| 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…
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- Case
- [2010] VSC 394
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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