then only in a fleeting fashion.
The evidence before the court in relation to Tyler's proceecings comprised the following: 1. Affidavit of Tom Mithieux of 30 March 2016; 2. Affidavit of Simon Leach (Tutor) sworn 24 March 2016; and 3. Confidential advice of Peter Frame of counsel.
The affidavits and confidential advice did not raise any issue as to the possible interaction of s 30(3) of the Civil Liability Act 2002 (NSW) and s 7K and/or s 7L of the Motor Accidents Compensation Act 1999 (NSW) in relation to either the plaintiff or her brother. Nor were these issues raised from the Bar Table with the court when the matter was under consideration for approval.
The Consent Judgments approved on 1 April 2016 in relation to both Tyler Kimberly Leach were in the following terms: 1. In accordance with section 30 of the Civil Liability Act, the judgment sum is to be reduced by 30% by reason of the contributory negligence of Tyler Leach. 2. These terms not to be disclosed except as required by law.
Tyler Leach, the plaintiff's brother, is a permanent member of the Lifetime Care & Support Scheme. Mr Stone SC told me that the issue of contributory negligence in relation to his past and future treatment and care was of little significance. Membership of the Lifetime Care & Support Scheme is on a no fault basis, and thus no discount for contributory negligence applied to the benefits recoverable under the scheme.
However, according to Mr Stone SC's written submissions, there are s 83 payments and Medicare payments pre-dating Tyler's acceptance as an interim participant in the Lifetime Care & Support Scheme on 7 April 2011 (see the Affidavit of Tom Mithieux dated 4 August 2017 at Annexures A, B and C). These would arguably be in the same position as the costs for his sister, the plaintiff in these proceedings. No reference was made or consideration given in the evidence before the court on the approval application to the inappropriateness of any deduction for contributory negligence to those payments in circumstances where Tyler Leach was entitled to a s 7K and/or s 7L no fault benefit. This is only one of the uncertainties in this application which have caused me concern in relation to the plaintiff's argument that she (but not her brother) wishes to withdraw from the agreement.

The plaintiff's legal advisers reconsider their position

As is set out in Annexures G, H, I, J and K of the affidavit of Tom Mithieux of 27 July 2017, the plaintiff, in the course of retaining new counsel, recently considered whether there was in fact any entitlement by the defendant to rely upon contributory negligence by reason of the interaction between s 30(3) Civil Liability Act 2002 (NSW) and s 7K and/or s 7L Motor Accidents Compensation Act 1999 (NSW). These provisions, together with the relevant provisions for the entry of judgment, the approval of settlements, the correction of irregularities and the enforcement of agreements are set out below.

The relevant statutory provisions for the entry of judgment

These are as follows.

Rule 36.4 Uniform Civil Procedure Rules 2005 (NSW)

