Despotoski v Northern Health (Ruling)
[2012] VCC 1063
•9 August 2012
120
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
MEDICAL DIVISION
Case No. CI-09-01722
| ZIVKO DESPOTOSKI | Plaintiff |
| v | |
| NORTHERN HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2012 | |
DATE OF RULING: | 9 August 2012 | |
CASE MAY BE CITED AS: | Despotoski v Northern Health (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1063 | |
RULING
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SUBJECT – MEDICAL NEGLIGENCE
CATCHWORDS – Medical Negligence – settlement of proceeding – ostensible authority of solicitor to settle a proceeding – binding nature of agreement entered by plaintiffs solicitor to settle proceeding
CASES CITED – Donellan & Ors v Watson & Anor (1990) 21 NSWLR 335; Harvey v Phillips (1956) 95 CLR 235.
RULING – Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms D Galbally | Lander & Rogers |
HIS HONOUR:
1 In this action, the plaintiff has commenced a proceeding against the defendant claiming damages for injuries sustained by him whilst he was a patient of a hospital operated by the defendant in April 2006. The matter was the subject of an informal conference between the parties which was held at the offices of the plaintiff’s then solicitors, Messrs Slater & Gordon, on 17 August 2011.
2 It is put on behalf of the defendant that in the course of this conference:
(i) the solicitors acting on behalf of the defendant made a verbal offer to the plaintiff’s solicitors to settle the claim on the basis that the plaintiff would discontinue the proceeding and the parties would bear their own costs;
(ii) the acceptance of the offer made on behalf of the defendant was communicated verbally by the plaintiff’s solicitors, at which time it was represented that the plaintiff had provided instructions to his solicitors authorising the acceptance of the defendant’s offer.
3 In the circumstances, it is put on behalf of the defendant that the proceeding is settled and that an order should be made that the proceeding be dismissed with no order as to costs.
4 In asserting its position, Ms Victoria van Bavel, a senior associate employed by Lander & Rogers has, in an affidavit dated 16 February 2012, deposed to the matters to which I have previously referred.
5 In her affidavit, Ms van Bavel exhibited a number of communications passing between herself and Ms Emma Felman, a solicitor employed by Slater & Gordon, who represented the plaintiff at the informal conference, to the following effect:
· On 18 August 2011, an email was sent by Ms van Bavel to Ms Felman in the following terms:
“Dear Emma
I write further to the informal conference and attach the Release. I look forward to receiving the Release duly signed together with a Notice of Discontinuance.”
· On 20 September 2011, Ms Emma Cashen, Ms van Bavel’s personal assistant, forwarded the following message to Ms van Bavel:
“Vanessa from Slaters rang to let you know that they have not yet received the Release Agreement from their client and they have been chasing him. Once they receive it they will send it to us.”
6 On 8 November 2011, Ms Felman, on behalf of Slater & Gordon, made an application for leave to file a notice that Slater & Gordon ceased to act as the plaintiff’s solicitor in these proceedings. The application was supported by an affidavit sworn by Ms Felman in which she deposed that at an informal conference held on 17 August 2011, an offer was made by the defendant to settle the proceeding, which was accepted by Ms Felman on the basis of instructions given to her by the plaintiff.
7 Ms Felman’s position in this regard was supported by a letter dated 8 November 2011 sent by her to the plaintiff[1] in which she stated, amongst other matters:
“I confirm that on 17 August 2011 you attended an informal conference at Slater & Gordon. You made an oral binding agreement to accept the offer from the defendant. You now instruct that you no longer wish to accept that offer and you are in the process of engaging alternative legal representation to represent you in your claim against Northern Health.”
[1]Exhibit VRF3 to the affidavit
8 The plaintiff, who now appears in person, opposes the application made by the defendant for an order seeking that this proceeding be dismissed.
9 It is the plaintiff’s position that, whilst he had been advised by Ms Felman that the defendant would –
“… not give any money and for me [it] is best to accept that offer and I must sign [a] document that in the future I will not take any action against Northern Health;”[2]
(sic)
the plaintiff did not give Ms Felman instructions to settle his case, and that in these circumstances the defendant is not entitled to an order that the proceeding should be dismissed.
[2]See the defendant’s letter of 16 May 2012
10 It is clear that a dispute arises between the plaintiff and his previous solicitors, Messrs Slater & Gordon, as to the instructions given by the plaintiff to Ms Felman. The evidence to which I have referred however, satisfies me that in the course of the informal conference which was held in this matter, Ms Felman, in her capacity as the plaintiff’s solicitor, represented to Ms van Bavel, in her capacity as the defendant’s solicitor, that Ms Felman had instructions to accept the offer made on behalf of the defendant that this proceeding should be settled on the basis that each party should bear their own costs, and that the proceedings would be otherwise dismissed.
11 In the circumstances of the present case, I am satisfied:
(i) that the plaintiff’s solicitors represented themselves as having the plaintiff’s authority to settle the proceeding;
(ii) that the defendant had no reason to suspect that the plaintiff’s solicitors did not have the plaintiff’s authority to settle the proceedings;
(iii) that the defendant’s solicitors were entitled to rely upon the ostensible authority of the plaintiff’s solicitors to enter into an agreement on behalf of the plaintiff to settle the proceedings.
12 In Donellan & Ors v Watson & Anor,[3] the New South Wales Court of Appeal made the following statement which clearly sets out the position which, in my opinion, clearly applies to the current situation:
[3](1990) 21 NSWLR 335; See also Harvey v Philips (1956) 95 CLR 235
“A solicitor retained to conduct litigation ordinarily has both implied and
ostensible authority to bind his client to a compromise of those proceedings:
see Chown v Parrott (1863) 14 CB NS 74; 143 ER 372; Prestwich v Poley
(1865) 18 CB NS 806; 144 ER 662; Little v Spreadbury [1910] 2 KB 658 and
Waugh v H B Clifford and Sons Ltd[1982] Ch 374 at 388. Any instruction
from the client which restricts the solicitor's authority to compromise the
proceedings will only affect the other party who is on notice of that
restriction: see Thompson v Howley [1977] 1 NZLR 16 at 23-25 and the cases
there cited.”[4]
[4]See also Harvey v Phillips (supra)
13 It is clear that a conflict now arises between the plaintiff and Ms Felman as to the instructions given by the plaintiff to Ms Felman which entitled her to enter into an agreement on behalf of the plaintiff to settle this proceeding. It is not appropriate that I make any finding as to this issue which will be determined in due course should the plaintiff seek to take that matter further by commencing proceedings against his previous solicitors.
14 I am satisfied however, regardless of the outcome of that conflict, that in the course of the informal conference held in this matter, an agreement was entered between the plaintiff’s solicitors and the defendant’s solicitors that the matter should be dismissed on the basis that each party was to bear their own costs associated with the proceeding and that this agreement binds the plaintiff.
15 For the reasons which I have given, I am satisfied that I should make an order in this proceeding that the proceeding be dismissed with no order as to costs.
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