Bryden (By His Litigation Guardian Sarah Bryden) v INA Operations Pty Ltd Trust No 4 (t/a Igenia Holidays Riverhouse)
[2024] QMC 23
•09/12/24
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Bryden (By His Litigation Guardian Sarah Bryden) v INA Operations Pty Ltd Trust No 4 (t/a Igenia Holidays Riverhouse) [2024] QMC 23
LIAM BRYDEN (BY HIS LITIGATION GUARDIAN SARAH BRYDEN)
PARTIES:
(Applicant)
v
INA OPERATIONS PTY LTD TRUST NO 4 (T/A IGENIA HOLIDAYS RIVERHOUSE)
(Respondent)
FILE NO/S:
M 7980/24
DIVISION:
Magistrates Court
PROCEEDING:
Application for Sanction
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
09/12/24
DELIVERED AT:
Brisbane Magistrates Court
HEARING DATE:
04/11/2024
MAGISTRATE:
Pinder
ORDER:
1) THE LITIGATION GUARDIAN WILL FILE IN THE REGISTRY THE WRITTEN CONSENT TO BE LITIGATION GUARDIAN FOR LIAM PATRICK BRYDEN PURSUANT TO R 95(1) (UCPR) WITHIN (3) DAYS OF THIS ORDER.
2) THE COMPROMISE OF THIS PROCEEDING ON THE FOLLOWING TERMS BE SANCTIONED PURSUANT TO S 59(1) OF THE PUBLIC TRUSTEE ACT 1978, THE RESPONDENT PAY THE APPLICANT DAMAGES IN THE TOTAL SUM OF $120,000 INCLUDING DAMAGES FOR MANAGEMENT FEES AND FOR ALL LEGAL COSTS (“THE COMPROMISE SUM”).
3) THE PUBLIC TRUSTEE OF QUEENSLAND (“THE TRUSTEE”) BE APPOINTED TO RECEIVE, HOLD AND MANAGE THE BALANCE OF THE COMPROMISE SUM AFTER DEDUCTION OF THE AMOUNTS IDENTIFIED IN SUB PARAGRAPHS (A) AND (B) OF PARAGRAPH 7 OF THIS ORDER ON TRUST FOR THE APPLICANT UNTIL HE ATTAINS 18 YEARS.
4) THE TRUSTEE BE EMPOWERED TO INVEST THE BALANCE OF THE COMPROMISE SUM AND ANY ACCRETIONS IN SUCH INVESTMENTS AS TRUSTEES ARE EMPOWERED TO INVEST IN UNDER THE TRUST ACT 1973.
5) THE TRUSTEE APPLY SUCH MONEYS FOR THE MAINTENANCE, BENEFIT AND SUPPORT OF THE PLAINTIFF.
6) WITHIN SEVEN (7) DAYS OF THIS ORDER, THE APPLICANT’S SOLICITORS SERVE A COPY OF IT ON THE TRUSTEE.
7) WITHIN TWENTY-ONE (21) DAYS OF THIS ORDER OR OF THE RESPONDENT’S RECEIPT OF THE LAST OF ANY STATUTORY CLEARANCES OR CHANGES IN RELATION TO THE COMPROMISE SUM (WHICHEVER IS THE LATER TO OCCUR), THE RESPONDENT PAY THE COMPROMISE SUM AS FOLLOWS –
(A) TO MEDICARE, BEING A STATUTORY BODY HAVING A CHARGE OVER THE COMPROMISE SUM $3,099.10;
(B) TO BUPA, BEING THAT PRIVATE HEALTH INSURER’S CHARGE, $5,837.45;
(C) TO THE TRUSTEE, THE BALANCE,
WHOSE RECEIPT SHALL IN EACH CASE BE A SUFFICIENT DISCHARGE FOR THE FIRST DEFENDANT.
