Lloyd v Ohlstein & Ors

[2007] HCATrans 542

[2007] HCATrans 542

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S309 of 2007

B e t w e e n -

ELIZABETH LLOYD AND TIMOTHY LLOYD TRADING AS OTFORD FARM TRAIL RIDES

Appellants

and

TALI OHLSTEIN (BY HER TUTOR ADAM OHLSTEIN)

First Respondent

JARED OHLSTEIN (BY HIS TUTOR ADAM OHLSTEIN)

Second Respondent

VANESSA DUNCAN

Third Respondent

ADAM OHLSTEIN

Fourth Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 SEPTEMBER 2007, AT 9.04 AM

Copyright in the High Court of Australia

__________________

MR S.G. CAMPBELL, SC:   May it please the Court, I appear for the appellant with my learned friend, MR A.R. DAVIS.  (instructed by Curwoods Lawyers)

MR S.M. KETTLE:   May it please your Honour, I appear for the first, second, third and fourth respondents in the matter.  (instructed by Maurice Blackburn Cashman)

HIS HONOUR:   Yes, thank you.

MR KETTLE:   Your Honour, can I say at the outset, I am in an odd position.  I have not had contact with my instructing solicitor this morning.  He has been held up.  I have come up at short notice and I may appear a little unprepared and I do apologise to your Honour for that.

HIS HONOUR:   That is all right.  Let us see how far we can get and if there is any problem, we could adjourn it for however long is necessary.

MR KETTLE:   Yes, I am content with that.  Thank you, your Honour, I am grateful for that.

HIS HONOUR:   I should say that I have read and, subject to any problem, I will treat as having been read in Court the affidavits of Clive James Curwood filed on 6 September 2007 and Carmine Nicholas Santone filed on 12 September 2007.  Neither side has any objection to the other’s affidavit, I presume?

MR CAMPBELL:   No, your Honour.

HIS HONOUR:   Mr Kettle, Mr Campbell rang me up on another matter this morning and I drew his attention, or I flagged the fact that there seemed to be some formal difficulties with the consent orders.

MR KETTLE:   Yes, Mr Campbell raised those matters with me this morning.

HIS HONOUR: I will hand to you full copies of those orders, or the operative parts of them, with changes indicated either by underlining or, where something has been left out, dots. If I can just run through the problems. The most trivial of the problems is that the proposed consent order 4 spoke of “the said Act” when the orders themselves had never referred to the Act. So what I would suggest is it should say “pursuant to section 77(2) of the Civil Procedure Act 2005 (NSW)”. Another minor one is in order 3. I think the Court generally does not like orders that the parties bear their own costs, therefore, it seems appropriate to insert “otherwise no order as to costs” at the end of paragraph 3. The word “to” in the first line of paragraph 3 seems superfluous, so it has been omitted.

That brings us to order 2.  The problem is that the judgment entered in favour of the appellants at first instance was actually only a judgment for costs.  Justice Grove said there should be judgment for the defendants in the action and judgment for the cross‑defendant on the cross‑claim.  I understand the agreement of the parties to be that there should be restored judgment for the defendants in the action with costs.  Is that so?

MR CAMPBELL:   Your Honour, there should be restored judgment in the action to the defendant, but no order as to costs.

HIS HONOUR:   Yes, except for that which is caught in 3.

MR CAMPBELL:   Yes, your Honour.

HIS HONOUR:   All right.  Shall we cross out “with costs” from paragraph 2 then.  I am prepared to approve the settlement and, in terms of the summons, to grant leave to file consent orders in the form of the document that has been received with the words “with costs” taken out of paragraph 2.  Mr Kettle, are you able to proceed on that basis?

MR KETTLE:   I now have my instructing solicitor here, your Honour.

HIS HONOUR:   Can you explain to him what has happened, or should I?

MR KETTLE:   If I could explain to him, thank you.

HIS HONOUR:   If you want an adjournment for a short time, Mr Kettle?

MR KETTLE:   Your Honour, I would be very grateful for that.

HIS HONOUR:   Very well.  Five minutes?

MR KETTLE:   I would require no more than five minutes.

HIS HONOUR:   Very well.