In Palmer v Clarke (1989) 19 NSWLR 158, Kirby P, after considering the previous legislative framework governing the District Court, namely the District Court Act 1973 (NSW) and District Court Rules 1973 (NSW), explained the effect of District Court judges pronouncing judgment or making orders: "Under Pt 31, r 15 of the District Court Rules it is not ordinarily necessaryfor a party to file a form of judgment or orders. It takes effect from themoment it is pronounced. Rights and obligations then attach to it. Executionmay, unless stayed, be levied. Time to exercise appeal rights begins to run.Interest begins to run. It is notable that this is the way the respondents hereapproached the judgment."
These concepts have now been encapsulated in the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW). Rule 36.4 Uniform Civil Procedure Rules 2005 (NSW) provides: "36.4 Date of effect of judgments and orders (1) A judgment or order takes effect: (a) as of the date on which it is given or made, or (b) if the court orders that it not take effect until it is entered, as of the date on which it is entered. (2) Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor's certificate is filed. (3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules."
Rule 36.4(1) distinguishes between a judgment or order "given or made" and "entered". The wording of this rule governs the scenarios where a "judgment or order" takes effect. Rule 36.4(1)(a) provides that judgment or order takes effect "as of the date on which it is given or made". This sub-rule is silent on the requirement for entry of judgment or order for the judgment or order to take effect. If judgment or order is to take effect on some other date, the court may order the judgment or order to take effect "until it is entered" (r 36.4(1)(b)) or on a date ordered by the court (r 36.4(3)). The power conferred by r 36.4(3) on the court to order when a judgment or order takes effect appears to be of wide import.
This rule was not, however, considered to be of any importance by the Court of Appeal in any of its decisions in relation to entry of orders on JusticeLink. This is unfortunate, as r 36.4 appears to envisage a two-tier procedure whereby a judgment may be given or an order may be made (including an order deferring, or fixing a date for, the entry of judgment or order) by a judicial officer, and in relation to entry of judgments and orders, an administrative procedure, which is governed by r 36.11 UCPR.
Rule 36.11 UCPR provides: "36.11 Entry of judgments and orders (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. (2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered: (a) when a document embodying the judgment or order is signed and sealed by a registrar, or (b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs. (3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005. (4) This rule does not limit the operation of rule 36.10."
It would appear that nothing in r 36.11 UCPR curtails the operation of r 36.4 as to when a judgment or order take effect. Rule 36.11 deals with the entry of judgments or orders, which is the second limb to r 36.4(1). However, as the Court of Appeal did not consider these provisions relevant, I can do no more than note them.

Entry of orders relative to enforceability

Section 133 Civil Procedure Act 2005 (NSW) provides: "133 Judgments and orders unenforceable until entered (1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules. (2) This section extends to: (a) any judgment, order, determination or decree of a court, and (b) any adjudication or award of a person having authority to make an adjudication or award, that may be filed or registered in the court, or of which a certificate may be filed or registered in the court, under any other Act or law. (3) In subsection (2), "law" includes: (a) a law of the Commonwealth, and (b) a law of another State or Territory, and (c) in relation to the Supreme Court, a law of a foreign country."
Enforcement of judgments is dealt with under Part 39 UCPR, and additional measures for enforcing judgments and orders of the Supreme Court and District Court are dealt with under Part 40 UCPR.
In Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542, Nicholas J examined a situation where an offer of compromise was accepted but a dispute arose as to its enforceability. His Honour observed the following (at [19]-[22]): "19 The question of enforcement of a compromise involves different considerations. Judgments and orders are unenforceable until entered (s 133(1) of the Act). Part 36, r 36.11(1) directs that any judgment or order of the court is to be entered. The rule also provides the procedure by which judgments or orders are taken to be entered. 20 Part 20, r 20.29 is directed to the situation where a plaintiff or a defendant, being a party to an accepted offer, fails to comply with the terms of the offer. The rule entitles the innocent party to, inter alia, such judgment or order as is appropriate to give effect to the terms of the accepted offer. Thus it entitles the innocent party to seek the court's assistance in enforcing the agreement by which the claim was finalised. 21 In my opinion, when considered in its context, it is plain that the underlying purpose of each of r 20.27(3) and r 20.29 is different. The purpose for the entry of judgment under r 20.27(3) is to bring to finality the compromised claim, whereas r 20.29 enables a party to seek orders necessary to give effect to its rights under the compromise. It follows that it is not necessary for entry of judgment upon application under r 20.27(3) that a party intends to enforce the compromise. Consistently, in my opinion, the fact that payment of the agreed amount has already been made to the plaintiff in this case is not a ground for declining to take the procedural step which brings finality to the proceedings."
As the Court of Appeal noted in Mills v Futhem Pty Ltd at [42], an application may also be brought under s 73 Civil Procedure Act 2005 (NSW) to enforce an agreement which has not been the subject of a court order. This is the alternative relief sought by Mr Stone SC (see paragraphs 51 - 55 of his written submissions).
I also note that s 63 Civil Procedure Act 2005 (NSW) gives the court wide powers to correct irregularities, and that "irregularity" is the basis of the plaintiff's application under UCPR r 36.15. I drew the parties' attention to this provision but no submissions were made.