8) INTEREST UNDER S 59(2) OF THE CIVIL PROCEEDINGS ACT 2011 SHALL NOT BE PAYABLE BY THE RESPONDENT ON ANY PART OF THE COMPROMISE SUM PROVIDED THAT PAYMENT IS MADE PRIOR TO THE EXPIRATION OF THE TIME PERIOD ALLOWED FOR PAYMENT SPECIFIED IN PARAGRAPH 7 OF THIS ORDER, AND THEN SHALL ONLY ACCRUE AND BE CALCULATED FROM THE DAY FOLLOWING SUCH EXPIRY.
9) THE APPLICANT’S COSTS INCLUDING OF HIS CLAIM AND INCLUDING THE COSTS OF THIS APPLICATION BE ASSESSED OR AGREED ON THE INDEMNITY BASIS (“THE INDEMNITY COSTS”).
10) FOLLOWING THE ASSESSMENT OF THE INDEMNITY COSTS OR AGREEMENT AS TO THEIR AMOUNT, THE TRUSTEE IS TO:
(A) PAY THE INDEMNITY COSTS OF THE APPLICANT’S SOLICITORS FROM THE MONEYS RECEIVED UNDER SUB-PARAGRAPH (C) OF PARAGRAPH 7 OF THIS ORDER OR;
UNLESS THE TRUSTEE IN RELATION TO ASSESSED INDEMNITY COSTS DECIDES TO:
(B) PAY SUCH LESSER SUM AS IT MAY AGREE WITH THE APPLICANT’S SOLICITORS; OR
(C) APPLY TO THE COURT FOR FURTHER DIRECTIONS.
11) THE REGISTRAR OF THE COURT PLACE THE OPINION OF COUNSEL AND THE APPLICANT’S SOLICITOR’S AFFIDAVIT DEALING WITH THE ESTIMATES OF COSTS READ ON THIS APPLICATION (BEING THE AFFIDAVIT OF HAROLD MARTIN DIGNAN FILED 23/10/24) IN A SEALED ENVELOPE MARKED “NOT TO BE OPENED WITHOUT AN ORDER OF THE COURT”.
12) THE ENVELOPE CONTAINING THE OPINION OF COUNSEL AND THE APPLICANT’S SOLICITORS AFFIDAVIT DEALING WITH THE ESTIMATES OF COSTS READ ON THIS APPLICATION SHALL NOT BE OPENED WITHOUT AN ORDER OF THE COURT.
13) THE APPLICANT, AT THE TIME OF SERVING A COPY OF THESE ORDERS UPON THE PUBLIC TRUSTEE, SHALL ALSO DELIVER TO THE PUBLIC TRUSTEE A COPY OF THE REASONS FOR DECISION FOR SANCTION.
14) EACH OF THE PARTIES, THE TRUSTEE AND THE APPLICANT’S SOLICITORS HAVE LIBERTY TO APPLY IN RESPECT OF THESE ORDERS.
CATCHWORDS:
Sanction of Compromise – s 59 Public Trustee Act 1978 (Qld) – r 94 UCPR – Litigation Guardian – r 93 UCPR – Fowler v Gray (1992) QDR 334
COUNSEL:
Mr A Stobie (I/b Turner Freeman Lawyers) – Applicant
SOLICITORS:
Ms N. Henkey (Barry Nilsson Lawyers) – Respondent
INTRODUCTION
Liam Patrick Bryden (the claimant) is a child who was injured in an accident that occurred whilst using a water slide at the Ingenia Holidays Riverside Resort on the 21 September 2019. The claimant is a child (being born on 26 April 2009) and was aged 10 at the time of the accident and is now aged 15.
Following the incident the claimant’s mother Ms Sarah Bryden instructed solicitors to pursue a claim for damages for negligence for personal injuries arising out of the accident.
As a child the claimant is a person under a legal disability (having not obtained his majority) and in respect of any proposed claims for damages for personal injuries, any court proceedings must be commenced and continued by a litigation guardian.[1]
[1]r. 93 UCPR.
The claimant’s mother Ms Sarah Bryden is for the purpose of the application before the court his litigation guardian.
APPLICANTION TO SANCTION
The litigation guardian has, on behalf of the claimant, instructed the claimant’s solicitors to settle the claim for damages for personal injuries in the sum of $120,000 inclusive of damages for management fees and all legal costs.
