State of NSW v Karibian

[2005] NSWSC 1357

CITATION:	State of NSW v Karibian [2005] NSWSC 1357
HEARING DATE(S):	15 & 16 December 2005
JUDGMENT DATE :	16 December 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Contract entered. Standard terms not incorporated. Specific performance ordered.

CATCHWORDS:	CONTRACTS – contract for settlement of litigation – whether contract entered – whether Crown’s standard terms for settlement of District Court personal injuries litigation incorporated – whether appropriate to order specific performance of agreement – no questions of principle
LEGISLATION CITED:	Mental Health Act 1990 Police Legislation Amendment (Civil Liability) Act 2003
PARTIES:	State of New South Wales - Plaintiff Guy Karibian - Defendant
FILE NUMBER(S):	SC 2391/05
COUNSEL:	R Lancaster; M McFadden - Plaintiff G Karibian, in person - Defendant
SOLICITORS:	Crown Solicitor's Office - Plaintiff G Karibian, in person - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 16 DECEMBER 2005

2391/05 STATE OF NEW SOUTH WALES v GUY KARIBIAN

JUDGMENT – (Ex Tempore)

1 HIS HONOUR: This is an application for specific performance of an alleged contract to settle litigation. There are three central issues in the case: First, whether there was a contract to settle the litigation at all; second, if there was, what were its terms; third, if there was, is it the sort of contract that should be specifically performed.

2 The litigation in question is litigation which Mr Guy Karibian brought in the District Court by a statement of claim filed on 7 May 2002. The defendants in that litigation, at least at the outset, were three in number. There were two police officers and, as well, there was the State of New South Wales.

3 The allegations in the statement of claim concerned events which Mr Karibian alleged took place on 20 May 1999. The thrust of his statement of claim is that, on that day, he was, in effect, tricked by the two police officers who were named as defendants into accompanying them to the Cumberland Hospital and that, once he was there, those police officers made various untrue representations to the hospital authorities and presented the hospital authorities with a request for his detention under section 24 of the Mental Health Act1990, upon which the hospital authorities acted. He says he was detained for of the order of 168 hours. On his case, that detention was wrongful in itself, and also caused him significant consequential damage. The police officers were alleged to have committed various torts, and the State was alleged to have a vicarious liability for their actions.

4 Before the action was launched, Mr Karibian had received an advice from Mr Martin SC, suggesting that, if liability was established, very significant damages would be recoverable.

5 On 23 April 2003 Carroll & O’Dea, Solicitors, wrote to Mr Karibian setting out the terms on which they were prepared to act for him, and he accepted those terms fairly soon afterwards. Their retainer was one which involved acting for him in the action for damages against the two police officers and the State of New South Wales.

6 The Police Legislation Amendment (Civil Liability) Act2003 came into operation on 1 January 2004. It declared a police officer to be an employee of the Crown, and imposed various restrictions on the way in which an allegation that a person who was a police officer at the time of carrying out conduct which was complained about could be sued in tort in connection with that conduct. Section 9B of the Act prohibited the making of a police tort claim against the police officer concerned, but permitted the bringing of that claim directly against the Crown. It was only if the Crown denied vicarious liability that the police officers could be joined under section 9B(3) of the Act. Because of section 9G, it extended to torts allegedly committed by police officers before the commencement of the provisions I have just described.

7 The Police Department gave instructions to the Crown Solicitor’s Office, once this legislation was in operation, to review all files on foot where allegations of tort were made against police officers, and to try to get the agreement of the plaintiffs in those cases to the removal of the police officers from the proceedings.

8 In this particular case, on 8 March 2004, the State accepted vicarious liability for the two police officers who were sued, and on 12 March 2004 Coorey DCJ made an order dismissing the statement of claim against the first and second defendants. On 22 March 2004 an amended statement of claim was filed by Mr Karibian’s solicitors, which named the State as the only defendant, and asserted its vicarious liability for the actions of the two police officers.

