Farrell v Allregal Enterprises Pty Ltd [No 3]

[2011] WASCA 247

FARRELL -v- ALLREGAL ENTERPRISES PTY LTD [No 3] [2011] WASCA 247

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 247
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:70/2008	Heard:	21 OCTOBER 2011
Coram:	PULLIN JA	Delivered:	11/11/11
No of pages:	18	Judgment Part:	1 of 1
Result:	CACV 70 of 2008 - Application granted CACV 101 of 2008 - Application granted CACV 1 of 2009 - Application granted
Category:	B
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Parties:	CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE ALLREGAL ENTERPRISES PTY LTD CARPAOLO NOMINEES PTY LTD ALLREGAL ENTERPRISES PTY LTD (Mortgagee in Possession: Perpetual Ltd)
Catchwords:	Application to settle appeal under r 60 Supreme Court (Court of Appeal) Rules 2005 (WA) Whether settlement for the benefit of person under a disability Meaning of 'independent opinion' Application granted
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 60
Case References:	Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Doyle v The Commonwealth of Australia [1985] HCA 46; (1985) 156 CLR 510 Farrell v CSL Ltd [2004] VSC 308 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Sosa v Carter [1978] WAR 123 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Wood v The Public Trustee of Western Australia (1995) 16 WAR 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FARRELL -v- ALLREGAL ENTERPRISES PTY LTD [No 3] [2011] WASCA 247 CORAM : PULLIN JA HEARD : 21 OCTOBER 2011 DELIVERED : 11 NOVEMBER 2011 FILE NO/S : CACV 70 of 2008 BETWEEN : CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE

Appellant

AND

ALLREGAL ENTERPRISES PTY LTD
Respondent

FILE NO/S : CACV 101 of 2008 BETWEEN : ALLREGAL ENTERPRISES PTY LTD

First Appellant

CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE
Second Appellant

AND

CARPAOLO NOMINEES PTY LTD
Respondent

(Page 2)

FILE NO/S : CACV 1 of 2009 BETWEEN : CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE

Appellant

AND

ALLREGAL ENTERPRISES PTY LTD (Mortgagee in Possession: Perpetual Ltd)
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

File No : CIV 1788 of 2008

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 2250 of 2007

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

File No : CIV 2271 of 2008

Catchwords:

Application to settle appeal under r 60 Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether settlement for the benefit of person under a disability - Meaning of 'independent opinion' - Application granted

(Page 3)

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 60

Result:

CACV 70 of 2008 - Application granted

CACV 101 of 2008 - Application granted
CACV 1 of 2009 - Application granted

Category: B

Representation:

CACV 70 of 2008

Counsel:

Appellant : Mr B W Ashdown
Respondent : No appearance

Interested party : Mr R C Waugh

Solicitors:

Appellant : Public Trustee (WA)
Respondent : No appearance

Interested party : Self-represented

(Page 4)

CACV 101 of 2008

Counsel:

First Appellant : No appearance
Second Appellant : Mr B W Ashdown
Respondent : Mr C S Williams

Interested Party : Mr R C Waugh

Solicitors:

First Appellant : No appearance
Second Appellant : Public Trustee (WA)
Respondent : Solomon Brothers

Interested Party : Self-represented

CACV 1 of 2009

Counsel:

Appellant : Mr B W Ashdown
Respondent : No appearance

Interested party : Mr R C Waugh

Solicitors:

Appellant : Public Trustee (WA)
Respondent : No appearance

Interested party : Self-represented

(Page 5)

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Doyle v The Commonwealth of Australia [1985] HCA 46; (1985) 156 CLR 510
Farrell v CSL Ltd [2004] VSC 308
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Sosa v Carter [1978] WAR 123
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Wood v The Public Trustee of Western Australia (1995) 16 WAR 58


(Page 6)

1 PULLIN JA: The Public Trustee, as the court appointed next friend of the appellant, Carol Elizabeth Farrell (also known as Khris Jane Wiaceck) has made an application for court approval of a proposal to settle the three appeals by Mrs Farrell on terms that each be dismissed with no order as to costs.

