Maez by his tutor Maez v Corbett - [2015] NSWSC 102

Supreme Court

New South Wales

Medium Neutral Citation: Maez by his tutor Maez v Corbett [2015] NSWSC 102
Hearing dates: 5 - 6 February 2015
Date of orders: 23 February 2015
Decision date: 23 February 2015
Jurisdiction: Common Law
Before: Button J
Decision:
See paragraph 23.

Catchwords: PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77(3)
Motor Accidents Compensation Act 1999 (NSW), ss 83, 131
Health and Other Services (Compensation) Act 1995 (Cth), ss 21, 22(1)(a)
Health and Other Services (Compensation) Care Charge Act 1995 (Cth)
Cases Cited: Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298
Permanent Trustees v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1
Category: Principal judgment
Parties: Frank Maez (Plaintiff)
Karen Corbett (Defendant)
Representation:
Counsel:
P Frame (Plaintiff)
Solicitors:
Lex Fori Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)

File Number(s): 2013/341338

Judgment

This is an application for approval of a settlement brought pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (the Act). Approval is required because the plaintiff, who sues through his tutor, his father, was born on 10 October 2005, and accordingly is nine years of age.
Counsel for the plaintiff read two affidavits in support of the application. The first was sworn by his instructing solicitor, and sets out a very useful summary of the medical evidence, and annexes all relevant reports. It also explains the basis upon which the solicitor has come to the view that the settlement is appropriate in the interests of his client.
The second affidavit was sworn by the father of the plaintiff, and expresses his own understanding of the basis upon which the legal advisers of his son have advised that the settlement is an appropriate one. The tutor expresses his own satisfaction with the course proposed.
The third and final document placed before me was a confidential exhibit that constitutes a brief outline of the basis upon which counsel for the plaintiff is of the view that the proposed settlement should be accepted by his client.
The background of the application may be shortly stated. At about 3:30 pm on 10 January 2013, the plaintiff, then aged six years and some months, was playing on the footpath of a suburban street. As children are wont to do, he impetuously ran onto the road and was struck by a car. An ambulance was promptly called, and he was taken to hospital. The plaintiff had suffered serious injuries to his teeth, a number of lacerations to his face, an undisplaced fracture of the upper spine, and an undisplaced fracture of the left elbow.
The plaintiff remained in an intensive care unit for one day, and thereafter in hospital for six weeks. An operation was performed on 11 January 2012 with…

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: [2015] NSWSC 102
Decision Date: 23 February 2015

CaseChat Overview and Summary

The case of Maez by his tutor Maez v Corbett was heard by the Supreme Court of Victoria. The plaintiff, Maez, was represented by his tutor in a personal injury proceeding against Corbett. The dispute centred around the approval of a proposed settlement of the personal injury proceedings, which were initiated on behalf of Maez who, at the time, was under legal incapacity.

The primary legal issue before the court was to determine whether the proposed settlement of the personal injury proceedings was in the best interests of Maez. This involved examining the terms of the settlement and assessing whether they were fair and reasonable, taking into account Maez's current and future needs, as well as any potential benefits and detriments of the settlement.

The court found that the proposed settlement was indeed in Maez's best interests. It was observed that the settlement provided for his future care and financial needs, and that the terms were fair and reasonable. The court was satisfied that the settlement would provide for Maez's welfare and that it was in his best interests to approve the settlement. The court subsequently approved the settlement, allowing the personal injury proceedings to be concluded on the proposed terms.

Orders