9 The case was set down for hearing in the District Court commencing on Monday, 20 September 2004.

10 Before the case began, namely on 6 August 2005, Mr Karibian’s solicitors obtained a joint advice from Mr Taylor SC and Mr Dominic Williams, barrister, on the likely outcome of the litigation and the quantum range.

11 At the District Court proceedings, Mr Karibian was represented by Mr Des Kennedy SC and Mr Dominic Williams. Ms Rossana Tagliapietra of Carroll & O’Dea was the solicitor who acted as instructing solicitor.

12 The Crown was represented in the case by Mr Menzies QC and Ms Webster. Mr Brett Davies of the Crown Solicitor’s Office acted as the instructing solicitor during the trial. The trial was held before Murray ADCJ.

13 I have heard evidence in this case from Mr Menzies, from Ms Tagliapietra, from Mr Davies, and from Mr Karibian. The first three of these witnesses were called by the Crown.

14 Mr Menzies’ recollection of all of the detail of the settlement discussions is not complete, but I accept his evidence about the structure of the events which happened. That evidence is consistent with evidence given by Mr Davies and Ms Tagliapietra.

15 At around 5.30pm on 22 September, Mr Menzies phoned Mr Kennedy, and told him that he was instructed to make an offer of settlement in the amount of $75,000, plus costs. The substance of the conversation was no more extensive than that. As commonly happens when counsel are negotiating settlement of a matter, the proposals which they put one to the other outline the commercial bare bones of a settlement.

16 Mr Menzies enquired whether Mr Kennedy would get some instructions and call him back, to which Mr Kennedy agreed.

17 Evidently, Mr Kennedy passed on the substance of the conversation he had had to Mr Williams, because Mr Williams rang Ms Tagliapietra that afternoon and reported on the offer having been made.

18 On the morning of 23 September 2004 the Court did not resume at the appointed time. One or other of the barristers sent a message to the Judge asking for time, and that request was granted.

19 Ms Tagliapietra gives evidence, which I accept, that, after the matter was stood down, Mr Kennedy returned to a conference room, of which, it seems, Mr Karibian's team had the use, and told Mr Karibian of the offer of $75,000, plus costs. This offer was one which Mr Karibian did not regard as in the slightest attractive. He had a view that his case was worth far, far more than that, and told Mr Kennedy so.

20 Ms Tagliapietra explains what happened next:

“18. Upon Mr Karibian saying that, Mr Kennedy, Mr Williams and myself, in turn or together, explained to Mr Karibian that his expectations were high and reminded him that the $75,000 was within the range of damages as set out in Mr Taylor's advice. I then took the 6 August advice of Mr Taylor from my file and re-examined it and showed it to Mr Karibian. I recall saying words to the effect that '$75,000 comes within the range of damages you might expect to recover in the proceedings as detailed in that advice'.
19. When acting for a plaintiff, my normal practice is to advise the client as to the range of damages that might reasonably be recovered on his or her claim, that is, based on all the evidence, what the client can reasonably expect to be awarded should he or she succeed in establishing liability. I follow this practice with every client. I am confident that I advised Mr Karibian, on more than one occasion, and both prior to and during the hearing of the District Court proceedings, of the value of his claim, based on the advice of Mr Taylor dated 6 August 2004.
20. I recall during these discussions, the following conversation, or words to that effect, occurred:
Mr Kennedy SC: That doesn't mean that [the $75,000] is the final offer. That's just the start. We can go back with a higher offer.
Mr Karibian: Okay. How much will we go back with?
Mr Kennedy SC: $150,000 plus costs.
Mr Karibian: Okay, I am happy with that, that's fine.
Ms Tagliapietra: You will not get $150,000 but that offer is a way of negotiating a suitable settlement figure. If you can get $100,000 plus costs, would you be happy with that?
Mr Karibian: Yes.
Ms Tagliapietra: Okay. We'll go back with an offer of $150,000 plus costs.”