The recording of the order

On 1 April 2016 an entry was made into the computer records of the court in the following terms: 1. Pursuant to s 76 Civil Procedure Act 2005 (NSW), orders in accordance with paragraph 1 of the Consent Judgment and note the agreement inter partes in paragraph 2.
This is the only record made on the court's computer records system in relation to what occurred with approval of the settlement on 1 April 2016.

The order was not "entered"

Rule 36.11(2) UCPR provides as follows: "Unless the court orders otherwise, a judgement or order is taken to be entered when it is recorded in the court's computerised court record system."
Correspondence from the defendant (attached to the affidavits sworn by the solicitor for the plaintiff) asserts that the order was "entered" on 1 April 2016. However, this is now conceded not to be the case.
As the Court of Appeal held in Mills v Futhem Pty Ltd, the actual terms of the judgment or order must be "recorded" in the computer system for compliance with r 36.11(2). There is no relevant "entry" if the computer record merely refers to a document where the terms of the order are set out.
In Mills v Futhem Pty Ltd, Allsop P (Beazley JA and Handley AJA concurring) relevantly stated (at [27]): "There is no recording of the orders if all that is stated is that some orders exist. It would undermine the integrity of a computerised records system to have mere reference to pieces of paper in files treated as a recording of the judgment or order in the computerised records system. In my view, that is not what the rule means. To the extent that the record in the computerised system might be seen as some form of incorporation by reference, it does not record the judgment or orders. One cannot even ascertain the amount of the judgment in Order 1. One can put the two together, by looking at the file, but that is not adequate."
The effect of the decision in Mills v Futhem Pty Ltd is that the relevant order in this case would only be "entered" in the court's computerised records system when an entry incorporating the specific terms of paragraph 1 of the Consent Judgment was recorded in the system. This would require something such as the following to be recorded on the computer system: "The ultimate judgment for damages in the plaintiff's case to be reduced by 30% by reason of the contributory negligence of Tyler Leach". There is no such entry. Copies of the filed consent judgment have not been logged or scanned on to the court's computerised records system. The order made cannot be understood without reference to the paper file. The plaintiff therefore submits the judgment has not yet been "entered" in the terms required under r 36.11(2).
Mr Roberts SC concurs with these submissions and agrees that the orders had not been entered. Both parties agree that, unless I were of the view that Mills v Futhem Pty Ltd was unquestionably wrong in law, I should hold that r 36.16(1) UCPR applies. The parties' submissions as to whether or not the agreement between them and the orders which were made on 1 April 2016 should be set aside are set out in more detail below.
On the basis that the orders were not entered in the manner made mandatory by Mills v Futhem Pty Ltd, I agree that the orders were not entered.
However, that is not the end of the matter. As was pointed out in Mills v Futhem Pty Ltd at [42], failure to enter an order for judgment does not mean that the defendant is without a remedy, as s 73 may (if the terms of the bargain are clear) apply to this application. As to the terms of the parties' agreement, unlike the terms of the agreement in Mills v Futhem Pty Ltd (the unclearness of which required referral to the District Court for reconsideration), nothing could be clearer in the present case. Mr Stone SC did not suggest that any of the terms of the agreement were anything other than clear, and in those circumstances, the observations of Allsop P that "the District Court has control of its own proceedings" and could make orders disposing of them (at [42]) by entering the correct orders would apply.
Mr Roberts SC's brief submissions were to the point that, while the order had not been entered, the parties should be held to their bargain. There was no dispute as to the terms of what that bargain was.
Although not bringing an application under s 73, Mr Roberts submitted that the plaintiff should not be entitled to resile from this bargain merely because the order had been incorrectly recorded on JusticeLink. Mr Roberts referred fleetingly to whether prejudice would occur to his client if the plaintiff was permitted to do so. If such an argument is to be mounted, this can arise at the hearing, where the plaintiff can bring the s 73 application referred to at paragraphs [51] - [55] of Mr Stone SC's submissions.
For the reasons set out above, I am satisfied that the correct approach by the court is to enter the orders in accordance with the parties' bargain, and not to set those orders aside where the defendant submits that the plaintiff should be held to that bargain.
In making this finding I have followed the decisions of the New South Wales Court of Appeal concerning the court's approach to terms of settlement which refer to other documents not part of that order or otherwise irregularly not part of the court's electronic record.

