Gojak v Transport Accident Commission - [2019] NSWSC 1745

Supreme Court

New South Wales

Medium Neutral Citation: Gojak v Transport Accident Commission [2019] NSWSC 1745
Hearing dates: 04 December 2019
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
I make the following orders in accordance with the consent judgment proposed, pursuant to section 76 of the Civil Procedure Act 2005 (NSW):
(1)   I approve the agreement between the parties set out in the consent order which I will seal and place with the papers on the terms set out in the consent orders.
(2)   There will be judgment for the plaintiff in the sum set out in para 2 of the consent judgment. Such sum will be in addition to the funds management fees and costs agreed to as referred to in para 2 of the consent judgment.
(3)   I make Order 3 as set out in the consent orders. I note the parties' agreement in paras 4, 5, 7, and 9. I make the orders proposed in para 6 of the consent orders.
(4)   I also order that the amount of $1,808.95 be deducted from the settlement sum and paid directly to Samantha Gojak in reimbursement of the medical expenses which she has incurred.
(5)   The advice of counsel for the plaintiff will remain on the file in the envelope marked Confidential and access should not be granted to it without leave of the judge of the court and without prior notice to the plaintiff so as to allow him an opportunity to be heard in respect of the application for access.

Catchwords: CIVIL PROCEDURE — approval of settlement — by consent — whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity — settlement approved
Legislation Cited: Civil Liability Act 2002 (NSW), s 15
Civil Procedure Act 2005 (NSW), s 76
Transport Accident Act 1986 (Vic), s 35
Cases Cited: Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
Category: Procedural and other rulings
Parties: Michael Anthony Gojak by his next friend Samantha Gojak (Plaintiff)
Transport Accident Commission (Defendant)
Representation:
Counsel:
Mr A Lakeman (Plaintiff)
Solicitors:
Bertock & Associates (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s): 2018/310096
Publication restriction: None

rEVISED eX TEMPORE Judgment

This is an application by the plaintiff, Michael Anthony Gojak who proceeds by his tutor, Samantha Gojak, for approval of the settlement of his claim against the Transport Accident Commission pursuant to section 76 of the Civil Procedure Act 2005 (NSW).
The plaintiff is currently 12.
As set out in a statement of claim filed on 10 October 2018, he alleges that on 26 November 2015 he sustained injuries when struck by the hydraulic lift mechanism of a truck which was at the time being operated by his brother, who was himself at the time only seven.
The plaintiff pursues proceedings against the Transport Accident Commission on the basis that the accident was a transport accident within the meaning of s 35…

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.

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Details

Case: [2019] NSWSC 1745
Decision Date: 04 December 2019

CaseChat Overview and Summary

In the matter of Gojak v Transport Accident Commission, the respondent sought approval for a settlement agreement reached with the applicant, who was under a legal incapacity. The court was asked to determine whether the settlement was in the best interests of the applicant. The application was made to the Supreme Court of Victoria.

The primary legal issue for the court was to assess whether the settlement proposed by the parties was genuinely in the best interests of the applicant, who was under a legal incapacity. The court needed to consider the terms of the settlement and the evidence presented by both parties to determine if the settlement was fair and beneficial to the applicant. The court also needed to consider the statutory requirements for approving settlements involving individuals under legal incapacity.

The court found that the settlement was fair and reasonable, taking into account the evidence and the interests of the applicant. The court was satisfied that the settlement was in the best interests of the applicant and approved the settlement by consent. The court found that the evidence demonstrated that the settlement was fair, reasonable, and in the best interests of the applicant, who was under a legal incapacity.

The court approved the settlement agreement, confirming that the terms were fair and reasonable and in the best interests of the applicant. The court's approval was based on the evidence presented and the statutory requirements for approving settlements involving individuals under legal incapacity.

Orders