21 An offer of $150,000 plus costs was conveyed by Mr Kennedy to Mr Menzies, and Mr Menzies in turn passed the offer on to Mr Davies.

22 The lines of communication between the two legal camps during that day ran so that communication took place from Senior Counsel to Senior Counsel. Mr Menzies at no time was privy to what took place between Mr Karibian and his legal advisers.

23 It is unnecessary to recount each move in the negotiations. At one stage, the State was willing to make an offer of $100,000, which Mr Menzies conveyed to Mr Kennedy, and Mr Kennedy in turn passed on. When that offer was passed on to Mr Karibian, Ms Tagliapietra formed the view that he would be satisfied with a settlement for $100,000, plus costs. She wrote out the text of a document entitled “Authority to Settle”, which, at the time she wrote it out, had the following text:

“I, Guy Karibian, authorise you to settle my claim against the State of New South Wales in the sum of $100,000 plus costs.
I have read the joint Advice of Dominic Williams and Peter Taylor SC, and understand the difficulties in my case regarding liability [, and damages].
I understand that Peter Taylor SC is of the opinion that having regard to those difficulties my case is worth between $10,000 and $80,000 plus costs.
I understand that my solicitors will allow me the total amount of $100,000 and that they and my current barristers Des Kennedy SC and Dominic Williams will take whatever is allowed on assessment.
I understand that I will receive reimbursement of any disbursements that I have paid myself that may be allowed on assessment.
I understand that there are no medical expenses to be paid and no money to be refunded to Medicare.
I understand that there may be an amount owing to Centrelink as I have been in receipt of benefits on and off since the tort occurred.
I estimate that I have received approximately $10,000 since the tort in Newstart benefits and that this or any other amount which may be more, would be deducted from my settlement monies and that my solicitors are not responsible for any refund that may be due.
Knowing all of this I instruct you to settle my claim for the sum of $100,000.00 plus costs.
I understand that my solicitors will not seek to recover any unrecovered costs and disbursements from me.”

The words “and damage” at the end of the second paragraph were not there when she first wrote it, but were added later.

24 She prepared that document in the presence of Mr Kennedy, Mr Williams and Mr Karibian. The portions of the document which deal with legal fees reflected an arrangement which she had come to with Mr Kennedy and Mr Williams. The statement that no medical expenses were to be paid and no money refunded to Medicare was based upon what Mr Karibian had told her – she had made no enquiries of her own on those topics.

25 When the document was still in this draft form, Mr Kennedy asked Mr Karibian whether he wanted them to try and get some more money. He explained that there was a risk that going back for more might make the entire settlement fall apart, but that he did not think that the State would take that attitude. Mr Karibian instructed him to make a counter-offer of $115,000 plus costs.

26 There is some discrepancy in the evidence about which side it is which first put to the other the figure of $115,000, and it is not necessary for me to resolve that discrepancy. What matters, for present purposes, is that I accept Ms Tagliapietra’s evidence that Mr Karibian said words to the effect that he was happy for Mr Kennedy to make a counter-offer of $115,000 plus costs, and that there was communication between Mr Kennedy and Mr Menzies about such an offer. I also accept that Mr Kennedy and Mr Menzies orally agreed upon that figure.

27 Throughout these discussions, the settlement terms which were being talked about were described with no more complexity than I have recounted in this judgment.

28 After Mr Kennedy and Mr Menzies had talked, Mr Kennedy told Ms Tagliapietra that “We have agreed to settle the matter for $115,000 plus costs”, and Mr Menzies conveyed a similar message to Mr Davies. Thereupon, Ms Tagliapietra amended the draft authority to settle document. She crossed out the figure of “$100,000”, where it first appears, and wrote in “$115,000”. She did the same in the second last paragraph. She did not cross out the figure of $100,000 which appears in the fourth paragraph.

