Donnellan v The Public Trustee [No 2] - [2010] WASC 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DONNELLAN -v- THE PUBLIC TRUSTEE [No 2] [2010] WASC 214

CORAM: KENNETH MARTIN J

HEARD: 25 JUNE 2010

DELIVERED : 19 AUGUST 2010

FILE NO/S: CIV 2419 of 2004

BETWEEN: CHRISTINE ANNE DONNELLAN (By her next friends WALTER FRANCIS MARTINS and AUDREY CONSTANCE MARTINS joint plenary guardians and administrators)
Plaintiff
AND
THE PUBLIC TRUSTEE
Defendant
JACKSON MCDONALD
Third Party

Catchwords:

Abuse of process - Collateral attack against orders of District Court - Permanent stay - Application successful in part

Witness immunity principle - Strike out application - Successful in part - Paragraphs struck out - Reserved costs orders

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Rules of the Supreme Court 1971 (WA), O 76 r 10

Result:

Defendant's application successful in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr J D Allanson SC & Mr D Bruns
Defendant:     Mr G T W Tannin SC & Mr C Bydder
Third Party                  :     No appearance

Solicitors:

Plaintiff:     Griffiths & Godecke
Defendant:     State Solicitor for Western Australia
Third Party                  :     Pynt & Partners

Case(s) referred to in judgment(s):

Alpine Holdings Pty v Feinar [2008] WASCA 85
Arthur J S Hall & Co (A firm) v Simons [2002] 1 AC 615
C v FAI General Insurance Co Ltd (Unreported, QSC, 16 June 1998)
Cabassi v Vila (1940) 64 CLR 130
Cadwallender v The Public Trustee [2003] WASC 72
Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 269
Donnellan v The Public Trustee [2007] WASC 213
D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Fowler v Gray [1982] Qd R 334
Mickelberg v The State of Western Australia [2007] WASC 140
Musca v Columbini [1970] WAR 33
Sosa v Carter [1978] WAR 123
Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689
T'Hart v Director General of the Department of Community Development [2002] WASC 245

KENNETH MARTIN J:

Overview

The defendant applies to permanently stay components of the plaintiff's statement of claim as an abuse of process. Additionally, the defendant seeks to strike out parts of the re‑amended statement of claim (RESOC) on the basis that they infringe principles of witness immunity. The defendant also seeks to have some previous reserved costs determinations resolved in its favour.

Background

The plaintiff, born on 6 May 1957, sustained very serious head injuries in a motor vehicle accident in December 1973, when she was just 16 1/2 years of age.
In 1977, proceedings were instituted on her behalf against the negligent driver, a Mr Unkovich, who was insured through the compulsory motor vehicle insurance arrangements regulated by the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The Public Trustee, who is the defendant in these proceedings, was appointed as the plaintiff's next friend in 1977, in the proceedings commenced against the driver, as District Court action No 87 of 1977.
Liability was not in issue in those proceedings. The defendant driver's interests were represented…

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.

Keep reading for free

Create a free CaseChat account to read Donnellan v The Public Trustee [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] WASC 214
Decision Date: 19 AUGUST 2010

CaseChat Overview and Summary

This case involved a dispute between the plaintiff, Donnellan, and the Public Trustee, concerning the adequacy of a proposed settlement amount in a case that originated in the District Court in 1993. The plaintiff sought a permanent stay of the proceedings, arguing that the settlement was inadequate and that there had been an abuse of process. The court was required to determine whether the settlement amount was sufficient and whether there had been any abuse of process.

The legal issues before the court were whether the compromise proposal of $240,000 was adequate to cover the plaintiff's needs and whether there had been an abuse of process in the handling of the case. The court considered the opinion of independent counsel, the affidavits of the parties, and the principle of witness immunity. The court found that the $240,000 compromise proposal was not sufficient to cover the plaintiff's needs, and that there had been an abuse of process. The court granted a permanent stay in part, striking out certain paragraphs from the plaintiff's statement of claim and ordering reserved costs.

