Dickson v Park - [2023] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation: Dickson v Park & Anor [2023] NSWSC 569
Hearing dates: 26 April 2023
Date of orders: 26 April 2023
Decision date: 26 April 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The settlement is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW) in accordance with the terms of the Consent Judgment dated 24 March 2023 signed by the parties.
(2)   I make orders in accordance with paragraphs 1, 2 and 6 of the Consent Judgment.
(3)   I note paragraphs 3, 4, 5, 7, 8, 9 and 10 of the Consent Judgment.
(4) In accordance with s 77(2) of the Civil Procedure Act 2005 (NSW), I direct that, after deduction of the amounts referred to in the affidavit of Elizabeth Marion Utting dated 20 April 2023 and any further deductions payable pursuant to any government charges, the balance be paid into Court, subject to further orders of the Court.
(5)   I note it is the intention of the plaintiff’s son, Brett Dickson, to make an application to be appointed the manager of the estate. That is a matter for the Court to consider when the application is made.
(6)   I vacate the hearing date of 19 June 2023.

Catchwords:
CIVIL PROCEDURE — Personal injury claim — Settlement or discontinuance — Court approval – where plaintiff is under a legal incapacity – where there is competing credible expert evidence – whether there are sufficient prospects of obtaining a more favourable judgment

Legislation Cited:
Civil Liability Act 2002 (NSW), s 5O
Civil Procedure Act 2005 (NSW), ss 76, 77(2)

Cases Cited:
Elderfield v Transport Accident Commission (2010) 55 MVR 206; [2010] VSC 116
Permanent Trustee Company Ltd v Mills (2007) NSWLR 1; [2007] NSWSC 336
Somerset v Ley [1964] 1 WLR 640

Category: Principal judgment
Parties: Gregory Dickson by his tutor Carlie Relf (Plaintiff)
Dr Hyunmin Park (Second Defendant)
Nepean Blue Mountains Local Health District (Third Defendant)
Representation:
Counsel:
P D’Arcy-King (Plaintiff)
B Bradley (Second Defendant)
Solicitors:
Law Partners (Plaintiff)
Makinson d’Apice Lawyers (Second and Third Defendants)

File Number(s): 2020/283023

REVISED EX TEMPORE Judgment

This matter comes before me today by way of an application for approval of a settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (“the CPA”). Mr D’Arcy-King appears for the plaintiff and Mr Bradley appears for the defendants.
As the plaintiff is a person who is under a legal incapacity, any settlement must be approved by the court pursuant to s 76(3) of the CPA. The Court’s function with respect to any such application is essentially protective. I must review all of the evidence presented on the application and be satisfied that the settlement is for the plaintiff’s benefit.^[1]
1. Permanent Trustee Company Ltd v Mills (2007) NSWLR 1; [2007] NSWSC 336; Somerset v Ley [1964] 1 WLR 640.
The question of whether any settlement is for the benefit of a person under a legal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 569
Decision Date: 26 April 2023

CaseChat Overview and Summary

The case of Dickson v Park involved a personal injury claim where the plaintiff, Dickson, sought approval from the court for a settlement agreement. Dickson was represented by a litigation guardian, Park, due to his legal incapacity. The defendants, who were represented by their own legal team, argued that the settlement amount was inadequate. The court was tasked with determining whether the settlement was fair and reasonable, given the competing expert evidence presented by both sides. Additionally, the court had to consider whether there were sufficient prospects of obtaining a more favourable judgment if the case proceeded to trial.

The primary legal issue before the court was whether the settlement amount was fair and reasonable, taking into account the plaintiff's legal incapacity and the competing expert evidence regarding the prospects of a more favourable judgment at trial. The court also had to consider whether the settlement amount was within the range of outcomes that a competent plaintiff might reasonably accept. Furthermore, the court had to assess the credibility and weight of the expert evidence presented by both parties to determine whether there were sufficient prospects of obtaining a more favourable judgment if the case proceeded to trial.

The court determined that the settlement amount was fair and reasonable, considering the plaintiff's legal incapacity and the competing expert evidence. The court found that the settlement was within the range of outcomes that a competent plaintiff might reasonably accept. The court also found that there were not sufficient prospects of obtaining a more favourable judgment at trial, given the competing expert evidence. Consequently, the court approved the settlement agreement. The court emphasised the importance of protecting the interests of a plaintiff who is under a legal incapacity and the need to balance the competing interests of the parties involved in the settlement process.

The court's final order was to approve the settlement agreement between the plaintiff and the defendants. The court found that the settlement amount was fair and reasonable, considering the plaintiff's legal incapacity and the competing expert evidence. The court also found that there were not sufficient prospects of obtaining a more favourable judgment at trial. The court's decision highlights the importance of protecting the interests of a plaintiff who is under a legal incapacity and the need to balance the competing interests of the parties involved in the settlement process.

Orders