Mills v Futhem Pty Ltd and the entry of judgment on JusticeLink

As is set out in Futhem Pty Ltd v Mills [2012] NSWDC 127 at [12]-[17], the orders for settlement made in those proceedings were not made on JusticeLink but on a system called CourtNet, its predecessor, a system of somewhat limited nature, in that it used free text where the end user must physically type in case information and orders. Such work was, in 2008, performed by the District Court Registry, and many shortened orders and brief notations were used as a result.
With the introduction of JusticeLink in mid-2010, these orders were migrated over electronically. This applied not only to the orders made in Futhem Pty Ltd v Mills but also to the orders made in Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687, the year before Mills v Futhem Pty Ltd, although the Court of Appeal raised none of the objections which would later be taken in Mills v Futhem Pty Ltd.
The traditional approach may be seen in Nau v Kemp & Associates Pty Ltd, McColl JA noted at [3] that the orders the subject of the appeal were as follows: "[3] The issue posed by this case is whether s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the "1946 Act") applies in circumstances where, in the District Court proceedings Campbell JA has described as the "2007 Action", the appellant and the State of NSW (the "State") agreed to Terms of Settlement dated 10 October 2008, which relevantly stated: By consent and without admission of liability: 1. Amend pleadings in accordance with "Annexure A [sic] to these Terms. 2. Verdict and Judgment for the Plaintiff against the Defendant in the sum of $220,000 inclusive of costs. …" [Emphasis added]
The amendments effected by Annexure A inserted in the Statement of Claim included a pleading that the appellant claimed damages in respect of injuries suffered by reason of the nature and condition of her employment, particulars of which encompassed "injury to the whole body". While the judgment sum was included in the court orders, these amendments were not; they were simply referred to as "Annexure A".
McColl JA considered the question of whether judgment was entered, and what for, was determined by the Judicial Registrar's orders, and not by JusticeLink or its predecessor CourtNet (CourtNet was also the system upon which the orders in Mills v Futhem Pty Ltd were recorded): "In making the orders set out in the Terms of Settlement it would appear the Judicial Registrar was exercising the jurisdiction to "give judgment, or order that judgment be entered, in the terms of an agreement between the parties" conferred by Uniform Civil Procedure Rules 2005 ("UCPR"), 36.1A. She was empowered to exercise that jurisdiction by s 18FB(1) of the District Court Act 1973 and the District Court Rules 1973, Pt 43A r 1. The judgment had effect as a judgment of the District Court (District Court Act, s 18FB(2)) and took effect on the day that order was made: UCPR, 36.4(1)(a). The District Court is a court of record: District Court Act, s 8. The State has paid the judgment."
Entry of the judgment sum was not the issue; the question was what was in Annexure A, which the defendant argued covered "every kind of conceivable injury that the plaintiff might have suffered" (at [167])."Annexure A" was not part of the orders entered and, on the Mills v Futhem Pty Ltd approach which the Court of Appeal would later take, could not have been part of the order.
McColl JA assumed (at [4]) that in entering orders in this form, the Judicial Registrar was exercising the jurisdiction conferred by r 36.1A UCPR, namely orders noting that the parties have settled, but not disclosing the amount. This practice has long been used in New South Wales: S Hoffnung & Co Ltd v Hesky [1977] 2 NSWLR 669. In Nau v Kemp & Associates Pty Ltd, the New South Wales Court of Appeal did not have the argument put before it that succeeded in Mills v Futhem Pty Ltd. It went ahead on the traditional basis of looking at the paper file and the judicial officer's orders.
However, two other Court of Appeal decisions immediately prior to Mills v Futhem Pty Ltd did consider that JusticeLink, rather than the paper file, was the source of the court's power to make orders. The first of these is Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245. Young JA observed the following in relation to the practice and procedure that should be adopted in a busy list, such as the present, required entry of the precise words by the associate, as opposed to a separate document which is scanned onto the computer: "16 The computerisation of the Court records unfortunately means that it is no longer appropriate to enter judgment as "Orders 1-4 in Short Minutes initialled by Judge on 1/1/2011". The actual words of the orders must be entered. The computer system also means that it is no longer possible to have handwritten short minutes. 17 This means that, particularly in a heavy list such as occurs in the Commercial List, the party who is seeking entry of the orders should provide the Associate with both a hard copy and electronic copy of the Short Minutes. The former can be left on the file and scanned for any appeal book. The latter can be used by the Associate to enter the order electronically so that there is no confusion as to the exact terms of the order."
