Meki Jnr Puletua by his Tutor Sosefina Puletua v Sydney Childrens Hospital

[2024] NSWSC 64

Supreme Court

New South Wales

Medium Neutral Citation:	Meki Jnr Puletua by his Tutor Sosefina Puletua v Sydney Childrens Hospital [2024] NSWSC 64
Hearing dates:	14 January 2024
Date of orders:	14 January 2024
Decision date:	14 January 2024
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See [10]
Catchwords:	CIVIL PROCEDURE – Civil Procedure Act 2005 (NSW) – application for approval of settlement of proceedings commenced by or on behalf of person under legal incapacity – resiling from settlement citing a material change in circumstances – whether lawful rescission or repudiation – power of court to determine questions about compromise and settlement
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 73; 76
Category:	Procedural rulings
Parties:	Meki Jnr Puletua by his Tutor Sosefina Puletua (Plaintiff) Sydney Childrens Hospital (Defendant)
Representation:	Counsel: D Graham via AVL (Plaintiff) B Bradley via AVL (Defendant) Solicitors: Maurice Blackburn Lawyers (Plaintiff) Hicksons Lawyers (Defendant)
File Number(s):	2022/303997

JUDGMENT

1. I listed this matter before me today, Sunday 14 January 2024, at the request of the plaintiff's legal advisers for the consideration of the approval of a settlement under s 76 of the Civil Procedure Act 2005 (NSW). Without going through all of the details, the agreement to settle the matter is contained in terms of settlement dated 14 January 2024 signed by the solicitors for each of the plaintiff and the defendant. It was a term of that settlement that the plaintiff by his tutor would apply for the approval of the Court.

2. The matter had been listed for approval before Garling J on Friday next week, however the plaintiff, who is an infant aged three and suffered catastrophic injuries the subject of these proceedings during a surgical procedure when a nine-month-old, has been in hospital since 1 January, apparently, receiving treatment. Part of his medical picture of some complexity, to understate it, is renal failure.

3. He is currently under the care of a paediatric nephrologist in the defendant's hospital. Although his condition had achieved a level of stability where the specialist was considering discharging him from hospital, apparently his condition has deteriorated overnight and he is now in a critical condition and there is a high likelihood, according to the opinion of the nephrologist relayed to me by Mr Graham of senior counsel who appears for the plaintiff, that he may die in the next 24 to 48 hours. Obviously, there is a prospect that he will pull though.

4. However, when I was approached by the plaintiff's solicitor to list the matter, I agreed given what seemed to me to be the obvious urgency of the case. As I have explained during the course of the hearing before me this afternoon, apart from any other consideration, including the demands of common humanity, it seemed to me that it was in the interests of the administration of justice that if the Court had an opportunity to deal with the matter during the plaintiff's lifetime, it should take that opportunity and, at least according to my judgment, the community would expect nothing less.

5. In any event, all of this is happening on a Sunday during the long vacation, which puts everybody under stress and strain, but the parties are to be congratulated because each side was able to organise themselves to appear before me by audio-visual link this afternoon, ultimately at 1.45 PM. However, it also became apparent before the commencement of the hearing that the defendant's solicitors and counsel had received instructions from the defendant to object to the matter proceeding before me this afternoon.

6. During the initial phase of the hearing, I attempted to tease out what the basis of that objection, and Mr Bradley explained that this was regarded as a material change of circumstances. However, through further engagement and a Socratic process, it appears now that the defendant resiles from the agreement contained in the terms of settlement and does not intend to honour it. It takes the view, first, that there is no agreement unless and until approval, which has not yet occurred. Secondly, if there is an agreement of any type, it is entitled to resile from it in view of what it regards as a material change in circumstances.

7. It seems to me as I said during the course of my discussion with counsel, that the conduct of the defendant is either a lawful rescission or a repudiation, in which latter event the plaintiff is entitled to take steps to enforce the agreement. Despite my own doubts about the defendant's entitlement to resile from the agreement lawfully, it seems to me that that proposition can only be appropriately tested by, given the defendant's clear statement of position, the plaintiff taking steps under s 73 of the Civil Procedure Act to enforce the agreement for compromise.

8. I should say by way of interpolation that, as Mr Graham of senior counsel argued, life expectancy was always a central issue as to quantum in this case, and much evidence was exchanged in relation to it. The fact that the plaintiff's condition might fluctuate, even grievously, does not seem obviously to bespeak a change in circumstances, material or otherwise. Rather, it seems to me to be a continuation of the uncertainty about his condition and his life expectancy which has beset his medical condition since he received his surgical injury. In any event, I will move on.

9. It seems inevitable that the defendant of course must be given some time to respond to an application to enforce the judgment, and I am grateful to the parties that they are able to deal with the matter expeditiously, and I will make some directions in relation to that at the conclusion of these reasons. As I have discussed with counsel, I will draw the matter to Garling J's attention. I will not vacate the listing before him, but it will be a matter for his Honour as to whether the plaintiff's application can be dealt with on Friday or whether it will need to be adjourned until a date after the commencement of the next law term on 29 January 2024.

10. For these reasons I have declined to consider the application for approval. I make the following directions:

1. The plaintiff is to file and serve a notice of motion seeking relief under s 73 of the Civil Procedure Act 2005 (NSW) by close of business on Monday 15 January 2024;

2. The defendant is to file and serve a notice of opposition setting out its contentions in relation to its entitlement to resile from the agreement by close of business on Wednesday, 17 January 2024;

3. Liberty to approach the chambers of Garling J in relation to the listing of the matter on 19 January 2024.

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Decision last updated: 06 February 2024