AT 9.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.15 AM:

MR KETTLE:   Thank you, your Honour.  We are very grateful for that time and those amendments, I have obtained instructions on those and we certainly consent to those.  I have discussed with Mr Campbell a further amendment, just to wrap up the proceedings, in order 2.  The proposed amendment is in the third line after the word “appellants” there be inserted the words “and of the third respondent in her capacity as cross‑defendant”.

HIS HONOUR:   Yes, I see.  Would that not call for a further change – you see where it says “namely, that there be judgment for the defendants in the action”, should there not also be inserted the words “and judgment for the cross‑defendant on the cross‑claim”?

MR KETTLE:   Yes, that is correct, your Honour.

HIS HONOUR:   Your change after “in favour of the appellants” was “and of the third respondent in her capacity as cross‑defendant”?

MR KETTLE:   Yes, that is correct, your Honour.

HIS HONOUR:   Very well.  Any other changes?

MR CAMPBELL:   No, your Honour.

HIS HONOUR:   I think in view of this last minute amendment I will just read out these orders which are proposed to be made as consent orders by the Full Court in due course.

MR CAMPBELL:   Thank you, your Honour.

HIS HONOUR:   I will indicate that I will mark this document I have been writing on exhibit A.

EXHIBIT:     EXHIBIT A.....Consent orders with handwritten amendments

HIS HONOUR:   Exhibit A reads as follows:  Consent Orders.

By and with the consent of the parties the Court orders that:

1.Appeal allowed.

2.Orders and findings pronounced by the Supreme Court of New South Wales Court of Appeal on 15 December 2006 be set aside and the orders in favour of the appellants and of the third respondent in her capacity as cross‑defendant, namely, that there be judgment for the defendants in the action and judgment for the cross‑defendant on the cross‑claim given at first instance reinstated.

3.The appellants contribute the sum of $100,000 towards the respondents’ costs of the trial in the Court of Appeal and in the Court, otherwise no order as to costs.

4.That the moneys payable on account of costs pursuant to the proposed settlement be paid into the Supreme Court of New South Wales pursuant to section 77(2) of the Civil Procedure Act 2005 (NSW) and thereafter be paid to the respondents’ solicitor pursuant to section 77(4) of the said Act.

Let me just say this.  On 6 September 2007 the appellants filed a summons against the following background.  The first and second respondents claim damages for injuries suffered in a horse‑riding accident in 1998.  In the Supreme Court of New South Wales Justice Grove gave judgment for the defendants with costs on 22 July 2005 but the Court of Appeal by majority allowed an appeal on 15 December 2006.  On 25 May 2007 special leave to appeal to this Court was granted. 

Subject to the approval of the Court the parties have agreed to settle the appeal by agreeing to orders that it be allowed that the Court of Appeal’s orders be set aside and that the orders of Justice Grove otherwise than in respect of costs be restored. The approval of the Court is necessary under section 76(3) of the Civil Procedure Act 2005 (NSW) because the first and second respondents being minors are persons under legal incapacity within the meaning of section 76(1). In my opinion the settlement should be approved. If the appeal proceeded, there are very real prospects of a far worse outcome for the first and second respondents.

The summons seeks leave to file consent orders in a certain form.  There are problems with that form and after debate the legal representatives of the parties have agreed to a different form of consent orders which I have marked exhibit A and left with the papers.  I make the following orders:

1.Pursuant to section 76(4) of the Civil Procedure Act 2005 (NSW) the Court approves the agreement of the parties for settlement of these proceedings so far as they concern the first and second respondents.

2.The Court grants leave to file consent orders in the form of Exhibit A in the Registry signed by representatives of the parties for pronouncement by the Full Court.

By those last words I mean that there will be signatures at the bottom of the retyped version of Exhibit A.

MR CAMPBELL:   Yes, your Honour.

HIS HONOUR:   Anything else?

MR CAMPBELL:   No further orders sought, may it please the Court.

MR KETTLE:   No, thank you.

HIS HONOUR:   I should congratulate the parties.  It is a very sad case obviously, but the outcome is a sensible one I think.

MR CAMPBELL:   Thank you, your Honour.

AT 9.22 AM THE MATTER WAS CONCLUDED