2 The application is made pursuant to r 60 of the Supreme Court (Court of Appeal) Rules 2005 (WA), which provides that a settlement or compromise of an appeal to which a person under a disability (as defined in the Rules of the Supreme Court 1971 (WA) (RSC) O 70 r 1) is a party, has no effect unless it is approved by a single judge. The rule also provides that the application must be filed with an affidavit and unless otherwise ordered, an opinion of an independent lawyer.

3 The application is supported by an affidavit sworn by Mr John Francis Skinner, who is the Public Trustee for the State of Western Australia. The affidavit filed in each case reveals that the Public Trustee instructed Mr Brendan Ashdown, a member of the Western Australian Bar Association to provide an opinion as to whether the proposed compromise of the appeal was for the benefit of Mrs Farrell. A copy of Mr Ashdown's opinion is exhibited to the affidavit. Mr Skinner reveals that he has discussed the proposed compromise of the appeal and counsel's opinion with the principal legal officer of the Public Trustee, deposes that he believes that counsel's opinion has given proper consideration to all relevant aspects of the appeal, has considered counsel's opinion and agrees that the proposed compromise of the appeal is for the benefit of Mrs Farrell.

4 A settlement will only be approved by the court if it is for the benefit of the person under the disability: Wood v The Public Trustee of Western Australia (1995) 16 WAR 58, 62. In approving the settlement or compromise of an appeal, the court does not hear the application as if it were itself the appeal and then give or withhold its approval by comparing the proposed settlement with the judgment which might have been given on appeal. What the court is called upon to do, is to satisfy itself that all the facts relevant to the appellant's appeal have been brought together and considered by the appellant's legal advisers and, unless the requirement is dispensed with, satisfy itself that the settlement is supported by the opinion of independent counsel. It is the task of the court itself to consider the opinion and the reasons for it. If having done that, it appears that all aspects of the case have received proper consideration, the court should be slow to disagree with the opinion unless it reveals some clear error of reasoning which materially affects the opinion expressed. The

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court must bear in mind the risks of litigation. The court must also satisfy itself that the opinion of counsel has been considered and understood by the appellant's litigation guardian and should give proper weight to the fact that the litigation guardian wishes to accept the settlement: Sosa v Carter [1978] WAR 123, 124 (Burt CJ).

The subject matter of the litigation

5 The appeals relate to two properties known as the Muston Grove property and the Buntine Road property. Perpetual Ltd (Perpetual) advanced funds to Allregal Enterprises Pty Ltd (Allregal) for the purchase of, and Perpetual took a first mortgage over, the Buntine Road property. Carpaolo Nominees Pty Ltd (Carpaolo), sold the Muston Grove property and provided vendor finance to Mrs Farrell, the purchaser. Carpaolo took a mortgage over the Muston Grove property and the Buntine Road property to secure repayment. The following chronology is taken from Mr Ashdown's opinion. The chronology of events in relation to the Buntine Road property is as follows:

12 September 1996	Allregal as trustee of the CF Family Trust became registered proprietor of the Buntine Road property.
12 September 1996	Perpetual became the registered proprietor of the first mortgage (G278975) over the Buntine Road property to secure repayment of money it had advanced.
12 September 1996	Commonwealth Bank became the registered proprietor of a second mortgage (G278976) over the Buntine Road property.
12 September 1996	A third mortgage (G278977) was registered over Buntine Road property in favour of Carpaolo (the chronology relating to the Muston Grove property below reveals that on the same day Carpaolo also took a mortgage over the Muston Grove property).
18 June 1997	A default notice was issued by Perpetual under its mortgage.

(Page 8)