Neither of the parties before me referred to this decision, or to the observations of Basten JA in Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 concerning "disturbing aspects" of JusticeLink (at [6]) in relation to the entry of judgment. In Tarrant v Statewide Secured Investments Ltd, the orders in question were not entered on JusticeLink. As is the case here, the entry read: "orders in accordance with SMO" (at [10]).
Basten J, noting at [6] and [12] that this was not the first time such a problem had occurred with JusticeLink, considered that the court's obligation was to rectify the informality: "[13] As will be noted below, the present proceedings involve an application for leave to appeal from a judgment refusing to set aside the "judgment entered on 17 June 2009". The parties having acted on the basis that such judgment was entered and the judgment having been enforced at least to the extent of the issue of a writ of possession and the sale of the property, it is appropriate that this court rectify the informality attending the orders of 17 June 2009. That may be done by this court now ordering that the orders be taken to have been entered on 17 June 2009 and, pursuant to r 36.4(3), ordering that the direction be taken to have effect as at that date."
This was not done by consent; the opposing party (who failed to attend) had asked for an adjournment.
Although the issues in that appeal are somewhat different to the present case (and I am aware of the need to consider each case in context, as explained by Bathurst CJ, supra), Basten JA's approach to the situation of an order which had not been properly entered, in circumstances where the court and not the parties were to blame for this, is the proper approach for a court to take in relation to a bargain struck by the parties.
While Basten JA did not identify the other cases in which JusticeLink issues had arisen, his Honour may have been referring to the similar problem which arose in Nominal Defendant v Livaja [2011] NSWCA 121, where the trial judge, after correcting his calculations in relation to the judgment, failed to enter the judgment orders onto JusticeLink at all (at [19]). That meant that, technically speaking, there was no judgment to appeal from - a windfall for the respondent to the appeal if the order were not corrected. The Court hearing the appeal (at [23] - [24]) noted the need to avoid "expensive and time-consuming" applications and proceeded on the basis that the order had been correctly entered, rather than take the technical point.
What these cases demonstrate is that, where one of the parties gains a windfall as a result of the error of the court, there are strong reasons for restoring the balance between the parties by rectifying that error. Allowing technicalities to trump justice is contrary to the overriding principles of the Civil Procedure Act 2005 (NSW) (and, as an indication of the kind of unfairness that may follow, see the subsequent events in the litigation which followed the remission of proceedings, Futhem Pty Ltd v Mills [2012] NSWDC 127 at [28]-[44]).
Additionally, the failure to enter the order is an irregularity for which the parties are not responsible. If I have erred in holding that the order the subject of this application may be corrected by the court conformably with the reasoning in Mills v Futhem Pty Ltd at [42], then the order may alternatively be corrected under s 63. The correct approach is for the court to correct that irregularity rather than give a party wishing to escape from his or her bargain the opportunity to do so.
However, this is not a rule of general import. In Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342 at [14], Bathurst CJ stated: "There is no doubt that the court has express power to set aside unentered orders; the question is whether it should do so in the circumstances of the case."
The question is essentially one of context, as Bathurst CJ went on to note at [15]. Should I set aside the unentered order by reason of the parties' and the Court's fundamental misapprehension of a significant legal issue, which is the path Mr Stone SC urges upon me? This requires an examination of the basis upon which there is asserted to be a fundamental misapprehension of the law.

