McKenzie v Turnbull

[2019] NSWSC 364

Supreme Court

New South Wales

Medium Neutral Citation:

McKenzie v Turnbull [2019] NSWSC 364

Hearing dates:

20 March 2019

Decision date:

05 April 2019

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Settlement of the proceedings commenced by Alison Gai McKenzie, Alexandra Turner and Jack Turner approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

 

(2) Pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW) any settlement monies recovered on behalf of Alexandra Turner and Jack Turner in these proceedings, by their tutor Alison McKenzie, is paid into court pending the application of a financial manager.

 (3)   Upon such settlement monies being paid into Court, the parties have liberty to restore the matter to the list upon 3 days’ notice.

Catchwords:

Civil procedure – approval of settlement of proceedings – proceedings brought on behalf of persons under legal incapacity – whether settlement beneficial to interests – Civil Procedure Act 2005 (NSW), s 76

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Compensation to Relatives Act 1897 (NSW)

Cases Cited:

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
R v Turnbull (No 26) [2016] NSWSC 847

Category:

Principal judgment

Parties:

Alison McKenzie (First Plaintiff)
Alison McKenzie as tutor for Alexandra Turner (Second Plaintiff)
Alison McKenzie as tutor for Jack Turner (Third Plaintiff)
Robeena Jane Turnbull and Grant Wesley Turnbull as Executors for the Estate of the Late Ian Robert Turnbull (Defendants)

Representation:

Counsel:
E Romaniuk SC; L Judd (Plaintiffs)
No appearance (Defendants)

  Solicitors:
Slater and Gordon Lawyers (Plaintiffs)
Cole & Butler Solicitors (Defendants)

File Number(s):

2017/229368

Judgment

1. HIS HONOUR: This is an application for approval of a proposed settlement of proceedings for damages commenced on behalf of two persons under legal incapacity. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW), which provides that, in the case of proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, the person under legal incapacity is not bound by it unless it is approved by the court. In this case, the legal incapacity arises by virtue of the ages of two of the three plaintiffs.

2. The proceedings are brought by Alison McKenzie in her own right and as tutor for each of her children, Jack and Alexandra Turner, against the defendants Robeena Turnbull and Grant Turnbull in their capacity as the executors for the estate of their father, Ian Turnbull.

3. The claim for damages arises from the murder of Ms McKenzie’s husband, Glendon (Glen) Turner, by Ian Turnbull, on 29 July 2014. Mr Turnbull was convicted at trial, and on 23 June 2016 he was sentenced to a term of imprisonment of 35 years with a non-parole period of 24 years. Mr Turnbull was 81 years old at the time of his sentence. He died in custody on 27 March 2017.

4. The circumstances of the murder are set out in the remarks on sentence by his Honour Justice Johnson: R v Turnbull (No 26) [2016] NSWSC 847. Mr Turner was killed in the company of his work colleague, Robert Strange, whilst they were carrying out their duties as compliance officers with the NSW Office of Environment and Heritage. It is unnecessary to recount the circumstances of the killing, other than to note that Mr Turner was killed in a callous manner that “undoubtedly heightened his distress and terror which otherwise arose from the event”: Turnbull (No 26) at [79].

5. Mr Turner and Ms McKenzie had two children, Jack and Alexandra, who were aged 9 and 10 respectively at the time of their father’s death. By a statement of claim filed on 27 July 2017, Ms McKenzie, in her own right and as tutor for each of her children, sought damages in negligence, tort (intentional tort to inflict mental harm) and pursuant to the provisions of the Compensation to Relatives Act 1897 (NSW). Following mediation between the parties, an agreement in principle was reached and subsequently refined (“the agreement”).

6. The court’s function in such a hearing is protective. In Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J observed at [29], referring to the legislative scheme in the Compensation to Relatives Act:

“The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable person: Somerset v Ley [1964] 1 WLR 640; reported sub nom Re Ley’s Trusts [1964] 2 All ER 326.”

7. At the hearing of this matter there was no appearance by the defendants. By consent, their approval of the agreement was conveyed by senior counsel for the plaintiffs.

8. The psychiatric and psychological reports which are tendered before me relate the impact on Ms McKenzie and her children of the news of Mr Turner’s death and suffering as it emerged over the days following the murder, their continuing challenges and their prognosis.

9. As is customary in such matters, the terms of the agreement are set out in a confidential advice by counsel for the plaintiffs, Mr Romaniuk SC, which is attached to an affidavit of Ms McKenzie filed on 26 February 2019. Mr Romaniuk’s advice provides an assessment of the disputed issues and relevant contingencies, the quantum and timetable for payment, an explanation of how the agreed sums would be apportioned between the three plaintiffs, related financial liabilities and other sources of financial relief. It is acknowledged that solicitor/client costs are likely to be significant, but that the portion of settlement monies to be assigned to the children will remain unaffected by these costs.

10. Mr Romaniuk’s opinion is a recommendation to accept the terms of the settlement. His relevant experience includes twenty-five years of practice at the Bar exclusively in personal injury matters. Approval of the agreement by Ms McKenzie is evidenced in her aforementioned affidavit.

11. I am satisfied that the settlement is in the best interests of Jack Turner and Alexandra Turner.

12. Accordingly, I make the following orders.

(1) Settlement of the proceedings commenced by Alison Gai McKenzie, Alexandra Turner and Jack Turner approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

(2) Pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW) any settlement monies recovered on behalf of Alexandra Turner and Jack Turner in these proceedings, by their tutor Alison McKenzie, is paid into court pending the application of a financial manager.

(3)   Upon such settlement monies being paid into Court, the parties have liberty to restore the matter to the list upon 3 days’ notice.

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Decision last updated: 05 April 2019