10 November 1997	Perpetual issued a Supreme Court writ commencing action CIV 2205 of 1997 seeking possession of the Buntine Road property.
23 January 1998	Mrs Farrell was declared bankrupt upon a debtor's petition.
24 January 2001	Mrs Farrell was discharged from bankruptcy.
10 October 2002	The Guardianship and Administration Board made a Guardianship Order in respect of Mrs Farrell in favour of Mr Waugh. Mrs Farrell thereby became a person under a disability within the meaning of O 70 of the Rules of the Supreme Court.
7 November 2005	The Commonwealth Bank mortgage was discharged.
30 March 2006	Mr Waugh was made bankrupt on the petition of the Deputy Commissioner of Taxation.
6 December 2007	Carpaolo issued a writ commencing action CIV 2250 of 2007 against Allregal and Mrs Farrell seeking recovery of the debt due to it and possession of the Buntine Road property and the Muston Grove property. Due to priority of the claim by Perpetual to the Buntine Road property, this action subsequently became an action for debt and possession of the Muston Grove property only.
21 December 2007	Judgment in Supreme Court action CIV 2205 of 1997 entered by Martin CJ in favour of Perpetual against Allregal for possession of the Buntine Road property. This judgment was not appealed against. Perpetual later arranged for the issue of a Property Seizure and Delivery Order.

(Page 9)

7 February 2008	Mrs Farrell lodged caveat K500974 against the Buntine Road property claiming an estate or interest as chargee.
26 March 2008	Mrs Farrell applied in Supreme Court action CIV 2205 of 1997 for an order against Perpetual to set aside the Property Seizure and Delivery Order in respect of the Buntine Road property.
14 April 2008	The application to set aside the Property Seizure and Delivery Order over the Buntine Road property was dismissed by Martin CJ ([2008] WASC 134). The reasons for decision of the Chief Justice reveal that Mrs Farrell was claiming that there were leasehold interests in the property but the Chief Justice found that Perpetual as first mortgagee could not have its interest defeated by a subsequent equitable interest and that Perpetual had not been guilty of any fraud so that s 68 of the Transfer of Land Act 1893 (WA)gave Perpetual indefeasible title. This judgment was not appealed against.
12 June 2008	Perpetual requested a 21-day notice to remove caveat K500974. The Registrar of Titles gave such a notice.
1 July 2008	Caveat K644203 was lodged by Mrs Farrell against the Buntine Road property claiming an estate or interest as sole beneficiary of the CF Family Trust.
2 July 2008	Supreme Court action CIV 1788 of 2008 was commenced by Mrs Farrell seeking to extend caveat K500974.

(Page 10)

3 July 2008	Hearing of Supreme Court action CIV 1788 of 2008 before Martin CJ where the application to extend caveat K500974 was dismissed.
4 July 2008	Caveat K500974 lapsed pursuant to s 138B of the Transfer of Land Act.
4 July 2008	Caveat K647788 lodged by Allregal against the Buntine Road property claiming an estate or interest as registered proprietor to prevent improper dealings.
14 July 2008	Court of Appeal action CACV 70 of 2008 commenced by Mrs Farrell against decision of the Chief Justice dated 3 July 2008 in Supreme Court action CIV 1788 of 2008.
2 October 2008	Supreme Court action CIV 2271 of 2008 commenced by Perpetual seeking removal of caveats K644203 and K647788 lodged by Mrs Farrell and Allregal against the Buntine Road property.
10 October 2008	Application by Allregal to restrain mortgagee sale of the Buntine Road property by Perpetual. Application dismissed by Templeman J in CIV 2205 of 1997. This decision was not appealed against.
16 December 2008	Martin CJ in CIV 2271 of 2008 ordered removal of caveats K644203 and K647788 and granted liberty to Mrs Farrell and Allregal to apply to rehear the application.
29 December 2008	Application filed by Mrs Farrell and Allregal to rehear pursuant to liberty to apply in action CIV 2271 of 2008.

(Page 11)

Late 2008	Perpetual as mortgagee in possession entered into contract of sale to sell the Buntine Road property to a third party. The sale price was $2,150,000 which was in accordance with a valuation obtained from a valuer. The proceeds were insufficient to discharge the total amount due to Perpetual. Carpaolo was paid nothing under the third mortgage.
2 January 2009	Application by Mrs Farrell and Allregal dated 29 December 2008 in action CIV 2271 of 2008 dismissed by Martin CJ.
5 January 2009	Mrs Farrell commenced appeal CACV 1 of 2009 against the decisions of the Chief Justice of 16 December 2008 and 2 January 2009.
9 January 2009	Transfer of title of the Buntine Road property by Perpetual to a bona fide purchaser for value without notice.
13 April 2009	Mr Waugh discharged from bankruptcy by operation of law.