29 Mr Williams then read out the entire contents of the authority to settle document to Mr Karibian, in the presence of Ms Tagliapietra and Mr Kennedy. Mr Williams explained the effect of the content of each paragraph to Mr Karibian, and Mr Karibian did not raise any objection to the contents. There was, however, a question which Mr Karibian asked, as follows:

“Mr Karibian: So I'll get the whole $115,000?
Mr Williams: There is probably something to be taken out for social security and that will come out of the $115,000. But otherwise you will get it all.”

30 At that stage Ms Tagliapietra handed Mr Karibian the authority to settle. She gives evidence that she saw him sign each page, and that she witnessed and signed each page. Orally, she gave evidence of the amendments which she had made being initialled by Mr Karibian.

31 In his oral evidence, Mr Karibian denied that he had signed the authority to settle. It is convenient at this stage to deal with some aspects of Mr Karibian's evidence. He gives evidence that at no time did he authorise any of his lawyers to actually go ahead and settle the case. His evidence is that he said to them words to the effect of “make your offer but I want to see something in writing before I decide”, or “show me the paperwork and I'll consider it”.

32 He says that, in the course of his discussions that day, he did not speak to his barristers at all, that he was very well aware of correct legal protocol, and that he spoke only to his solicitor, who in turn spoke to Mr Kennedy. He is a man who is qualified as a civil engineer and has had experience in significant construction projects. He gives evidence that he is very meticulous about contractual arrangements, and would not become bound to any contract until he had seen the actual documentation.

33 There are signatures and initials on the authority to settle document which have a fairly strong graphical resemblance to signatures on Mr Karibian’s affidavit which are undoubtedly Mr Karibian’s own. However, he does not accept that the writing which looks rather like his signature and initials on that document is really his.

34 He claims to be supported in that view of the document by some evidence from Ms Tagliapietra. He cross-examined her at transcript page 56 concerning the authority to settle document, and the relevant questions went:

“Q. You wrote this yourself?
A. Yes, I did.
Q. Did anybody else write on this?
A. Yes, they did.
Q. Who was that?
A. Dominic Williams.
Q. Nobody else?
A. I can't remember.”

35 The reference to Dominic Williams writing on it is to the fact that the words "and damages" at the end of the second paragraph are written in a different pen, and a manifestly different hand, to the rest of the document. It is those words which were added to the document by Mr Williams, after Ms Tagliapietra first composed it.

36 In the context in which Ms Tagliapietra gave this evidence, she was clearly talking about the text of the document, not the signatures or initials on it.

37 The allegation that the signature on the document was not Mr Karibian’s is one which was made for the first time in evidence at the hearing.

38 I have earlier mentioned that an advice was obtained from Mr Taylor of Queen’s Counsel and Mr Williams at the beginning of August. In oral evidence Mr Karibian said that the upper limit of the quantum range in that advice was $800,000. He was taken to a document, which is a fax which he wrote on 7 October 2004 (annexure I to the affidavit of Ms Tagliapietra), in which, in the course of recounting to Carroll & O’Dea some of his contentions about the history of the matter, he referred to the advice of Mr Taylor as being one which indicated a quantum from O dollars to $80,000. In cross-examination, however, he said that that was a typographical error.

39 I note that the authority to settle document itself refers to the range of Mr Taylor’s possible quantum advice as having an upper limit of $80,000 plus costs.

40 The litigation which Mr Karibian was bringing was litigation which may well not have been an open and shut case so far as liability is concerned. The merits of the case were not gone into in any detail before me, and I make that observation about liability on no other basis than what is inherently likely from the nature of the claims being made. It is likely that, in any experienced common law lawyer's assessment of a settlement offer, at least some element of compromise concerning liability would need to be factored in, as well as the likely range of quantum, if liability were to be established.

41 Given the nature of the case which Mr Karibian was bringing, and given that the settlement of it for $115,000 would involve a considerable lowering of his expectations concerning the case, there is an inherent unlikelihood that a solicitor would allow counsel to discuss with counsel for the other side an offer of settlement of $115,000 unless she herself had written instructions permitting that course.

