CDJR2 v State of New South Wales

[2023] NSWSC 120

Supreme Court

New South Wales

Medium Neutral Citation:

CDJR2 v State of New South Wales [2023] NSWSC 120

Hearing dates:

17 February 2023

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)    I note that this matter has settled subject to approval in accordance with the terms of a consent judgment signed by the legal representatives of the parties.

(2)    I note that a deed of release was signed between the parties, which deed attached those consent orders.

(3) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

(4)    I make orders in accordance with paragraphs 1 to 10 inclusive of that consent judgment which, for identification, I will initial, date with today's date and place with the papers.

(5) The defendant is to pay the sum of $250,000 to the plaintiff plus legal costs of $95,000 to Karp O'Neill Lawyers as per the terms of the deed and pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW).

Catchwords:

CIVIL PROCEDURE – approval of settlement – institutional abuse – tutor – the tutor may have been appointed for more abundant caution – plaintiff capable of managing his own affairs – court approval

Legislation Cited:

Civil Procedure Act2005 (NSW), s 77(3), s 76(4)

Cases Cited:

Walker v The Public Trustee [2001] NSWSC 1133

Category:

Principal judgment

Parties:

CDJR2 (Plaintiff)
State of New South Wales (Defendant)

Representation:

Solicitors:
Karp O’Neill Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2022/266085

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: The plaintiff in this matter, as a child, was committed to various institutions. In his statement of claim, he alleges that between 24 November 1966 and 13 June 1974, he was subjected to sexual, physical and psychological abuse whilst housed in those institutions. The defendant in these proceedings was responsible for child welfare and the operation of the various institutions where the harm was said to have occurred. The plaintiff has thus brought a claim against the defendant with respect to that harm.

2. Based on various medical reports obtained in the course of these proceedings, a tutor was appointed on behalf of the plaintiff. There is, I might note, some doubt in my mind as to whether it was necessary that a tutor be appointed. Insofar as I had any concern in this regard, I have satisfied myself through evidence given orally today and also in the form of affidavit, that the plaintiff himself is desirous of the settlement, approval of which is sought by notice of motion filed in court this morning.

3. In those circumstances, it seems that whilst the tutor may have been appointed for more abundant caution, it would be inappropriate to stand in the way of settlement in circumstances where, if the plaintiff is able to give instructions directly, those instructions in effect have been given.

4. As I have indicated, the matter is before the Court for the approval of settlement based on agreement between the parties. I have been provided with a detailed and helpful advice from Mr Karp, the plaintiff's lawyer, prepared for the purposes of mediation between the parties. The advice sets out the potential issues in the litigation and provides advice as to what would, in the circumstances, be an appropriate settlement.

5. I have also been provided with an affidavit from the plaintiff's tutor of 6 February 2023, and additionally heard oral evidence from her today. She explains that while her father is very self-sufficient, she was advised by her father's lawyers that he may have a mild neurocognitive disorder and may require a tutor. She states that she was willing to be his tutor after the roles and responsibilities of a tutor were explained to her both verbally and in writing by her father's lawyers.

6. The tutor has explained that she attended the mediation with the plaintiff on 16 December 2023 where the plaintiff was represented by Mr Christopher Simpson of counsel and Karp O'Neill Lawyers.

7. The tutor has indicated that she considered it to be in the best interests of the plaintiff to accept advice to settle the matter on terms reached in the course of and subsequent to the mediation, and set out in a deed of settlement. That settlement would provide the plaintiff with an amount of $250,000 clear of legal costs, less moneys repayable to Medicare or Centrelink, which is understood to be likely less than $1,000.

8. It has been explained that the tutor was content with that amount because the plaintiff had been wanting to buy a property in rural New South Wales in an area where he has lived for some time. The tutor has indicated an awareness with property costs in that particular area, and is aware that with a combination of the settlement amount and savings, the plaintiff will be in a position to buy a suitable property.

9. The tutor has indicated that not only does she consider it to be in the best interests of the plaintiff but that the plaintiff himself is strongly in favour of the settlement to enable him to move forward with his plans.

10. It is proposed that the moneys be paid to the plaintiff pursuant to s 77(3) of the Civil Procedure Act2005 (NSW), despite the fact that a tutor has been appointed to act for the plaintiff. As I have indicated, in the particular circumstances of this case, it appears that a tutor was appointed for more abundant caution, however, the result of a tutor being appointed is that the settlement requires the approval of the Court.

11. As I have indicated, I am satisfied as a result of evidence and the assurance given to me this morning by the plaintiff's representative that the plaintiff, if he were to give instructions, would instruct that the settlement should proceed. Additionally, the evidence of the tutor indicates that the plaintiff over his life has been prudent with money, and despite somewhat straitened financial circumstances, has managed to save in excess of $100,000.

12. She has explained that he has managed his financial affairs involving the purchase, repair and sale of motor vehicles. While she assists him with banking and matters such as shopping, this appears to be more in the nature of assistance provided on the basis that it's more convenient rather than any incapacity.

13. She has been clear that in her view, the plaintiff does not require assistance in managing his finances. That does not appear to be in any way inconsistent with the medical evidence before me. Ultimately, the amount that the plaintiff has managed to save, a matter evidenced by copies of his bankbook annexed to the tutor's affidavit, and the plaintiff's desire to combine that amount with the settlement figure to buy a property, provide strong support for the tutor's view. I am satisfied that the plaintiff is now capable of managing his own affairs. See Walker v The Public Trustee [2001] NSWSC 1133 at [7].

14. I am satisfied in the circumstances that the proposed settlement is in the best interests of the plaintiff, and I propose to approve it.

15. Accordingly, I make the following orders:

1. I note that this matter has settled subject to approval in accordance with the terms of a consent judgment signed by the legal representatives of the parties.

2. I note that a deed of release was signed between the parties, which deed attached those consent orders.

3. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

4. I make orders in accordance with paragraphs 1 to 10 inclusive of that consent judgment which, for identification, I will initial, date with today's date and place with the papers.

5. The defendant is to pay the sum of $250,000 to the plaintiff plus legal costs of $95,000 to Karp O'Neill Lawyers as per the terms of the deed and pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW).

**********

Decision last updated: 21 February 2023