DS bht SJ v State of New South Wales

[2024] NSWSC 664

Supreme Court

New South Wales

Medium Neutral Citation:

DS bht SJ v State of New South Wales [2024] NSWSC 664

Hearing dates:

30 May 2024

Date of orders:

30 May 2024

Decision date:

30 May 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) I approve the settlement of the plaintiff’s claim pursuant to s 76 of the Civil Procedure Act 2005.

(2) I make the orders in paragraphs 2, 3, 4, 5, 7 and 8 in the Consent Orders filed in court.

(3) I note paragraph 6 of the Consent Orders.

Catchwords:

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Budini v Sunnyfield [2021] FCA 1540

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451

Category:

Procedural rulings

Parties:

DS bht SJ (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
A Joseph (Plaintiff)
D Hong (Defendant)

Solicitors:
Brooks Lawyers (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s):

2022/00148386

Publication restriction:

Nil

JUDGMENT – DUTY – EX TEmpore (revised)

1. This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (‘the Act’). The approval is necessary because the plaintiff, DS, is not yet 18 years of age and is therefore under a legal incapacity.

2. Non-publication and anonymisation orders were made by Judicial Registrar Howard in the District Court on 4 November 2022 when the matter was commenced in that court. It was transferred to the Supreme Court on or about 24 May 2023. So sensitive is the subject matter of the proceedings, that any mention of the facts would breach the non-publication orders.

3. The plaintiff was born in late 2007. He suffers from a variety of ailments that arise at least in part from the facts the subject of the proceedings.

4. Before me are the following exhibits:-

1. A confidential advice of Andrew Joseph of counsel dated 24 May 2024.

2. A confidential affidavit of DS’s tutor SJ sworn on 22 May 2024; and

3. A confidential affidavit of Dale Brooks, solicitor, sworn on 21 May 2024 exhibiting 713 pages of documents.

Relevant principles

5. In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in his best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (‘Mills’) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

6. It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 (‘Scandolera’) at [27].

7. In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether the plaintiff might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on the plaintiff if the litigation were to continue”: Scandolera at [29].

8. The tutor must also assent to the compromise, which has occurred here.

Consideration

9. I have carefully considered the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Mr Brooks and SJ in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.

10. In my view, there is risk that the plaintiff may not succeed in his action or that he will receive an amount in damages that is less than the settlement amount bearing in mind causation of damages issues.

11. Taking into account all the material that has been placed before me, in my opinion the proposed settlement is a compromise that is beneficial to, and in the best interests of, the plaintiff.

Orders

12. I make the following orders:-

1. I approve the settlement of the plaintiff’s claim pursuant to s 76 of the Civil Procedure Act 2005.

2. I make the orders in paragraphs 2, 3, 4, 5, 7 and 8 in the Consent Orders filed in court.

3. I note paragraph 6 of the Consent Orders.

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Decision last updated: 30 May 2024