6 Below is the chronology of events in relation to the Muston Grove property:

19 May 1994	Mrs Farrell became registered proprietor of the Muston Grove property.
19 May 1994	Mortgage F554514 granted to Adelaide Bank registered over the Muston Grove property.
12 September 1996	Mrs Farrell granted a mortgage to Carpaolo over the Muston Grove property (G278979).

(Page 12)

10 October 2002	Guardianship order made concerning Mrs Farrell.
27 August 2007	Notice of demand issued by Carpaolo.
6 December 2007	Carpaolo commenced Supreme Court action CIV 2250 of 2007 against Allregal and Mrs Farrell for debt recovery and possession of the Buntine Road property and the Muston Grove property.
11 February 2008	Mrs Farrell lodged caveat K502779 claiming an estate or interest as registered proprietor to prevent improper dealings.
24 September 2008	Master Sanderson granted judgment in favour of Carpaolo in Supreme Court action CIV 2250 of 2007 for $1,027,967.72 together with an order for possession of the Muston Grove property.
14 October 2008	Mrs Farrell commenced appeal CACV 101 of 2008 against judgment of Master Sanderson.
27 February 2009	Contract for sale of the Muston Grove property by Carpaolo as mortgagee in the sum of $1,025,000.
20 April 2009	Mrs Farrell commenced action CIV 1726 of 2009 seeking orders to extend the operation of caveat K502779.
22 April 2009	Mrs Farrell lodged caveat K917552 over land as a registered proprietor to prevent improper dealings.
30 April 2009	Caveat K502779 was not extended and lapsed.

(Page 13)

15 June 2009	Mrs Farrell commenced action CIV 2094 of 2009 seeking orders to extend the operation of caveat K917552.
19 June 2009	Caveat K917552 was not extended and lapsed.
31 August 2009	Carpaolo transferred title to the Muston Grove property to third party purchaser.
31 August 2009	After payment out to Adelaide Bank to obtain the discharge of its mortgage, Carpaolo received a net realisation of $659,693.62. This left a shortfall of $438,000 owing to Carpaolo.

There were sustainable grounds of appeal in each appeal

7 Order 70 r 2(1) RSC provides that a person under a disability cannot bring or make a claim in any proceedings except by a next friend and cannot defend or intervene in any proceedings or appear in any proceedings except by guardian ad litem. The prohibition in that rule cannot be dispensed with without a provision in the rules giving the court the power to do so: Doyle v The Commonwealth of Australia [1985] HCA 46; (1985) 156 CLR 510, 518. A court cannot ignore the prohibition against the continuation of a proceeding in the absence of a next friend or guardian ad litem. If the proceedings by or against a person under a disability is conducted without such a litigation guardian, then the person under a disability is in effect not heard: Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 [14], [43], [52].

8 Mr Ashdown in his opinion, concluded that the fact that the proceedings conducted in the proceedings under review were without the appointment of a litigation guardian meant that there was a miscarriage of justice and that prima facie Mrs Farrell had a right to have the judgment set aside to permit a rehearing on the merits: Murphy v Doman [48]. On that basis there were sustainable grounds of appeal in each of the three appeals.

(Page 14)

However the appeals would have been dismissed

9 However, Mr Ashdown correctly noted in his opinion that the court on appeal would refuse relief if it was satisfied that a rehearing could not lead to a different result: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [28], [48] - [50]; Murphy v Doman [51].

CACV 70 of 2008

10 In the underlying proceedings CIV 1788 of 2008, Mrs Farrell commenced proceedings while she was a person under a disability without the appointment of a next friend. The proceedings were therefore irregular. Mrs Farrell sought an order extending her caveat no K500974 in relation to the Buntine Road property. The proceedings were to extend the operation of the caveat. On 4 July 2008 the caveat lapsed pursuant to s 138B(2) of the Transfer of Land Act. The lapse occurred by reason of the statutory effect of the provisions and allowing an appeal could not give rise to a further hearing which could preserve or reinstate the caveat particularly where the property had been sold by Perpetual as mortgagee to a purchaser for value who now has indefeasible title under the Transfer of Land Act. That and other reasons expressed by counsel led him to the conclusion that there were no prospects of success in the appeal and that the appeal ought to be dismissed. Counsel expressed the opinion that the proposed settlement by way of dismissal of the appeal with no order as to costs inter partes is for the benefit of Mrs Farrell.