The respondent to the claim is INA Operations Pty Ltd Trust No 4 T/A Ingenia Holidays Rivershore (INA) the occupier of the resort where the claimant was injured. INA is represented in relation to the claim and this application by lawyers acting on behalf of their public liability insurer exercising its rights of subrogation under the policy of insurance. They indicated they would abide the order of The Court.
The litigation guardian (by Origination Application filed 17 September 2024) sought orders -
· That the compromise of the claim for damages be sanctioned.
· For consequential orders in respect of the management of the compromised sum, distribution of that compromised sum and payment of legal costs.
The applicant relies on the following material –
1. Application filed 17 September 2024;
2. Affidavit of Harold Martin Dignan filed 17 September 2024;
3. Affidavit of Harold Martin Dignan filed 23 October 2024;
4. Affidavit of Sarah Bryden filed 25 October 2025;
5. Affidavit of Kylie Gail Restchlag filed 30 October 2024.
The applicant, has also provided and tendered an Advice on Liability and Quantum (incorrectly identified in the submissions on behalf of the claimant as simply “counsels advices on quantum”) from Mr Stobie counsel dated 31 October 2024.
The Magistrates Court currently does not have a practice direction in relation to applications for sanction for persons under a legal disability. The applicant has correctly identified and followed the appropriate practice direction in the Supreme Court – Practice Direction 15 of 2018.
In compliance with Supreme Court PD 15/2018 (and the proforma order annexed to it), the orders proposed by the applicant, include requiring the opinion of counsel and the applicants solicitors affidavit dealing with estimates of costs, to be placed in a sealed envelope – not opened other than by order of the court.
The litigation guardians capacity to commence proceedings by way of originating application and seek orders for the sanction of the compromise, is found in chapter 3 part 4 of the Uniform Civil Procedure Rules (UCPR).
The claimant is “a person under a legal incapacity” and therefore, may only start proceedings by a litigation guardian.[2]
1 r 93. UCPR.
The claimants mothers Mrs Sarah Bryden is a person who may be a litigation guardian.[3]
[3]r 94 UCPR.
A review of the registry file (and the material to be read, identified in the plaintiffs outline, and the affidavit of Sarah Bryden filed 25 October 2024) confirm that no written consent to the litigation guardian has been filed.[4]
[4]r 95 UCPR.
This apparent oversight by the applicant was not identified in any of material or oral submissions.
I proceed on the basis that this irregularity is overcome by including a requirement in the draft order in the following terms –
1. The litigation guardian will file in the registry the written consent to be the litigation guardian for Liam Patrick Bryden pursuant to rule 95 (1) within 3 days of this order.
SANCTION OF COMPROMISE OF CLAIM:
The claimant, being a person under a legal disability, cannot have any compromise of a claim that it effectual and binding without a sanction of that compromise by a court or the Public Trustee.
Section 59 of the Public Trustee Act 1978 provides for the compromise of action by or on behalf of persons under a legal disability claiming money or damages.
Section 59 (1A) relevantly identifies –
· The claimant as child, being a person under a legal disability.
· This court being a court (within whose jurisdiction the amount or damages are claimed is competent).
The claimant here has not commenced proceedings claiming damages, bur rather resolved the claim within the pre-proceedings regime proscribed by the Personal Injuries Proceedings Act 2002 (PIPA).
This claim for damages may be compromised “out of court” with sanction of this court.[5]
[5]S. 59 (2) Public Trustee Act 1978 (PTA).
Upon sanction of the compromise by a court, the compromise becomes binding upon the person under a legal disability.[6]
[6]S. 59 (3) Public Trustee Act 1978 (PTA).
Section 59 also provides for the power to make procedural orders in relation to the distribution of settlement moneys, management of those funds and costs. [7]
[7]See s. 59 (4) to (8) Public Trustee Act 1978 (PTA).
The Chapter 3 part 4 of the UCPR also provides requirements in relation to settlement or compromise of a proceeding for a person under a legal disability.
