Gasper v BHP Billiton Iron Ore Pty Ltd
[2011] FCA 798
•30 May 2011
FEDERAL COURT OF AUSTRALIA
Gasper v BHP Billiton Iron Ore Pty Ltd [2011] FCA 798
Citation: Gasper v BHP Billiton Iron Ore Pty Ltd [2011] FCA 798 Parties: DEREK IVAN GASPER (BY HIS NEXT FRIEND THE PUBLIC TRUSTEE) v BHP BILLITON IRON ORE PTY LTD File number: WAD 136 of 2010 Judge: BARKER J Date of judgment: 30 May 2011 Catchwords: PRACTICE AND PROCEDURE - application by tutor in proceeding of a person under a disability for approval of an agreement to settle in accordance with Order 43 rule 9 of the Federal Court Rules Legislation: Federal Court of Australia Act 1976 (Cth) s 50
Federal Court Rules O 43 r 9Date of hearing: 30 May 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: Mr RL Hooker Solicitor for the Applicant: Talbot Olivier Counsel for the Respondent: Ms K Eastman and Ms JB Murphy Solicitor for the Respondent: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 136 of 2010
BETWEEN: DEREK IVAN GASPER (BY HIS NEXT FRIEND THE PUBLIC TRUSTEE)
ApplicantAND: BHP BILLITON IRON ORE PTY LTD
Respondent
JUDGE:
BARKER J
DATE OF ORDER:
30 MAY 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The opinion of Counsel contained in annexure B to the affidavit of Rochelle Margaret Airey filed 18 May 2011 be confidential and not be published.
2.The Court approves the parties’ agreement to settle the proceedings in accordance with Order 43, rule 9(2) of the Federal Court Rules.
3.The proceeding be dismissed.
4.The parties bear their own costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 136 of 2010
BETWEEN: DEREK IVAN GASPER (BY HIS NEXT FRIEND THE PUBLIC TRUSTEE)
ApplicantAND: BHP BILLITON IRON ORE PTY LTD
RespondentJUDGE:
BARKER J
DATE:
30 MAY 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
APPLICATION FOR COURT APPROVAL OF AGREEMENT
By notice of motion filed 18 May 2011 the applicant seeks orders: first, that the Court approves the parties’ agreement to settle the proceedings in accordance with order 43 rule 9(2) of the Federal Court Rules; secondly, that the proceeding be dismissed; and thirdly, that the parties bear their own costs. The application is supported by the affidavit of Rochelle Margaret Airey, filed 18 May 2011. That affidavit indicates that the offer to settle has formed the basis of a deed of release that the parties have executed and provided to the Court through annexure A to that affidavit.
Mr Richard Hooker, who appears today as counsel on this application for the applicant, has advised as independent counsel in respect of that settlement and a copy of counsel’s opinion, dated 20 April 2011, is also annexed to the affidavit of Ms Airey. I order that it remain confidential and not be published pursuant to section 50 of the Federal Court of Australia Act 1976 (Cth), given the scope of the analysis concerning the applicant’s legal interests and my view that the Court should give its approval to the settlement. Given that there are no adverse comments or other matters in that opinion that require me to seek submissions or clarification from the respondent, there is no need for the respondent to receive a copy of that opinion. Counsel for the respondent was content to proceed on this basis.
The applicant here has a plenary administrator appointed, as I understand it, under the law of Western Australia, the plenary administrator being the Public Trustee. The affidavit of Ms Airey indicates that the Public Trustee also consents to the proposed compromise. Ms Airey deposes to the fact that counsel’s opinion is based on facts that are correct and complete as far as can be ascertained and also advises that Mr Hemery, a principal of the firm of Talbot & Olivier who have acted for the applicant, has considered the offer made and discussed it with the plenary administrator and that all are in agreement and hold the belief that it would be beneficial to the interests of the represented person if leave is granted to compromise the claim.
The opinion that has been provided by Mr Hooker, without going into detail, very adequately sets out the long history of the claims made on behalf of the applicant against the respondent following the termination of the applicant’s employment with the respondent some years ago and the strengths and weaknesses thereof. It is an opinion supported by a range of medical opinion over time that had been obtained by the respondent, which is all part of annexure C to the affidavit of Ms Airey.
The circumstances are such that the court is satisfied that it is appropriate for this matter to be resolved in terms of the deed of release that has been made between the parties. I formally make the orders sought in terms of the notice of motion.
ORDERS
The Court orders that:
1.The opinion of Counsel contained in annexure B to the affidavit of Rochelle Margaret Airey filed 18 May 2011 be confidential and not be published.
2.The Court approves the parties’ agreement to settle the proceedings in accordance with Order 43, rule 9(2) of the Federal Court Rules.
3.The proceeding be dismissed.
4.The parties bear their own costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 18 July 2011
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