42 I am not satisfied that Mr Karibian's recollection of the discussions with his lawyers that day is altogether reliable, and Ms Tagliapietra struck me as an impressive witness. I prefer her evidence on this topic, both because of her seeming to be the more impressive witness, and also because it better accords with the probabilities.

43 At around 12.30pm, Ms Tagliapietra handed Mr Karibian an “Authority to Receive” document. It was a typed document which had some blanks in it, which were filled out in handwriting. Mr Karibian agrees that he signed that document. There are initials, which bear a graphic similarity to his initials, which appear on it, but he denies that they are his. I prefer the evidence of Ms Tagliapietra that the initials are indeed his. The text of the document is:

“I Guy Karibian authorise and direct you to forward all settlement/verdict moneys and costs as assessed or agreed due to me to my solicitors Carroll & O’Dea 19th Level, 111 Elizabeth Street Sydney whose receipt shall be a sufficient discharge of the Defendant's liability to me herein."

44 At this time, there were no written terms of settlement available for execution.

45 The legal representatives of the parties, and Mr Karibian, then returned to the courtroom. Mr Karibian sat in the first or second row of the seating in the body of the Court. Ms Tagliapietra handed to Mr Davies in the courtroom, before the Judge came back on the Bench, the authority to receive document.

46 A little before 1 o’clock, the Judge came back on the Bench. The transcript of that occasion shows that Mr Menzies informed his Honour that the case had been settled. He asked the Judge to order that the exhibit be returned, and said that the terms of settlement were being prepared, and that it was the intention to simply file them in the Registry in the course of the afternoon, if that were convenient. The Judge was not prepared to follow that course, and required to actually see the terms himself. It was foreshadowed that the terms would be faxed to him in the course of the afternoon. The Judge said that he congratulated the parties on resolving “this difficult matter, and I congratulate in particular the plaintiff coming to settle the matter”.

47 At about 1.10pm Ms Tagliapietra received a telephone call from the receptionist at the firm of solicitors where she worked. The receptionist reported that Mr Karibian was there, wanted to speak to her urgently, was quite upset, and that he kept on saying “the settlement is off, the settlement is off”. Ms Tagliapietra did not endeavour to contact Mr Karibian immediately; she tried to contact Mr Kennedy and Mr Williams first. She was able to arrange to meet them outside the courtroom.

48 Before the Court had adjourned for lunch, she had left a trolley there, which contained all the files and materials that were being used in the hearing. When she returned to the trolley, she saw that numerous post-it notes, with the words “settlement is off” written on each of them, had been placed on the trolley. She told Mr Davies of this apparent change in Mr Karibian's position.

49 Meanwhile, Mr Davies had been preparing terms of settlement. The terms of settlement which he prepared took the following form:

“1. Verdict for the plaintiff in the sum of $115,000 plus costs as agreed or assessed.
2. Costs to include Counsel's fees on a two Counsel basis.
3. The defendant shall be at liberty to deduct and pay from the said sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Workers' Compensation or Social Services or Medicare Benefits or Nursing Home Benefits or otherwise concerning which any demand or notice has been or may be served on or given to the defendant and also any moneys paid or payable pursuant to the Health and Other Services (Compensation) Act 1995 or the Health and Other Services (Compensation) Care Charges Act 1995 .
4. The plaintiff undertakes and agrees to pay out of the said sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Workers' Compensation or Social Services or pursuant to the Health and Other Services (Compensation) Act 1995 or otherwise which may not have been deducted by the defendant pursuant to paragraph 3 hereof and also to pay to the parties entitled all outstanding medical, hospital, ambulance and other out of pocket expenses.
5. No interest shall be payable on the judgment herein if said be paid within 28 days after:
(a) receipt of filed Terms of Settlement; or
(b) within 28 days after the receipt of an Authority to Receive satisfactory to the defendant; or
(d) within 28 days after receipt by the defendant of a notice from the Managing Director of the Health Insurance Commission under Section 24 or 25 of the Health and Other Services (Compensation) Act 1995 ; or
(c) within 28 days after receipt by the defendant of a notice concerning any charge repayable to the Department of Social Security (Centrelink);
whichever is the later.
6. The plaintiff acknowledges that in accordance with Section 22 of the Health and Other Services (Compensation) Act 1995 , the plaintiff has been informed of a possible liability to pay amounts under the said Act or under the Health and Other Services (Compensation) Care Charges Act 1995 .
7. These Terms not to be disclosed other than as necessary to fulfil the requirements of Centrelink and the Health and Other Services (Compensation) Act 1995 .”