Rule 98 provides –
· A compromise is ineffective unless it is approved by a court.[8]
· The material a litigation guardian for a party must produce, to enable the court to consider whether a compromise should be approved.[9]
[8]r 98 (1) UCPR.
[9]r 98 (2) UCPR
PRINCIPLES APPLICABLE TO SANCTIONS
The function of a court is to ensure that, in all of the circumstances of the particular case presented, the settlement is reasonable and for the benefit of a person under a legal disability.[10]
[10]Fowler v Gray [1982] QDR 334.
As the court observed in Fowler v Gray[11]
“However the application is made, the court has a special reasonability for the welfare of persons under a legal disability. They lack full legal capacity, they are incapable of waiving their rights and they cannot give a discharge to the defendant under the agreement unless it is sanctioned by the court” and further –
“This shows that care should be taken when an sanction is sought and particularly so if it is not approved”.[12]
[11]Fowler v Gray [1982] QDR 334.
[12]Fowler v Gray [1982] QDR at 349.
A court should not publicly state in detail its reasons for refusing to sanction a settlement as that may result in prejudice to one or both parties.[13]
[13]Fowler v Gray [1982] QDR at 349.
Upon a application for sanction of a compromise the court must independently consider and assess all of the circumstances of the particular case presented and be persuaded that the settlement is reasonable and for the benefit of the person under the legal disability.
In the present case that requires an independent assessment and consideration both of –
· The claimants prospects of succeeding in a claim for damages.
· An assessment of the quantum of damages for personal injuries that are recoverable.
CONSIDERATION OF PROPOSED COMPROMISE
The extensive affidavit material relied upon by the applicant, together with a copy of counsels advice liability and quantum, enables the court to independently assess –
· The circumstances of the accident in which the claimant was injured.
· The claimants prospects of establishing negligence as against the occupier.
· The nature of the injuries suffered by the claimant.
· The consequential loss and damage resulting to the claimant from those injuries.
The procedural aspects of the claim are prescribed by PIPA.
The claimants entitlement to recover damages is regulated and informed by the Civil Liability Act (2003) (CLA). The CLA prescribes a statutory regime for assessment of damages including general damages by reference to an injury scale value (ISV), and in respect of other heads of damages including loss of earning capacity, special damages and future expenses. The claimants solicitors have obtained medico-legal reports from the appropriate medical specialists which opine and ascribe impairment and disability resulting from the injuries.
That material informs the courts own independent assessment of the claim and persuades me, in all the circumstances of this particular case, that the counsels advice on prospects and quantum of damages correctly supports and recommends the settlement of the claim.
THE SETTLEMENT – INCLUSIVE OF MANAGEMENT FEES AND COSTS
The proposed settlement is in the sum of $120,000 – including damages, fees for management of a claim for the public trustee and all legal costs.
The applicants material identifies and quantifies the Public Trustees management fees in respect of the funds which will be held only until the claimant attains his majority at 18 on the 21 April 2027.[14]
[14]Affidavit K.G Retschlag filed - 30/11/24.
Those management fees will be payable to the Public Trustee from the settlement sum.
The claimants costs, recoverable from the respondent, are similarly regulated by the provisions of PIPA. The applicants solicitor deposes to estimates in respect of professional costs and counsel fees, other outlays and details of statutory refunds to be deducted from the settlement sum.[15]
[15] Affidavit H.M Dignan filed – 23/11/24.
A consideration of that evidence and quantification of the statutory refunds and costs and outlays, together with the quantification of the public trustee management fees enable an assessment of the nett amount payable to the claimant (at the time of obtaining his majority) to be ascertained.
The second step in the function the court exercises in determining whether the settlement is reasonable and for the benefit of the claimant, is to conclude, in circumstances such as this where an all inclusive settlement sum is proposed, that the ultimate outcome is reasonable and for the benefit of the claimant. That the sum the claimant will ultimately receive after necessary deductions satisfies the court that the settlement is reasonable and for his benefit.
