Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset

[2016] NSWSC 353

Supreme Court

New South Wales

Medium Neutral Citation:	Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset [2016] NSWSC 353
Hearing dates:	22 March 2016
Date of orders:	22 March 2016
Decision date:	22 March 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	By consent: (1)Grant Leave to Appeal (2)Direct the Appellant to file a Notice of Appeal in accordance with the amended draft contained in the White Folder within 7 days of today and otherwise dispense with the requirement as to service. (3)Appeal allowed in part (4)Set aside order 1 pronounced toby me on 29th may 2015 and instead enter the following order: (a)The questions ordered to be determined separately under r 28.2 Uniform Civil Procedures Rules 2005 (NSW) are answered as follows: Q1 Were the plaintiff’s injuries caused by the negligence of the defendant? A. Yes. Q2 Was the plaintiff guilty of contributory negligence? A Yes to the extent of 20 per cent. (5)Confirm order 2 below that under r 28.3 judgment for the plaintiff for damages to be assessed. (6)Confirm order 3 below. (7)The appellant to pay the respondent’s costs of the appeal as agreed or assessed on the ordinary basis
Catchwords:	PROCEDURE– person under legal incapacity- approval of settlement of liability issues- consent judgments and orders – where strongly contended appeal
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Dietz v Lennig Chemicals Pty Ltd [1969] 1 AC 170 Elderfield v Transport Accident Commission (2010) 55 MVR 206 Fox v Percy [2003] HCA 22; 214 CLR 118 Permanent Trustee Co Ltd v Mills [2007] NSWSC 336; 71 NSWLR 1 Rhodes v Swithenbank (1889) 22 QBD 577 Warren v Coombes [1979] HCA 9; 142 CLR 531
Category:	Procedural and other rulings
Parties:	Charmayne Louise Goldsmith by her Tutor (The New South Wales Trustee and Guardian) (Plaintiff) Luke Bisset (Defendant)
Representation:	Counsel: J Maconachie QC with P Regattieri (Plaintiff) Mr R Stitt QC with Mr Ryan (Defendant) Solicitors: Carol & O’Dea (Plaintiff); Sparke Helmore Lawyers (Defendant)
File Number(s):	2015/308218

ex tempore judgment (revised)

1. I record for the purpose of these reasons that I am sitting as an Additional Judge of Appeal for the purpose of these proceedings by certificate of the Chief Justice dated today. This is an appeal in a motor accidents matter which the parties have settled.

2. The plaintiff is a person under a legal incapacity, and the NSW Trustee & Guardian is acting as her tutor. The settlement therefore requires the approval of the Court in accordance with the provisions of s 76 of the Civil Procedure Act 2005 (NSW). For the purpose of considering whether approval should be given, and if so, for entering consequential orders, I am therefore exercising the powers of a single judge of appeal under s 46 of the Supreme Court Act 1970 (NSW).

3. The unusual circumstances with which this matter comes before me is that I was the trial judge sitting in the Common Law Division who heard the matter and made orders on 29 May 2015. I am tempted to say that the correctness of my decision is probably bolstered by the consideration that not only was there an appeal, but I understand a very significant and strong notice of contention was also filed on behalf of the plaintiff.

4. The case was a very difficult one and involved closely fought questions of primary fact. Because the trial before me was nearly ten years after the events (for reasons not the fault of any of the legal practitioners involved in this case) I sought in my judgment to rely upon the dictum in the plurality judgment of the High Court of Australia in Fox v Percy [2003] HCA 22; 214 CLR 118 requiring me to look for objectively established facts, contemporaneous accounts and the apparent logic of events to found the primary facts.

5. Inevitably, I also relied upon my own impressions to some extent including the impressions I formed at the view that was conducted during the trial. As any experienced lawyer would understand, in such a case the appeal would be determined largely in accordance with Warren v Coombes [1979] HCA 9; 142 CLR 531 principles. The Court of Appeal itself would be free to draw inferences, and to the extent to which those inferences differed from the inferences I drew as trial judge, it would be under a duty to unhesitatingly act upon its own view of the proper inferences to be drawn from the established primary facts. Moreover, my decision in part depended upon a contentious interpretation of the provisions of s 138 of the Motor Accidents Compensation Act 1999 (NSW).

6. For those two reasons, I think it can be said that the outcome of the appeal was very much open to argument particularly given, if I may say so with the greatest of respect, that the parties were respectively represented by the two most eminent silks practising in this area.

7. Mr Maconachie QC in his very helpful document dated 21 March 2016 reminds me that the Court's function in an application for approval is essentially protective, and I am required to scrutinise the terms of the compromise to protect the interests of the plaintiff: Dietz v Lennig Chemicals Pty Ltd [1969] 1 AC 170 at 189.

8. The essential question is whether the compromise is beneficial to the interests of the plaintiff (the respondent to the application for leave to appeal): Permanent Trustee Co Ltd v Mills [2007] NSWSC 336; 71 NSWLR 1 (Hammerschlag J). And I must be affirmatively satisfied that the settlement proposed is for the respondent's benefit, otherwise, my approval must be withheld; conversely, to justify withholding approval I must be satisfied that there is a sufficiently large prospect of the plaintiff or respondent obtaining a more favourable judgment, comfortably outweighing the value of the certainty reflected in the proposed settlement or compromise. See Rhodes v Swithenbank (1889) 22 QBD 577 at 578, and Elderfield v Transport Accident Commission (2010) 55 MVR 206.

9. At [15], Mr Maconachie has set out succinctly, with respect, but pointedly nonetheless, the nature of the issues that would be agitated on appeal. One need only consider the eight points summarised there to appreciate that in the particular circumstances of the case, as I have briefly outlined at the commencement of these reasons, the outcome of the appeal viewed prospectively is very uncertain. It must be said, to adopt the vernacular favoured by practising lawyers, it could obviously go either way.

10. That being so, I am of the view that the proposed settlement is certainly for the plaintiff’s benefit. And that the certainty of outcome it provides greatly outweighs the uncertainty of the outcome of the appeal. I have no doubt that leave to appeal would be granted, and that the question would be determined as on a full appeal.

11. That being so, I am very well satisfied that the proposed settlement is beneficial to the interests of the respondent, and I without hesitation approve of the settlement under the provisions of s 76(3) of the Civil Procedure Act 2005. I should add that in coming to this conclusion, although I have brought my own independent judgment to bear, one would long hesitate before withholding approval from a settlement arrived at by parties represented by Mr Stitt QC and Mr Maconachie QC.

12. Given that conclusion, I make the following orders:

1. Grant Leave to Appeal

2. Direct the Appellant to file a Notice of Appeal in accordance with the amended draft contained in the White Folder within 7 days of today and otherwise dispense with the requirement as to service.

3. Appeal allowed in part

4. Set aside order 1 pronounced toby me on 29th may 2015 and instead enter the following order:

1. The questions ordered to be determined separately under r 28.2 Uniform Civil Procedures Rules 2005 (NSW) are answered as follows:

Q1 Were the plaintiff’s injuries caused by the negligence of the defendant?

A. Yes.

Q2 Was the plaintiff guilty of contributory negligence?

A Yes to the extent of 20 per cent.

5. Confirm order 2 below that under r 28.3 judgment for the plaintiff for damages to be assessed.

6. Confirm order 3 below.

7. The appellant to pay the respondent’s costs of the appeal as agreed or assessed on the ordinary basis

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Decision last updated: 31 March 2016