The statutory provisions asserted to be in conflict

Section 30(3) Civil Liability Act 2002 (NSW) provides: "(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim."
Sections 7K and 7L Motor Accidents Compensation Act 1999 (NSW) provide: "7K Claims where child at fault (1) This Division applies even if the death of or injury to the child was caused by the fault of the child, except as provided by this section. (2) A court is not to award damages pursuant to this Division in respect of the death of or injury to a child if the court is satisfied that: (a) the death of or injury to the child occurred at the time of, or following, conduct of the child that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death or injury or to the risk of death or injury. (3) A "serious offence" is an offence punishable by imprisonment for 6 months or more. (4) This section operates whether or not the child whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned. (5) There is to be no reduction of the damages provided for by this Division by reason of the contributory negligence of the deceased or injured person, except as provided by this section. 7L Special provision where child and driver at fault In a case in which this Division would confer a special entitlement to recover damages in respect of the death of or injury to a child but for the fact that the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle, a liability for damages of the kind to which that special entitlement relates (including any such liability of an insurer under section 83 or 84) is not to be reduced on account of the contributory negligence of the child (even though this Division does not confer that special entitlement in the case). Note: The special entitlement to damages conferred by this Division is only applicable where the owner/driver is not at fault. Where the owner/driver is at fault, this section prevents a reduction in special entitlement type damages that would otherwise result from the contributory negligence of the child."
Although the relevant legislation has been in place for almost a decade, the argument the plaintiff proposes to put forward - namely that by reason of the interaction of these provisions, the contributory negligence deduction cannot be made from the plaintiff's out of pocket expenses - has never been considered in any other proceedings before this or any other court. It is a novel point, the precise parameters of which were not put before me for consideration by either party.
However, that is not what the proposed revised order says; it refers to a number of heads of damages in the most general way.
Just as Mr Stone SC was not prepared to tell the court what was right about the submission of legislative error, Mr Roberts SC was not prepared to tell the court what was wrong with it. He conceded that, while a novel point, Mr Stone SC's argument was not so manifestly hopeless that the General Steel test (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125) applied, and said very little more.
This means that I have no submissions, as well as no decisions of other courts, as to whether the asserted statutory loophole is anything other than arguable. As noted elsewhere, this is insufficient to amount to a fundamental misapprehension of the law.
If the parties had been prepared to set out the issues of law necessary to establish this issue, I could have determined the argument as well as given approval under ss 75 - 77 Civil Procedure Act. In the absence of that argument from both parties, I am not prepared to take the view that an error of the court should permit a party to resile from an agreement, nor do I see any statement in any of the appellate authorities set out above which would endorse such a course.