50 At some stage on the 23rd or 24th of September, Ms Tagliapietra received a copy of those terms of settlement from Mr Davies.

51 On Friday, 24 September, there was a conference between Mr Kennedy, Mr Williams, Mr Karibian and Ms Tagliapietra at the District Court before the Court resumed. The lawyers informed Mr Karibian that the matter had been settled.

52 The case was still listed before the Judge that day. When Court resumed, Mr Kennedy informed the Court that:

“Mr Menzies was correct in informing the Court that the matter has settled. A problem has arisen in respect of the execution of the terms. I seek to stand the matter over for one week in order to explain the settlement to the plaintiff.”

53 The evidence contains a letter from Mr Williams to Carroll & O'Dea of 27 September 2004. It records that a settlement in the sum of $115,000, plus costs, was reached with the defendant on Thursday, 23 September. Mr Williams’ letter says:

“… In view of the problems with Mr Karibian I wish to place on record that it was pointed out to Mr Karibian that the settlement figure was in excess of the range of compensation suggested in the Joint Advice of Mr Peter Taylor SC and myself dated 6 August 2004. This had previously been given to Mr Karibian as the basis of my continued representation of him on your instructions.”

54 Mr Kennedy likewise wrote to Carroll & O Dea, in a letter which is in evidence, on 27 September 2004. It records that:

“… on Thursday morning, as a result of negotiations between myself and Mr Menzies, the matter was resolved on the basis of a judgment in the sum of $115,000 plus costs to include costs of two Counsel. This settlement was reached as a result of the specific instructions of the plaintiff in a written form and signed by him.
Unfortunately, he apparently had a change of heart during the course of the afternoon when the terms were to be forwarded to the Court and has refused to give instructions to sign the Terms of Settlement.
There was no doubt in my mind that an effective settlement was reached between the plaintiff and the defendant...”

55 No objection was taken to either of those letters being received in evidence. However, given the circumstances in which each of those letters was produced, I am not prepared, with all respect to their authors, to place evidentiary weight upon them. If necessary, I would use them for one limited purpose only, and that is to negative any inference which might otherwise be available concerning what the authors may have said had they been called. However, on the evidence as a whole, I am not of the view that there is a basis for inferring that the evidence of Mr Kennedy and Mr Williams would have been adverse to the Crown, if they had been called.

56 I am satisfied that Mr Kennedy had express authority to make an offer to settle for $115,000, plus costs, and that, pursuant to that authority, he orally agreed with Mr Menzies to settle on that basis. Even though, concerning some types of contracts like construction contracts, it is customary for contracts to be in writing, there is no legal necessity for a contract to settle litigation to be in writing. Indeed, contracts to settle litigation are frequently arrived at orally. In the present case, a contract to settle the litigation was effectively arrived at orally.

