Seru v the Commonwealth of Australia by the Department of Immigration and Citizenship

[2017] NSWSC 1062

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Seru v the Commonwealth of Australia by the Department of Immigration and Citizenship [2017] NSWSC 1062
Hearing dates:	14 August 2017
Date of orders:	14 August 2017
Decision date:	14 August 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [9]
Catchwords:	PRACTICE AND PROCEDURE – approval of infant settlement of claims for damages for nervous shock and under Compensation to Relatives Act 1897 (NSW) arising from death of infant’s father at Villawood Detention Centre – appropriate for Court to grant approval   PRACTICE AND PROCEDURE – extent of confidentiality required – limited order
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 76, 77 Compensation to Relatives Act 1897 (NSW)
Category:	Principal judgment
Parties:	Proceedings 2013/283178: Mereani Seru (First Plaintiff) David Rauluni bht Mereani Seru (Second Plaintiff) Epeli Taukei (Third Plaintiff) The Commonwealth of Australia by the Department of Immigration and Citizenship (First Defendant) Serco Australia Pty Ltd ACN 003 677 352 (Second Defendant) International Health and Medical Services Pty Ltd (Third Defendant)   Proceedings 2014/252034: Mereani Seru (Plaintiff) The Commonwealth of Australia by the Department of Immigration and Citizenship (First Defendant) Serco Australia Pty Ltd ACN 003 677 352 (Second Defendant) International Health and Medical Services Pty Ltd (Third Defendant)
Representation:	Counsel: D Higgs SC (Plaintiffs) J Yap (First Defendant) T Nguyen (Second Defendant) I Denham (Third Defendant)   Solicitors: Maurice Blackburn Lawyers (Plaintiffs) Sparke Helmore Lawyers (First Defendant) Lander & Rogers Lawyers (Second Defendant) Moray & Agnew Lawyers (Third Defendant)
File Number(s):	2013/283178; 2014/252034

Judgment

1. By notices of motion in proceedings 2013/283178 (the Nervous Shock Proceedings) and 2014/252034 (the Compensation to Relatives Act Proceedings), Mereani Seru, the first plaintiff, and her son, David Rauluni, the second plaintiff, seek the approval of this Court to a settlement which has been reached between the parties. Ms Seru is also her son’s tutor in the Nervous Shock Proceedings. Approval is required under s 76 of the Civil Procedure Act 2005 (NSW) as the second plaintiff, David, is now thirteen years old and was six years old at the time of the death of his adopted father, Joseph Rauluni (the deceased).

2. The proceedings arise out of the death of the deceased who died in Villawood Detention Centre in circumstances which the plaintiffs allege in the statement of claim resulted, at least in part, negligence of one or other or all of the defendants. The first defendant, the Commonwealth of Australia (the Commonwealth), was responsible for the detention centre. The second defendant, Serco Australia Pty Ltd (Serco), entered into an agreement with the Commonwealth for the management of the centre. The third defendant, International Health and Medical Services Pty Ltd, contracted with the Commonwealth to provide health services to the inmates of such centres.

3. The parties have agreed to settle the matter on terms which are contained in a confidential deed. There are relevantly two claims which concern David Rauluni. In the Compensation to Relatives Act Proceedings, the first plaintiff claims, on her own behalf and on behalf of David Rauluni, damages under the Compensation to Relatives Act 1897 (NSW) and is brought by the first plaintiff on her own behalf and on behalf of the second plaintiff. In the Nervous Shock Proceedings, David Rauluni, through his tutor, claims damages for nervous shock arising from alleged psychiatric harm suffered as a result of the death of his father. I note that the third plaintiff in the Nervous Shock Proceedings, who is no longer a minor, has settled those proceedings against all defendants.

4. As David Rauluni, who was born in 2004, is still a minor, it is necessary for me to consider whether it is appropriate to approve the settlement of the Compensation to Relatives Act Proceedings and the Nervous Shock Proceedings, in so far as they affect him.