CACV 1 of 2009

11 The originating summons issued by Perpetual was against Mrs Farrell being a person under a disability. The application related to caveats over the Buntine Road property. The Supreme Court ought to have declined to proceed further until such time as the appointment of a guardian ad litem for Mrs Farrell had been made. The decision and judgment entered was therefore prima facie irregular and liable to be set aside on the basis of miscarriage of justice. However, counsel considered that no materially different result would follow if the appeal were allowed and the underlying proceedings sent to trial or a final hearing. Even if the appeal continued, this court could not make an order restoring the caveats because the title to the Buntine Road property is now registered in the name of a purchaser who has indefeasible title. Counsel expressed the opinion that it is for the benefit of Mrs Farrell that the appeal be dismissed with no order as to costs inter partes.

(Page 15)

CACV 101 of 2008

12 The underlying proceedings in this case related to the Muston Grove property and were commenced by Carpaolo against Mrs Farrell who was a person under a disability. Carpaolo sought summary judgment for the debt owing to it and an order for possession. Summary judgment was granted by Master Sanderson for the debt and an order was made that possession of the Muston Grove property be given to Carpaolo. The action ought not to have proceeded until a guardian ad litem had been appointed. Prima facie there was a miscarriage of justice and the judgment would be set aside unless no materially different result would follow. Counsel having reviewed the material available to him, concluded that no different result would follow and that, in addition, any right to require an account from the mortgagee or payment of any surplus proceeds after discharge of the first and second registered mortgages, would be vested solely in the Trustee in Bankruptcy. The order for possession could not be reversed because the title to the property is now in the name of a purchaser and the title is indefeasible. Mrs Farrell's guardian also submitted that the part of the Carpaolo debt which Carpaolo has not recovered from the two property sales will hang like a 'sword' over Mrs Farrell's head (ts 93). That is not so. Mrs Farrell has been discharged from bankruptcy and is thereby freed from any claim for a debt which was unsecured. Counsel's opinion is that it is for the benefit of Mrs Farrell that the appeal be dismissed with no order as to costs inter partes.

Mr Waugh's submissions

13 Before expressing a conclusion about the application, I must mention that Mrs Farrell's ex-husband, Mr Waugh, who has been appointed by SAT as Mrs Farrell's guardian under the Guardianship and Administration Act 1990 (WA), asked the court if he could make submissions in relation to the application. Mr Waugh is not a lawyer and he was involved in the financial arrangements which form the background to these appeals. However, the guardianship order made by SAT authorised Mr Waugh to liaise with the Public Trustee on Mrs Farrell's behalf about the litigation. Mr Waugh was provided a copy of Mr Ashdown's opinion and was informed that he would be permitted to make comments upon it. Strictly speaking, Mr Waugh had no right to make submissions but giving him the opportunity to do so on Mrs Farrell's behalf was an indulgence which caused no injustice and gave me the opportunity to explain to Mrs Farrell and Mr Waugh why Mr Ashdown was of the view that the appeals should be settled.

(Page 16)

14 Mr Waugh sent the court a 98 page response to Mr Ashdown's opinion. This in turn referenced a great many documents. The response has been considered by Mr Ashdown. The comments do not lead Mr Ashdown to alter the opinion he has expressed about the proposed settlement of the appeals (ts 86).

15 Many parts of Mr Waugh's response must be disregarded. He descends into expressions of opinion and comments which in many areas do not bear at all upon the decision about whether the appeals should be settled. For example, he expresses a view about the decision of Bongiorno J in the case of Farrell v CSL Ltd [2004] VSC 308. That case and the outcome was mentioned by Mr Ashdown for limited purposes, one being the adverse comments made by Bongiorno J about Mrs Farrell's credibility. Mr Waugh has dedicated many pages to the reasons for judgment of Bongiorno J. Mr Waugh asserts that Bongiorno J was 'wrong' or 'failed to understand' aspects of Mrs Farrell's case (see pages 48, 49 and 50) or made 'misinformed comments' (page 78). Mr Waugh refers to various paragraphs in the reasons and asserted that he 'totally rejected' them (page 79). Mr Waugh's comments in this regard must be entirely disregarded.