57 That leads to the question of what precisely are its terms, beyond that the litigation would be settled for $115,000, plus costs. The evidence establishes that the additional terms which were included in Mr Davies draft terms of settlement, that is, paragraphs 2 to 7 inclusive, are terms which are standard terms, which the Crown uses. As well, the evidence establishes that both Mr Menzies and Mr Kennedy were experienced practitioners in personal injury litigation and were well familiar with those standard terms. I would be prepared to conclude that it would not have come as the slightest surprise to Mr Karibian’s legal advisers to see terms of settlement presented in the form in which they were actually presented. However, that is not enough to conclude that clauses 2 to 7 were actually terms of the agreement which was arrived at. The terms were not even incorporated in the discussion by reference, as might happen if one counsel had said to the other that the offer was on the Crown’s standard terms. The evidence does not, in my view, go sufficiently far to establish that there is an invariable custom of including those terms of settlement in District Court actions, whether by litigants generally, or, indeed, by the Crown. Even though the terms are the Crown’s standard terms, the evidence does not say that the Crown never ever changes them. Under those circumstances, I am not satisfied that clauses 2 to 7 of the draft terms of settlement are part of the terms which have been agreed.

58 It well may be that the Crown has legal obligations to deduct sums pursuant to the Commonwealth legislation referred to in clause 3 of the draft terms. If it has that obligation, then that obligation will operate by force of the law which establishes it, regardless of any agreement.

59 So far I have reached my conclusions on the basis of the express authority of Mr Kennedy. However, if I were to be wrong in that conclusion, it is quite clear that counsel instructed to act in litigation has ostensible authority to settle that litigation, at least when the terms of settlement do not contain anything collateral to the subject matter of the litigation. There was nothing collateral in the terms which were discussed here. Thus, Mr Kennedy’s ostensible authority provides a separate basis for reaching the conclusion about the settlement having been effective.

60 The Crown seeks an order for specific performance of the contract. Specific performance is a discretionary remedy. In the present case, Mr Karibian has told me that there are many things which he would want to have included in a settlement. He wants retractions of what he sees as various slights which he has undergone, and apologies concerning them. There are entries relating to him on the COPS database, which he wants to have corrected. As well, he tells me that he is aware of some impropriety in the police force, which he wishes to have remedied. He says that, without those matters being included, nothing like his real dispute would be resolved.

61 While those submissions were made to me, the evidence does not establish an evidentiary basis for them. In those circumstances, I cannot take those considerations into account as a discretionary reason for refusing specific performance. The monetary result arrived at by the settlement agreement is less than some of the advice which he had received about likely quantum, but the advice he received about quantum, from different barristers, appears to have varied remarkably. In light of that, and when the question of the extent of compromise on liability which would truly be applicable to a proper assessment of the settlement has not been gone into, I do not regard it as having been established that the settlement is an unfair one, or that enforcement of it would amount to a hardship. On the other hand, there is a fairly strong public policy in favour of settlement of litigation being given effect to, once an agreement has been reached, as a way of bringing controversy to an end. In all the circumstances, it is appropriate to make an order for specific performance.

62 I declare that on 23 September 2004, the plaintiff and the defendant agreed to compromise proceedings, which were commenced by the defendant against the plaintiff, in the District Court of New South Wales, being proceedings 3537/02, on terms:

(a) that there be a verdict for Mr Karibian.

(b) that the State of New South Wales pay Mr Karibian the sum of $115,000, and

(c) that the State of New South Wales pay Mr Karibian's legal costs as agreed or assessed.

I order that the defendant specifically perform that agreement.

I order that the defendant sign, or procure to be signed, by any solicitor on the record for him in District Court proceedings 3537/02, terms of settlement which give effect to the agreement declared to have been reached.

I reserve to each party liberty to apply for any directions which might be needed concerning the working through of the order for specific performance by notice of motion returnable before me at 9.30am on a date to be fixed by arrangement with my Associate.

* * * * * * * * * *

63 Each party applies for costs. Mr Lancaster for the Crown applies on the basis that his side has, in substance, won. Mr Karibian submits that the Crown came to Court seeking enforcement of an agreement which incorporated all the terms of the draft terms of settlement, and that it failed in that respect.

64 In my view, the substantial victory has gone to the plaintiff in the case. The extent to which the plaintiff's case has not succeeded is not such as to prevent the usual principle that costs follow the event from operating. I order the defendant to pay the plaintiff’s costs of the proceedings.

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