Xirakis v Xirakis [2025] ACTSC 376

Relevant principles

6. Rule 282 of the Court Procedures Rules 2006 (ACT) provides: 282 Person with legal disability—approval of settlement etc (1) In a proceeding (or proposed proceeding) in which there is a claim for an amount (including an amount of damages) by or on behalf of a person with a legal disability, a settlement or compromise may only be entered into, and an amount paid into court may only be accepted, with the court’s approval. (2) The application for the court’s approval must be made by originating application, unless the application is made in a proceeding that has already been started. Note 1 Div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc. Note 2 Pt 6.2 (Applications in proceedings) applies to an application for the court’s approval in a proceeding that has already been started. (3) If the court approves a settlement, compromise or acceptance of an amount paid into court, the court may enter judgment for the amount of the settlement, compromise or payment into court. (4) This rule applies whether the person is suing alone or with another party.

7. In Ryan v Larkham [2022] ACTSC 151, McCallum CJ observed at [4] (citing Veal (by his next friend Watson) v Hehir [2018] ACTSC 330): … the overriding principle in exercising the discretion whether to approve a settlement is for the Court to consider whether the proposed compromise is or is not beneficial to the interests of the person under the incapacity and that that decision is uniquely one for the Court and not the parties.

8. As distinct from the court, the role of legal advisors representing the plaintiff on an application for approval was described by Blackburn CJ in Elliott v Diener (1978) 21 ACTR 21 at 22: The solicitor says in his affidavit that he has considered what would be for the benefit of the infant; but that is not enough. The test of benefit to the infant is not whether the sum is adequate and reasonable. The matter is not to be [decided] by the plaintiff's own solicitor as if he were a judge awarding damages after a contested hearing. The question which counsel or solicitor for the plaintiff has to decide, when considering a compromise of an infant's claim, is whether the prospect of getting a greater sum by rejecting the present offer is good enough to outweigh, significantly, the risk of not getting any more. There may be various factors in such a decision, sometimes present and sometimes not; for example, the importance of termination of proceedings may be great for some plaintiffs and insignificant for others. The question of costs, also, will usually be significant. The decision is peculiarly one for experienced counsel and solicitors.

9. The role for the legal advisors is thus one requiring the identification and weighing of factors underpinning the best interest considerations. Those factors will be different in each case and will often go beyond a simple analysis of the pleaded issues of contention.

Documentation

10. I have the benefit of a confidential advice prepared by Ms Amelia Avery-Williams, counsel for the plaintiff, in respect of the suitability of the settlement. Having read the advice closely, I am satisfied that the proposed settlement is one that is in the best interests of the plaintiff, and it is therefore in the interests of justice that the settlement be approved.

Orders

11. For the reasons given above, I made the following orders: (1) Pursuant to r 282 of the Court Procedures Rules 2006 (ACT), the Court approves the settlement agreed between the parties, set out in the Deed of Release (the Deed), a copy of which is Exhibit ML16 to the affidavit of Mabel Mei Shi Lim sworn on 7 August 2025. (2) The settlement sum of [redacted] is to be paid into the trust account of Colquhoun Murphy in accordance with the terms of the Deed. (3) Interest is not to run on the settlement sum if paid within 28 days of receipt by the defendants of a sealed copy of these orders. (4) The affidavit of Mabel Mei Shi Lim dated 7 August 2025, together with its exhibits, is to be placed in an envelope, sealed and the envelope marked “not to be accessed without an order of a Judge”. (5) The address of Ms Amelia Avery-Williams of counsel dated 7 August 2025 is to be marked “Exhibit 1”, placed in an envelope, sealed and the envelope marked “not to be accessed without an order of a Judge”. (6) There is no order as to costs.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: