O'Keeffe v Wyndham City Council - [2010] VSC 394

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

No. 8017 of 2008

LORRAINE ANNE O’KEEFFE	Plaintiff
v
WYNDHAM CITY COUNCIL	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April, 3 and 4 June 2010
DATE OF JUDGMENT:	2 September 2010
CASE MAY BE CITED AS:	O’Keeffe v Wyndham City Council
MEDIUM NEUTRAL CITATION:	[2010] VSC 394

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PERSONAL INJURIES – proceedings settled and orders pronounced – plaintiff’s application to set aside settlement agreement and for the trial to continue – plaintiff claims she was intimidated and coerced into settlement by her solicitors and counsel – no allegations against defendant about the settlement agreement - relevant principles to setting aside settlement agreement – allegations of intimidation and coercion by plaintiff’s lawyers rejected - application refused

COSTS - settlement moneys of $150,000 paid into court by defendant – plaintiff terminates retainer of her solicitors – plaintiff’s former solicitors owed fees and disbursements - application by plaintiff’s former solicitors for payment to them of moneys in court on basis of solicitors’ non possessory lien to fruits of the litigation – application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr P B Jens	Thomson Playford Cutlers
For Clark Toop & Taylor	Mr A D B Ingram and Ms P F Toop	Clark Toop & Taylor

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY............................................................................................ 2

THE EVIDENCE OF MRS O’KEEFFE............................................................................................ 6

THE EVIDENCE OF PAUL JENS................................................................................................. 13

EVIDENCE OF MATTHEW WALSH.......................................................................................... 15

EVIDENCE OF PATRICIA TOOP................................................................................................ 21

THE EVIDENCE OF TRAVIS FEWSTER................................................................................... 25

EVIDENCE OF CRAIG HARRISON SC..................................................................................... 26

THE EVIDENCE OF DESMOND O’KEEFFE............................................................................. 31

OTHER EVIDENCE......................................................................................................................... 32

FINDINGS ON FACTS................................................................................................................... 32

THE DEFENDANT’S CONDUCT................................................................................................ 37

LEGAL PRINCIPLES...................................................................................................................... 37

APPLICATION FOR RELEASE OF MONEYS INTO COURT............................................... 41

HIS HONOUR:

INTRODUCTION AND SUMMARY

The plaintiff, Mrs O’Keeffe applies to set aside the orders made on 23 April 2010 by the consent of the parties dismissing her claim and applies that the matter proceed before me without a jury or otherwise proceed as a cause. By a writ dated 22 August 2008, the plaintiff sought damages against her former employer, the Wyndham City Council (‘the Council”) for injuries she allegedly suffered in the course of her employment, allegedly because she was required to work in a highly stressful environment and was allegedly subjected to bullying and victimisation. The injuries she allegedly suffered included major depressive disorder and panic disorder with anxiety attacks. She also claimed damages for loss of earnings, alleging that by reason of her injuries her capacity for employment had been significantly impaired.

Mrs O’Keeffe was born on 5 July 1953. Mrs O’Keeffe is married with four children and lives in Highton, Geelong. At the time she allegedly sustained the injury, Mrs O’Keefe was employed by the Council as a unit leader in the Family Services Department.

On Wednesday 14 April 2010, the matter came on for trial before me and a jury of six. Mr Harrison SC and…

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: [2010] VSC 394
Decision Date: 2 September 2010

CaseChat Overview and Summary

The case of O’Keeffe v Wyndham City Council involved a plaintiff who sought to set aside a settlement agreement and proceed to trial. She alleged she was coerced and intimidated by her legal representatives into settling the personal injury claim against the defendant. The case was heard in a relevant Australian court, which was tasked with determining the validity of the settlement agreement and the plaintiff's allegations of coercion and intimidation by her legal team.

The court was required to consider whether the settlement agreement was valid and if the plaintiff's claims of coercion and intimidation were substantiated. The central legal issues revolved around the principles governing the setting aside of a settlement agreement and the validity of the plaintiff’s allegations against her legal representatives. The court examined whether the plaintiff’s allegations against her legal team were credible and if there were any grounds to believe the settlement was not entered into voluntarily.

After considering the evidence and arguments presented, the court concluded that the allegations of intimidation and coercion by the plaintiff’s legal representatives were not substantiated. The court found that the plaintiff had not provided sufficient evidence to support her claims, and therefore, the settlement agreement remained valid. Consequently, the plaintiff’s application to set aside the settlement agreement and continue with the trial was refused. The court also addressed the issue of costs, granting the application by the plaintiff's former solicitors for payment of the settlement moneys held in court, based on their non-possessory lien to the fruits of the litigation.

As a result, the settlement moneys of $150,000 held in court were paid to the plaintiff’s former solicitors, who were owed fees and disbursements. The plaintiff had terminated the retainer of her solicitors prior to the payment, but this did not affect the court’s decision to recognise the lien held by the former solicitors.

Orders