The plaintiff's section 73 argument

The plaintiff alternatively submits that, if the order is held to have been validly entered (an argument which would also apply if I were to enter it properly, as part of this judgment), then the court has power to set it aside under s 73, noting observations in Dimarti v Dimarti [2015] NSWSC 97 by Lindsay J that the appropriate way to seek such orders is the method adopted by the plaintiff in these proceedings.
The basis of the application is asserted to be a "fundamental misapprehension as to the law" (written submissions at [54]). However, that is a difficult argument to mount where there is no case law at any level (let alone appellate level), and where the actual nature of the "fundamental misapprehension of the law" has not been put to me for determination as a separate issue of law in these proceedings pursuant to UCPR r 28.2 or even outlined beyond referring to the relevant sections which give rise to the asserted loophole.
What the plaintiff really asserts appears to be a change in the law. The relevant principles in this regard are summarised by Bathurst CJ in Independent Commission Against Corruption v Kinghorn at [28] - [30] as follows: "28. In a civil case involving proof of negligence, Piening v Wanless, Barwick CJ dealt with an appeal from an application for a retrial in circumstances where there had been a change in the law resulting from a judgment of the High Court. This Court had granted a retrial. On further appeal, Barwick CJ stated: "Of course, a litigant faced with a decision of a court which is not a final court of appeal which lies across the path he wants to follow, must make up his mind whether he desires to accept the burden and possible expense of challenging that decision. He may lack the courage or the means to do so, or both, or he may see advantage in accepting the current view. But the remedy for the erroneous decision is by way of such a challenge and not, as the majority of the Supreme Court seems to have thought, in the prolongation of litigation by affording a litigant a second opportunity after the error has been put right in other proceedings by other litigants." 29. A similar problem arises in the criminal law. It was addressed by the High Court in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan with respect to prosecution under a regulation which was later disallowed. The approach, based on merger of the liability in the conviction, was followed by the Court of Criminal Appeal in Reg v Unger in relation to an invalid regulation. In Unger, Street CJ noted: "There is no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well founded at the time of the trial, and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial. The trial having been concluded and the time for appeal having gone by, the general principle is that the matter is regarded as at an end." 30. A different approach has been adopted with respect to sentencing. Following the judgment of the High Court in Muldrock v The Queen there was a spate of applications for leave to appeal out of time by offenders who claimed to have been sentenced on the basis of an approach shown in Muldrock to be erroneous. In considering "change of law" cases, the High Court held in Kentwell v The Queen, with respect to sentences which were still being served, that the Court of Criminal Appeal had wrongly approached the matter on the basis that "the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence", the appellant being "entitled to be sentenced according to law.""
This is an argument best put to the trial judge, where the nature and extent of this asserted "fundamental misapprehension" can be investigated. Merely stating that there was a fundamental misapprehension, without explaining why, is not enough. Drawing my attention to an apparent inconsistency in legislation which is not the subject of any discussion or decision, without some degree of analysis, is insufficient to establish the basis for revisiting the agreement, for the reasons set out by Bathurst CJ above. By contrast, in the cases relied upon by Mr Stone SC (Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304; Wentworth v Rogers [2002] NSWSC 921 at [7]; Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 and New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 at [20]) the court had full argument put before it.
It is important to note that any orders made in these proceedings of this nature, if settled now, would require the approval of the Court pursuant to ss 75 - 77 Civil Procedure Act. In such cases, it is all the more important that the court exercise its supervisory jurisdiction. This is another reason why it is preferable for the argument to be stood over to the trial judge, so that these issues (which will require no additional evidence at the trial) can be dealt with in context, and with these interests at the forefront of the court's approach to the case.

The impact of ss 75 - 77 Civil Procedure Act

By the combined operation of ss 76(4) and 76(6) Civil Procedure Act 2005 (NSW) and r 36.4 UCPR, the Consent Judgment containing the agreement inter partes was approved by the court, and intended to take effect as and from 1 April 2016, which binds the infant plaintiff and the defendant.
It is not in dispute that s 76 Civil Procedure Act 2005 (NSW) is an enabling provision of a protective nature (Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 at [30]) and that while the court may rely on the evidence put before it by the parties, ultimately the court exercises its own independent judgment (Permanent Trustee Company Limited v Mills [2007] NSWSC 336). While the agreement of the tutor and opinions from legal advisers as to the appropriateness of the settlement may be persuasive, the court should consider for itself whether the compromise would be beneficial to the person under a disability.
If the approved agreement which binds the parties has not been entered by the court due to the court's error, what is the combined effect of ss 63 and 133 Civil Procedure Act 2005 (NSW) and UCPR r 36.15, having regard to the statements of principle set out in Mills v Futhem Pty Ltd [2011] NSWCA 252?
Whether the 1 April 2016 orders are perfected by entry of those orders in proper form or not, I could not, in the context of these proceedings, approve the plaintiff withdrawing from this agreement as to contributory negligence findings of 30% in relation to "all heads of damage" (a term of obscurity which seems to me to be capable of applying to any claim for contributory negligence at all). The parties have elected not to inform me of the basis of their arguments or even of the quantum involved. I also take into account that this claim relates to a technical argument based upon an asserted legislative loophole, and not to an actual source of compensation the loss of which would cause the plaintiff hardship. I also note that there is no affidavit from the tutor advising that she knows the risk of costs if the argument fails, or that she agrees to the course taken.
Pursuant to the relevant provisions for approval of settlements set out in each of ss 75 - 77 Civil Procedure Act 2005 (NSW), I would refuse to set aside the orders I consider should be made in these proceedings, namely the entry of the order which was not properly entered, without hearing argument on the merits of the claim, on the basis that these would then be a matter for the trial judge, who would have the benefit of hearing the arguments, understanding the costs involved and determining whether that argument should also apply to the plaintiff's brother's proceedings (which, it should be noted, are subject to the same orders).
Mr Stone SC noted that, while these proceedings had been brought before me for the purpose of this application (no doubt to avoid the consequences of s 63 Civil Procedure Act and the "fresh step" rule), the asserted statutory inconsistency could still be referred to at the hearing, and he in fact provided a separate s 73 argument as to why the agreement should be set aside if the order had been validly entered. While the defendant did not agree that this was the case, I was not told why.
These are further reasons why I should exercise caution, leave the parties with the bargain they have made and leave these issues to the trial judge including, if the trial judge is so inclined, the question of entitlement for the plaintiff's brother.