16 In his response, Mr Waugh also claims that in relation to his dealings with Perpetual (the mortgagee in possession and a respondent in CACV 1 of 2009) that persons attempted to 'sabotage my good reputation' (page 63). These comments are irrelevant and argumentative and must be disregarded.

17 There is one point however, that Mr Waugh raises which must be addressed. Rule 60 of the Court of Appeal (Supreme Court) Rules states that the application for approval of a settlement or compromise must be filed with an opinion of an 'independent' lawyer. Mr Waugh contends that Mr Ashdown is not an 'independent' lawyer because he has been retained by the Public Trustee. That fact alone does not mean he is not independent. Whenever a lawyer is retained to provide an opinion in support of a compromise, he or she will be retained by the party making the application.

18 The word 'independent' has its ordinary meaning. It means 'not influenced by others in manners of opinion, conduct, etc; thinking or acting for one's self … not subject to another's authority or jurisdiction; autonomous; free … not influenced by the thought or action of others' The Macquarie Dictionary.

(Page 17)

19 There may be cases where a court perceives that a lawyer providing an opinion has some relationship with the litigation guardian which leads to the conclusion that the lawyer is not independent. This would be of concern in circumstances where there may be a suspicion that the litigation guardian may not have the interests of the person represented at heart. This is not such a case. The Public Trustee is a statutory body. Mr Ashdown is a member of the independent bar and he has prepared an opinion which has closely examined the merits of the three appeals. Mr Waugh contends that Mr Ashdown is not independent because he appeared on behalf of the Public Trustee at hearings in early 2009 where there was a question whether the Supreme Court would appoint the Public Trustee or the Public Advocate as the litigation guardian to represent Mrs Farrell's interests and whether the Public Trustee could be appointed by the court in circumstances where it did not consent to the appointment. Mr Ashdown did appear when those matters were considered. They were matters involving the power of this court to appoint the Public Trustee. Once those matters were resolved, Mr Ashdown was retained to advise on the merits of the appeals and whether they should be compromised. My conclusion is that Mr Ashdown's opinion is that of an 'independent' lawyer. Even if I had reached a conclusion that on a proper construction of r 60 Mr Ashdown was not independent, I would have been prepared to act on Mr Ashdown's opinion and make an order under r 60 dispensing with the need for an opinion of an independent lawyer. This is because of the correctness of the opinions he has expressed about the fact that no different orders would be made if the appeals proceeded to a hearing.

20 Mr Waugh also refers to an affidavit filed by Mr Skinner, in March 2009 (page 8). Mr Skinner is employed by the Public Trustee. Mr Skinner was there addressing the concerns of the Public Trustee about its appointment as litigation guardian. The affidavit stated that the Public Trustee did not have the capacity to take on the affairs of Mrs Farrell 'on … short notice' and that the conduct of the actions in his view would divert resources of the legal section of the Public Trustee from 'more deserving cases'.

21 Mr Waugh submitted that the latter remark was 'disturbing'. Mr Skinner's reference to 'more deserving cases' was clearly to cases more deserving of immediate attention. The Public Trustee was not able to deal with the present appeals immediately but, given time (which was given), the Public Trustee was able to thoroughly examine the history of the litigation. I am satisfied that the Public Trustee has properly taken on the task of gathering and assembling the information necessary to brief Mr Ashdown, and properly considered and acted upon his opinion.

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Conclusion

22 I am satisfied that counsel in his opinion, has taken into account all relevant considerations. The next friend wishes to settle. The proposed settlement involving a dismissal of all appeals by Mrs Farrell on the basis that there be no inter partes costs order is for the benefit of Mrs Farrell because if the appeals proceeded to a hearing then it is likely they would

be dismissed with an order for costs against Mrs Farrell. I approve the settlement of Mrs Farrell's three appeals on the terms that:

(a) the appeal be dismissed;

(b) there be no order as to costs of the appeal inter partes;

(c) the Public Trustee have liberty to apply to a single judge of the Court of Appeal with respect to any order for costs against a non-party to the appeal.