Serina Robertson bhnf Nugget Robertson v David Whitefield [1988] NTSC 25; 90 FLR 311 (12 April 1988)
[2]
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Asche C.J.(1)
CWDS
Damages - Personal injuries - Approval of compromise
Counsels opinion
still normally required - Supreme Court Rules (NT) R 15.08
Case applied:
Page v Rogers (1977) 16 ALR 40
HRNG
DARWIN
#DATE 12:4:1988
Counsel for the Plaintiff: J.C.A. Tippett
Solicitors for the Plaintiff: Mildrens
Counsel for the Defendant:
J. Reeves
Solicitors for the Defendant: Poveys Alice Springs
instructing Poveys Darwin
JUDGE1
This being I think the first application for approval of a compromise under
the new rule 15.08, and Mr Tippett having drawn my attention
to certain
matters, it may be appropriate if I briefly outline the view I have taken.
This was a case where the plaintiff was
an infant and suing by her next
friend for damages for personal injuries, limited to pain and suffering and
loss of amenities of
life.
Mr Tippett had opened the matter to me and had outlined some part of the
medical evidence, but the matter had proceeded
no further when it was
adjourned until today, and during the adjournment the parties reached
agreement as to the amount of damages
to be paid, subject to the court's
approval pursuant to rule 15.08.
Mr Tippett sought permission to outline the case to me and
to give his
opinion from the bar table, and thereby seek that the compromise be approved
this day.
While I appreciate that there
is something to be said for expedition in
these matters, it seems to me that the principle that counsel's opinion should
be part
of the material before a court in compromise of a claim such as this,
is a vital and important one.
The infant plaintiff is entitled
to the careful consideration of the court
and is entitled to a careful assessment by the court, assisted by counsel's
opinion, that
the compromise is in her best interests.
Although I am quite prepared to accept that there can be circumstances in
which a court
may approve a compromise from the bar table, as it were, it
seems to me that those circumstances are usually where the matter has
progressed for some time and the court has had before it a full picture of the
evidence to be adduced, and has heard at least some
of the medical witnesses.
The principle is sufficiently started by Toohey J. in Page v Rogers (1977)
16 ALR 40, at page 41:
" In my view the court should
ordinarily require the opinion of counsel before
granting such approval. Generally
it is not sufficient
for the court to be given an outline of the relevant
considerations by counsel, either in open court or
in
chambers. It may be that the hearing of an action has
gone so far that the court may be able to form its own
opinion,
whether the proposed compromise is for the
benefit of the infant children, but such a case must be
unusual. The fact that
the court has heard in its
entirety the plaintiff's own evidence does not
necessarily put it in a position where it can make
an
informed decision. There may well be important
considerations that depend upon evidence other than that
of the plaintiff
herself."
Bearing in mind the importance of the matter for the infant plaintiff, the
importance as a matter of public policy,
that a court approving the compromise
should have before it proper material, particularly the opinion of counsel, it
seems to me
that under these rules, as under the older rules, the normal
procedure would be that there be an opinion of counsel; and I note that
that
seems to be considered appropriate by form 15A which is referred to in rule
15.08(6). Paragraph 3B of form 15A refers to the
opinion of counsel.
I will therefore adjourn the matter for that opinion.