5. I have read and considered the three affidavits sworn by Danielle Marie De Paoli sworn 11 August 2017 to which she attaches the pleadings, relevant medical reports and other reports together with the deed of settlement which has been agreed between the parties to be kept confidential. Exhibited to the third of the affidavits sworn by Ms De Paoli on 11 August 2017 is a confidential advice of Mr Higgs SC and Mr Del Monte dated 11 August 2017. In that careful advice, the contents of which I will not disclose in the course of these reasons, the two barristers who were instructed to appear on behalf of the second plaintiff set out their opinions as to the issues in the litigation and the difficulty of predicting the outcome of the litigation. They have also outlined, for the purposes of the application for approval, what they see as difficulties or issues which would arise, in particular, in assessing any damages which the defendants would be liable to pay to the second defendant if liability could be established in either or both of the proceedings brought on his behalf and for his benefit.

6. I am satisfied that the issues outlined in that advice are issues which would potentially affect liability and quantum. Having read the material I am satisfied that it is in the interests of David Rauluni that these proceedings be resolved on the terms set out in the deed of settlement. Accordingly, I am satisfied that it is appropriate that this Court approve the settlement of both proceedings under s 76(2) of the Civil Procedure Act.

7. The parties have provided me with draft consent orders in each matter. With one exception, I consider that it is appropriate to make those orders in terms of the draft. I have reservations about draft order 3 which reads as follows:

"That the Consent Orders, Deed of Settlement and Release, Court File and other evidence be kept confidential and is not to be disclosed to any other parties .”

8. Having considered the material and heard from counsel I consider that the draft order 3 is too broad and would have an adverse impact on the principles of open justice. Having heard from the parties, I propose that draft order 3 be amended so as to confine the documents to be kept confidential to: the deed of settlement and release itself and to paragraphs [21] to [23] and [25] of Ms De Paoli's longer two affidavits of 11 August 2017 and to the whole of the third affidavit of Ms De Paoli to which is exhibited the confidential advice referred to above, which is exhibited to that affidavit and marked DMD1.

9. The orders I make in proceedings 2013/283178 are as follows:

1. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW) the Court approves the agreement between the parties to settle that part of the claim in those proceedings related to the second plaintiff by payment of the amounts set out in clauses 1(f) and 1(g) of the confidential Deed of Settlement and Release dated 21 December 2016.

2. Pursuant to s 77(3) of the Civil Procedure Act 2005 the Court directs the amount payable pursuant to order 1 be paid to the New South Wales Trustee and Guardian.

3.   That the following documents be kept confidential and are not to be disclosed to any other parties:

1. the Deed of Settlement and Release dated 21 December 2016;

2. Paragraphs 21 to 23 and 25 of each of the two longer affidavits sworn by Ms De Paoli on 11 August 2017;

3. The whole of the shortest affidavit of Ms De Paoli sworn 11 August 2017 to which the confidential advice of the plaintiffs' legal advisers is exhibited and marked DMD-1.

4.   The proceedings otherwise be dismissed with no order as to costs.

5.   All cross claims be dismissed with no order as to costs.

In proceedings 2014/252034 I make the following orders:

1. Pursuant to s 76 of the Civil Procedure Act 2005 the Court approves the agreement between the parties to settle that part of the claim in these proceedings relating to the first-named plaintiff's son, Master David Rauluni, by payment of the amount set out in clause 1(c) of the confidential Deed of Settlement and Release dated 21 December 2016

2. Pursuant to s 77(3) of the Civil Procedure Act 2005 the Court directs the amount payable pursuant to order 1 be paid to the New South Wales Trustee and Guardian.

3.   That the following documents be kept confidential and are not to be disclosed to any other parties:

4. the Deed of Settlement and Release dated 21 December 2016;

5. Paragraphs 21 to 23 and 25 of the two longer affidavits sworn by Ms De Paoli on 11 August 2017;

6. The whole of the shortest affidavit of Ms De Paoli sworn 11 August 2017 to which the confidential advice of the plaintiffs' legal advisers is exhibited and marked DMD-1.

4.   The proceedings otherwise be dismissed with no order as to costs.

5.   All cross claims be dismissed with no order as to costs.

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Amendments

17 August 2017 - Paragraph [9] 1 amended

Decision last updated: 17 August 2017