The court found that the opinion of independent counsel, while thorough, did not address the plaintiff's long-term needs and the potential inadequacy of the settlement amount. The court also found that there had been an abuse of process in the handling of the case, as the District Court had not been adequately informed of the plaintiff's needs and the unsuitability of the plaintiff's husband as an attendant carer. The court granted a permanent stay in part, striking out certain paragraphs from the plaintiff's statement of claim and ordering reserved costs. The court found that the plaintiff's claims were statute-barred, but that the abuse of process claims were not.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The provisions of RSC O 70 r 10 were still applicable in the District Court in 1993. They ordinarily required an independent counsel's opinion supporting a compromise proposal, where the party seeking to compromise suffered under a disability. Here, the written opinion was provided by Mr P W Nichols of counsel. The opinion of 8 October 1992 comprised some seven and a half pages of advice concerning the $240,000 compromise proposal. The opinion concluded:ConclusionThere is no certainty that the court would consider an increase in the periodical provision and some prospect that the Plaintiff would be benefitted by a lump sum. These considerations suggest to me that the proposition can reasonably be put to the court as one that could be accepted as in the best interests of the Plaintiff. Counsel's opinion does not appear to have been updated between when it was provided (8 October 1992) and the filing and determination of the plaintiff's chamber summons of 29 June 1993. Mr McKenna's affidavit attached a consent to accept the proposed settlement amount by the Public Trustee, by the then, Mr Kenneth Eric Bradley. Mr Bradley also swore an affidavit of 29 June 1993 in support of the compromise proposal. At par 8 of this affidavit, Mr Bradley deposed:I have read the opinion dated 8 October 1992 of Mr P Nichols of Counsel exhibited to the affidavit of David Maxwell McKenna. The facts on which Counsel's opinion is based are correct and complete as far as can be ascertained by me. Mr Bradley concluded at par 9:I have discussed the matter with the Plaintiff's solicitors and I consent to the proposed settlement subject to it being approved by a Judge of the District Court. The plaintiff's 1993 chamber summons came on for hearing on 19 July 1993 before Kennedy DCJ (as her Honour then was) in the District Court. There is no transcript as to what occurred. However, it appears from what will follow that her Honour was not satisfied about the adequacy of the $240,000 redemption amount compromise proposal, notwithstanding the two supporting affidavits (by Mr McKenna and Mr Bradley), independent counsel's opinion, and the consents to the proposal by both the defendant (represented by the insurer's solicitors Batros & Sierakowski) and the plaintiff (represented by the Public Trustee). Her Honour adjourned the matter over, until 6 August 1993. In the meantime, a further affidavit was sworn by Mr Bradley, as Public Trustee, on 5 August 1993. In his second affidavit Mr Bradley now deposed:2.I was subsequently informed that when the matter came on before Her Honour Judge Kennedy she expressed concern that the offer being put forward for approval would not be sufficient to pay a carer's wage for the life expectancy of the plaintiff. I further understand that the matter was adjourned so that I could give further consideration to the proposal and in particular how care would be provided to Ms Donnellan when the available funds were exhausted. The second affidavit of Mr Bradley is attachment H to Mr Tjhung's affidavit of 12 June 2007 in these proceedings. The full terms of Mr Bradley's second affidavit are important. At various places he refers to personal discussions with Mr Keith Donnellan (the plaintiff's husband since 1984) concerning Ms Donnellan's attendant care needs. At par 3 Mr Bradley mentions that Ms Donnellan was at that time receiving assistance from a carer for 37.5 hours per week, at a cost of $370.74 gross per week. He continued:I am also informed by him that he is currently unemployed, although he is seeking work despite his own disabilities, namely blindness and an injury to his shoulder.(That paragraph is relevant to an assertion that is now made by the plaintiff in the RESOC that Kennedy DCJ was not advised of Mr Donnellan's blindness and therefore of his unsuitability as an attendant carer for his wife.)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.