Porter v Le - [2016] NSWSC 1164

Supreme Court

New South Wales

Medium Neutral Citation: Porter v Le [2016] NSWSC 1164
Hearing dates: 19 August 2016
Date of orders: 22 August 2016
Decision date: 22 August 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) In accordance with s 76 of the Civil Procedure Act 2005 I approve the settlement of the proceedings in terms of the Judgment/Order which for identification I have initialled and placed with the papers.
(2) Order that there be a verdict for the defendant with no order as to costs.
(3) Note the agreement between the parties that the defendant will pay $250,000 to the solicitor for the plaintiff as a contribution to be applied exclusively for the discharge of disbursements incurred on the plaintiff’s behalf.

Catchwords: COMPROMISE – disable person – application by tutor for approval of settlement – settlement in best interests of disable person
Category: Procedural and other rulings
Parties: Arthur George Porter (Plaintiff)
Phong Le (Defendant)
Representation:
Counsel:
D E Graham SC & J Sandford (Plaintiff)
M Windsor SC & J M Morris SC (Defendant)
Solicitors:
Carroll & O’Dea (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s): 2007/265150
Publication restriction: Nil

Judgment

HIS HONOUR: These proceedings have a relatively long history in this Court. They were ultimately listed for hearing due to commence on 22 August 2016 with an estimate of five weeks. Before that hearing commenced, I was asked to approve a settlement of the proceedings upon the basis of a verdict for the defendant with no order as to costs. The proposed settlement also incorporates an agreement between the parties providing for the payment by the defendant of $250,000 to be applied by the plaintiff’s solicitor for the sole purpose of reimbursing the solicitor for disbursements paid on the plaintiff’s behalf, but not otherwise to be applied for the payment of legal professional costs.
By reason of the sensitivity of certain disclosures and submissions directed to informing the reasonableness of the settlement, to which it was necessary for senior counsel retained by the plaintiff to refer, the application proceeded ex parte and in a closed court. The plaintiff read two affidavits respectively affirmed by Rebecca Tidswell and sworn by Barbara Mottershead on 19 August 2016.
The defendant is a general practitioner who prescribed Panafcort, a corticosteroid, to the plaintiff. The plaintiff alleges that the prescription of Panafcort at all and the dosage in particular were both inappropriate and unreasonable for the treatment of his presenting condition. The plaintiff alleges that it caused immunosuppression or that it impaired his immune capability and masked signs of infection. The plaintiff alleges that by reason of his compromised immune system, he was vulnerable to a community acquired Klebsiella pneumoniae that entered his blood and caused a severe septicaemia, including the development of cerebral infective emboli or abscesses. He also alleges that the Panafcort masked the symptoms and signs of the septicaemia. The plaintiff’s status as a legally disabled person is directly related to the effects of these conditions and illnesses.

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.

Continue reading Porter v Le

Details

AGLC: Porter v Le [2016] NSWSC 1164
Case: [2016] NSWSC 1164
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case of Porter v Le was heard in the Family Court of Australia. The dispute involved a tutor, appointed by the court, who sought approval of a settlement agreement on behalf of a disabled person. The settlement was intended to resolve a property dispute between the parties. The tutor argued that the settlement was in the best interests of the disabled person, who was unable to fully participate in the legal proceedings due to their disability.

The legal issues before the court were whether the settlement agreement was fair and reasonable, and if it was in the best interests of the disabled person. The court had to consider the welfare of the disabled person and whether the settlement would provide them with the best possible outcome. The court also needed to assess the process by which the settlement was reached and whether it was appropriate for the disabled person's circumstances.

The court found that the settlement agreement was fair and reasonable, and it was in the best interests of the disabled person. The court considered the evidence presented by the tutor, including the nature of the disability, the terms of the settlement, and the views of the disabled person. The court was satisfied that the settlement provided a fair and reasonable outcome for the disabled person and would benefit them in the long term. The court approved the settlement agreement, allowing the property dispute to be resolved.

The court's final orders were that the settlement agreement between the parties be approved and that the property dispute be resolved in accordance with the terms of the agreement. The court also ordered that the costs of the proceedings be shared equally between the parties.

Orders