Conclusions and orders

After each Friday's 9 am Infants Settlement List, my associate regularly enters around two dozen orders before moving on to the 10 am hearing matters. In an ideal world, the practice and procedure as recommended by Young JA in Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) would have been followed by practitioners in a busy list such as the Infant Approval List to assist him with this task in the manner advocated by his Honour. That did not happen here, nor does it happen as a general rule. If the consequences of this failure are errors in the parties' orders, that should not entitle the party with the windfall benefit to profit from it.
For the reasons explained by Basten JA in Tarrant v Statewide Secured Investments Ltd at [6] and by Allsop P in Mills v Futhem Pty Ltd at [42], the court's approach to an order which has not been entered properly should be to correct the error. That is what I propose to do.
As I noted at the commencement of this judgment, Mr Justice P W Young AO explains, in his extra-curial observations at (2011) ALJ 615 at 618, that the reason for practitioners not assisting the court as they should is the cost. That is an approach which is in conflict with the overriding obligations of ss 56 - 62 Civil Procedure Act 2005 (NSW). The consequences for parties and for courts are that a computer system designed to increase efficiency and reduce costs is having the reverse effect. Appropriate rules should be introduced to ensure consistent procedures for the entry of orders are made, in order to discourage parties seeking to avoid their responsibilities in assisting the court as well as in complying with the overriding principles of s 56. However, that is an issue which falls outside the parameters of this judgment.
I propose to enter the orders set out in the Short Minutes of Order of 1 April 2016 in the proper way, and to stand over the plaintiff's Notice of Motion to the trial judge, with costs reserved to the trial judge.
As discussed during the hearing, I had considered providing a copy of this judgment to the Attorney-General, so that any apparent conflict between s 30(3) Civil Liability Act 2002 (NSW) and ss 7K and 7L Motor Accidents Compensation Act 1999 (NSW) can be considered. However, I have so little information about the basis of the asserted conflict that I doubt this judgment would be of any benefit.
My orders are as follows: 1. Pursuant to ss 63 and 75 - 77 Civil Procedure Act 2005 (NSW), I enter order (1) (as revised) in accordance with the Consent Judgment dated 1 April 2016 (see order (2) below). 2. Pursuant to s 76 Civil Procedure Act 2005 (NSW), and in accordance with s 30 Civil Liability Act 2002 (NSW), the judgment sum in these proceedings is to be reduced by 30% by reason of the contributory negligence of Tyler Leach. 3. The plaintiff's Notice of Motion filed on 21 July 2017 is stood over to the trial judge. 4. Reserve the issue of costs to the trial judge. 5. Liberty to apply in relation to costs. 6. Confirm the hearing date of Monday 6 November 2017.

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: 15 September 2017

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (18)