The estimates of the claimants solicitors professional costs are at first brush concerning. This was always a modest claim for damages for a child and was resolved pre-proceedings following a settlement conference. The lawyers acting for a claimant in those circumstances, in my view, carry a substantial professional obligation to ensure that the claim is advanced to a resolution both efficiently and importantly, cost effectively, to the benefit of the claimant.
The Legal Professional Act (2007) regulates costs that a law practice may charge in respect of speculative personal injury claims.[16]
[16] S 347 Legal Professional Act 2007.
The proposed orders empower the Public Trustee to assess, negotiate and pay legal costs on behalf of the claimant.
Whilst expressing some reservation as to the estimated professional costs payable by the claimant, I proceed comforted by the requirement of the Public Trustee to ensure that any legal costs are properly assessed and negotiated on behalf of the claimant.
I am therefore satisfised that the proposed compromise of the claim is reasonable and for the benefit of the claimant. I therefore make orders in terms of the draft orders submitted by the applicant with the following amendments –
The order of the Court is that -
(1) The litigation guardian will file in the registry the written consent to be Litigation Guardian for Liam Patrick Bryden pursuant to r 95(1) (UCPR) within (3) days of this order.
(2) The compromise of this proceeding on the following terms be sanctioned pursuant to s 59(1) of the Public Trustee Act 1978, the respondent pay the applicant damages in the total sum of $120,000 including damages for management fees and for all legal costs (“the compromise sum”).
(3) The Public Trustee of Queensland (“the trustee”) be appointed to receive, hold and manage the balance of the compromise sum after deduction of the amounts identified in sub-paragraphs (a) and (b) of paragraph 7 of this order on trust for the applicant until he attains 18 years.
(4) The trustee be empowered to invest the balance of the compromise sum and any accretions in such investments as trustees are empowered to invest in under the Trusts Act 1973.
(5) The trustee apply such moneys for the maintenance, benefit and support of the plaintiff.
(6) Within seven (7) days of this order, the applicant’s solicitors serve a copy of it on the trustee.
(7) Within twenty-one (21) days of this order or of the respondent’s receipt of the last of any statutory clearances or charges in relation to the compromise sum (whichever is the later to occur), the respondent pay the compromise sum as follows –
(a) to Medicare, being a statutory body having a change over the compromise sum $3,099,10;
(b) to BUPA, being that Private Health insurer’s charge, $5,837.5;
(c) to the trustee, the balance,
whose receipt shall in each case be a sufficient discharge for the first Respondent.
(8) Interest under s 59(2) of the Civil Proceedings Act 2011 shall not be payable by the Respondent on any part of the compromise sum provided that payment is made prior to the expiration of the time period allowed for payment specified in paragraph 7 of this order, and then shall only accrue and be calculated from the day following such expiry.
(9) The applicant’s costs including of his claim and including the costs of this application be assessed or agreed on the indemnity basis (“the indemnity costs”).
(10) Following the assessment of the indemnity costs or agreement as to their amount, the trustee is to:
(a) pay the indemnity to the Applicant solicitors from the moneys received under sub-paragraph (c) of paragraph 7 of this order; or
unless the trustee in relation to assessed indemnity costs decides to:
(b) pay such lesser as it may agree with the applicant’s solicitor’s or
(c) apply to the court for further directions.
(11) The Registrar of the Court place the opinion of counsel and the applicant’s solicitor’s affidavit dealing with the estimates of costs read on this application (being the affidavit of Harold Martin Dignan filed 23/10/24) in a sealed envelope marked “Not to be opened without an order of the Court”.
(12) The envelope containing the opinion of counsel and the applicant’s solicitors affidavit dealing with the estimates of costs read on this applications shall not be opened without an order of the Court.
(13) The Applicant, at the time of serving a copy of these orders upon the Public Trustee, shall also deliver to The Public Trustee a copy of the reasons for decision for sanction.
(14) Each of the parties, the trustee and the applicant’s solicitors have liberty to apply in respect of these order.
I direct the applicants solicitors to amend the proposed draft orders as noted above and submit those to the registry for endorsement.
Magistrate JNL Pinder
09/12/2024
2 R. 93(1).
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