Tanner v Buddco Pty Limited

[2022] NSWSC 1584

Supreme Court

New South Wales

Medium Neutral Citation:

Tanner v Buddco Pty Limited [2022] NSWSC 1584

Hearing dates:

3 November 2022

Date of orders:

3 November 2022

Decision date:

03 November 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

I grant the adjournment of the approval at the request of the first defendant, and I will list the matter before me for approval of the current proposal, or any other proposal the parties wish to propound, at 9am on Tuesday, 8 November 2022.

Catchwords:

CIVIL PROCEDURE – representative proceedings – settlement or discontinuance – court approval – Compensation to Relatives Act 1897

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW), s 76

Compensation to Relatives Act 1897 (NSW)

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5

Category:

Procedural rulings

Parties:

Rachel Louise Tanner (First Plaintiff)
Harper Craig Tanner by his tutor Rachel Louise Tanner (Second Plaintiff)
Oliver Brian Tanner (Third Plaintiff)
Flynn Anthony Tanner (Fourth Plaintiff)
Buddco Pty Ltd (First Defendant)
DIC Australia Pty Limited (Second Defendant)

Representation:

Counsel:
Ms A Lim for the Plaintiffs
M.T. McCulloch SC First Defendant
Mr J Braithwaite Second Defendant

Solicitors:
Foulsham & Geddes (Plaintiffs)
Moray & Agnew (First Defendant)
Clyde & Co (Second Defendant)

File Number(s):

2019/318150

Judgment (revised)

1. This matter is a compensation to relatives action arising out of a tragic industrial accident, where a father of three was killed after being engaged to service an ink mixing vat, as I understand the machine.  His widow, for herself and on behalf of their three children, has sued the first and second defendants for damages for financial injury under the Compensation to Relatives Act 1897 (NSW) and damages for nervous shock under Pt 3 of the Civil Liability Act 2002 (NSW). The matter is listed for a second mediation on 7 November, and is listed for hearing with an estimate of five days commencing on 14 November. It has been listed before me today as duty judge to consider a settlement arrived at between the plaintiffs and the second defendant.

2. The second defendant is the occupier and operator of the ink manufacturing business. The first defendant is a subcontracting engineering company, responsible for a number of aspects of the operation of the ink mixing vats, amongst other things. 

3. The second defendant and the plaintiffs have arrived at a proposed compromise. Because it affects the rights of the children, who remain minors, the proposal requires approval under s 76 of the Civil Procedure Act 2005 (NSW), to be legally effective.

4. When the matter was called for hearing of the approval application today, Ms Lim of counsel, appeared for the plaintiff; Mr Braithwaite of counsel, for the second defendant; and Mr McCulloch of senior counsel for the first defendant. I took the view that Mr McCulloch was entitled to be heard given his entitlement to protect his client's position in relation to its cross claim under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) as against the second defendant. The second defendant is also maintaining a cross claim against the first defendant, and indeed, relies upon its contract with the first defendant, which it says, entitles it to a full indemnity. That is not a matter which I need to make a decision about for present purposes, because Mr McCulloch has in substance asked that I adjourn this approval process in the light of the mediation on Monday.

5. I have, having heard from all counsel, and noting that Ms Lim and Mr Braithwaite oppose that course, decided that the application should properly be adjourned in the interests of the plaintiffs, who are minors.  It seems to me that the prospect of a favourable settlement in their interests is likely to be enhanced if the matter proceeds to mediation unencumbered by an approved settlement between the plaintiff and the second defendant, to which the first defendant is not a party, and the details of which it may not be fully seised.  Human psychology being what it is, I think I can allow myself to say that the prospect of settlement would be significantly reduced if one defendant is out of it, and the other defendant is unhappy about that going into the mediation on Monday. I think that is just common sense. 

6. I will refrain from making any comment about the strength of the respective cases.  Ms Lim has proffered to me a view about prospects, which, on the basis of the material I have read, I do not regard as unreasonable in any way.  Having said that, and given my limited involvement, and the limited interest I have to advance is that of the children, I am of the view that an adjournment of the approval until Tuesday, will not result in any prejudice or practical difficulty from the point of view of any party, nor do I think it will involve any significant waste of unnecessary costs.

7. I propose to grant the adjournment of the approval at the request of the first defendant, and I will list the matter before me for approval of the current proposal, or any other proposal the parties wish to propound, at 9am on Tuesday, 8 November 2022.  Given the unavailability of Ms Lim and Mr Braithwaite at that time, I allow liberty to apply lest Mr Turnbull of senior counsel, who leads Ms Lim, and Mr Lloyd of senior counsel, who leads Mr Braithwaite, are unavailable at that time, Mr McCulloch having assured me that he is available.  The matter is also listed for mention before Chen J tomorrow by way of directions to confirm compliance, or at least progress, with directions his Honour made last week. At the request of the parties, I will speak to his Honour to ascertain whether he is content for me to adjourn that directions hearing, and I will communicate with counsel one way or another, sometime today, as to his Honour's view.

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Decision last updated: 21 November 2022