Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital

[2018] NSWSC 1799

Supreme Court

New South Wales

Medium Neutral Citation:	Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital [2018] NSWSC 1799
Hearing dates:	On the papers
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)   I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 22 November 2018 and signed by the legal representatives of the parties. (2) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005. (3)   I make orders in accordance with paragraphs 1 to 5 inclusive of that consent judgment which for identification I will initial, date with today’s date and place with the papers. I note paragraph 6. (4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct.
Catchwords:	CIVIL PROCEDURE – settlement – court approval – where proceeding commenced on behalf of minor – where settlement amount takes into account the prospect that the plaintiff may not succeed – settlement approved
Cases Cited:	Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital [2018] NSWSC 1743
Category:	Procedural and other rulings
Parties:	Ghina Ghazi by her tutor Assia Sfajalani (Plaintiff) Western Sydney Local Health District (Defendant)
Representation:	Counsel: M J Cranitch SC with A D Campbell (Plaintiff) M Windsor SC and S A Woods (Defendant)   Solicitors: Gerard Malouf & Partners (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2015/215738
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 14 November 2018, I declined to approve the compromise of these proceedings upon the basis that the proposed settlement was not in the best interests of the plaintiff: see Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital [2018] NSWSC 1743.

2. I have now been furnished with additional information, including confidential memoranda from Mr Cranitch SC on behalf of the plaintiff and Mr Windsor SC on behalf of the defendant. The parties now wish me to consider an alternative proposal to settle the proceedings upon the basis that the litigious risks are arguably greater for the plaintiff than was previously indicated and that the proposed settlement amount has been marginally increased.

3. My previous concerns were that the proposed settlement amount did not accurately or fairly reflect the comparative litigious risks alive for each party to the proceedings. I am now informed that the prospect of a difficult factual contest surrounding the timing and content of the presentation to the hospital by Ghina’s parents is greater than previously indicated. For example, the events on 21 May and 22 May 2009 are critical to an assessment of the plaintiff’s case on liability. There is material now available to me to suggest that considerable doubt may attend the version or versions of what happened in this vital period that Ghina’s parents may give in evidence. It is unnecessary for present purposes to say more about that issue.

4. In addition, there will inevitably be a fierce contest with respect to the value of Ghina’s claim. The hospital’s representatives contend that the high water mark of damages is likely to be closer to $7 million than $11 million. I now understand that Ghina’s representatives accept that their previously indicated range of damages may have been unduly optimistic.

5. Thirdly, I have now been provided with information to suggest that Ghina’s family is not well placed financially and currently occupy rented accommodation. There is another disabled child in the family, thus adding to the difficulties that Ghina’s parents encounter when attempting to provide her with adequate care. It is hoped that the trustee of any settled funds might give consideration to the purchase of a house in Ghina’s name in order that her care in particular and the family’s situation in general might thereby be improved in a way that significantly benefits Ghina.

6. Finally, the solicitors for Ghina have indicated that they will limit the solicitor client component of their costs to a maximum amount of $350,000. That notionally increases the amount of the fund by some $150,000. It is, however, important immediately to observe that the so-called increase is only “notional” inasmuch as the trustee is not bound by the terms of the settlement to make any payment in favour of Ghina’s lawyers in respect of costs that are not recovered from the defendant. It would be perfectly in order for the trustee to decline to pay any of the claimed solicitor/client costs from Ghina’s settled fund if in the exercise of the relevant discretion it chose to do so. That is a matter for which Ghina’s lawyers are necessarily and inevitably at risk. It is not appropriate that I express, and I do not express, any concluded view about that matter.

7. Having regard to all of these matters, I consider that the settlement as now formulated is in Ghina’s best interests and I propose to approve it. Accordingly I will make the following orders:

1. I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 22 November 2018 and signed by the legal representatives of the parties.

2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act2005.

3. I make orders in accordance with paragraphs 1 to 5 inclusive of that consent judgment which for identification I will initial, date with today’s date and place with the papers. I note paragraph 6.

4. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct.

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Decision last updated: 22 November 2018