Royce (a pseudonym) v Australian Capital Territory - [2023] ACTSC 69

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Royce (a pseudonym) v Australian Capital Territory
Citation:	[2023] ACTSC 69
Hearing Date:	31 March 2023
DecisionDate:	31 March 2023
Before:	McWilliam AsJ
Decision:	See [23].
Catchwords:	NEGLIGENCE – medical negligence – where plaintiff is a minor – settlement of proceedings – court approval required for settlement involving a minor – whether private trustee should be appointed
Legislation Cited:	Court Procedures Rules (2006) (ACT), r 282 Health and Other Services (Compensation) Act 1995 (Cth) Income Tax Assessment Act 1997 (Cth) National Disability Insurance Scheme Act 2013 (Cth) Public Trustee and Guardian Act (1985) (ACT), s 25 Social Security Act 1991 (Cth)
Cases Cited:	Duffell v Duffell [2015] ACTSC 123 Elliott (by his next friend) v Diener (1978) 21 ACTR 21 Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 Morris v Zanki (1997) 18 WAR 260 Ryan v Larkham [2022] ACTSC 151 Singh (by her next friend Singh) v Calvary Hospital Incorporated [2008] ACTSC 118; 220 FLR 352 Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 Williams v Hoang [2019] ACTSC 144
Parties:	Alex Royce (a pseudonym) by his Litigation Guardian ( Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel D Campbell SC; I Bradfield; B Jullienne ( Plaintiff) M Fordham SC ( Defendant)
Solicitors Blumers Personal Injury Lawyers (Plaintiffs) ACT Government Solicitors (Defendant)
File Number:	SC 399 of 2008

McWilliam AsJ:

The parties to the present litigation have been involved in a claim of medical negligence against the Canberra Hospital. The harrowing events giving rise to the litigation occurred in 2006. The child the subject of the litigation contracted pneumococcal meningitis and septicaemia when he was 3 months old, which changed his life course. The claim concerns the diagnosis and treatment of the illness following the child’s presentation to the hospital in 2006. A breach of duty of care was admitted in respect of certain conduct pleaded but liability overall was denied. The assessment of the child’s development and disabilities was deferred until the child’s late teens.

The parties have now had the opportunity to see how the plaintiff has developed and, following the exchange of numerous medical expert reports, a compromise has been reached between the plaintiff and defendant, in the amount of $7,350,000 plus costs as agreed or assessed.

Because the plaintiff is still an infant (he is now 17), an application in proceeding dated 31 January 2023 has been brought seeking the Court’s approval of the settlement, pursuant to r 282 of the Court Procedures Rules (2006) (ACT).

The Court’s jurisdiction and approach

In deciding whether to approve a settlement involving an infant, the Court is exercising the inherent parens patriae jurisdiction; that is, the protective jurisdiction of the Court: Veal (by his next friend Watson) v Hehir [2018] ACTSC 330 (Veal) at [21], cited more recently in Ryan v Larkham [2022] ACTSC 151 (Ryan).

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: [2023] ACTSC 69
Decision Date

CaseChat Overview and Summary

Alex Royce, a minor, brought a medical negligence claim against the Australian Capital Territory following a severe illness in 2006. After years of litigation, the parties reached a settlement agreement of $7,350,000 plus costs. Given the plaintiff's status as an infant, the Court's approval was required for the settlement under rule 282 of the Court Procedures Rules (ACT). The primary legal issue before the court was whether the settlement amount was in the best interests of the plaintiff, considering the inherent protective jurisdiction of the court. Additionally, the court needed to decide whether a private trustee should manage the settlement funds instead of the Public Trustee.

The court determined that the settlement amount was overwhelmingly in the plaintiff's best interests, given the risk of receiving nothing if the matter proceeded to trial. The court also considered the expert opinions, the litigation guardian's assent, and the settlement's impact on the plaintiff's life. Regarding the appointment of a trustee, the court found that the proposed private trustee, Australian Executor Trustees Ltd (AET), was a suitable choice for managing the settlement funds. The court's decision was based on the proposed trustee's structural and financial security, skills, investment strategies, and the anticipated management expenses. The plaintiff and his parents had also expressed their preference for AET as the trustee.

The court approved the settlement amount and ordered the defendant to pay the judgment sum into court. The sum would then be paid out forthwith to AET, as trustee, to be held in the plaintiff's Compensation Trust. The court also noted the agreement between the parties that AET may transfer the whole or any part of the Trust Fund to a superannuation fund if it is in the plaintiff's interests to do so.

Orders