Tegonikos v Bexley RSL and Community Club Limited

[2016] NSWSC 1740

Supreme Court

New South Wales

Medium Neutral Citation:	Tegonikos v Bexley RSL and Community Club Limited [2016] NSWSC 1740
Hearing dates:	6 December 2016
Date of orders:	07 December 2016
Decision date:	07 December 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Settlement approved.
Catchwords:	PROCEDURE – settlement approval – consent orders made
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357
Category:	Procedural and other rulings
Parties:	Karina Viole Tegonikos by her Tutor Emmanuel Karamihas (Plaintiff) Bexley RSL and Community Club Limited (ACN 011 062 380) (Defendant)
Representation:	Counsel: Mr P Mooney SC with Mr S Maybury (Plaintiff) Mr W Fitzsimmons (Defendant)   Solicitors: Konstan Lawyers (Plaintiff) Clyde & Co (Defendant)
File Number(s):	2013/194929
Publication restriction:	Nil

Judgment

1. An application has been made under s 76 of the Civil Procedure Act 2005 (NSW), which empowers Court to approve settlements arrived at in cases where a person is under legal incapacity, as it is common ground the plaintiff is, given her medical conditions.

2. As explained by Rothman J in Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 at [29], the Court’s jurisdiction to approve a settlement is protective and “the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity”. That is a matter for the Court to determine.

3. The proceedings were brought in negligence, as the result of injuries suffered by the plaintiff when aged six years, when struck by a door, following which she developed epilepsy and other complications; conditions which she continues to suffer now, being aged 24.

4. There is affidavit evidence from the plaintiff’s tutor, Mr Karamihas, as to the circumstances in which he came to accept that appointment, given her medical conditions and their consequences; and the advice received as to the risks of the litigation, given the issues lying between the parties, including in relation to the plaintiff's ongoing need for care and earning capacity. He also there explained what anticipated assessed costs would be, and what was proposed as to investment and management of the settlement funds, by a trustee and approved finance manager.

5. In the plaintiff’s circumstances, that will involve proceedings in this Court in the protective list. The affidavit evidence of the plaintiff’s solicitor, Mr Konstandinidis, to which was annexed various medical reports and opinions, explained the medical advice received from a paediatric neurologist, which had led to the appointment of Mr Karamihas as tutor, as well as the costs and disbursements which the plaintiff had incurred in the proceedings; statutory deductions which would have to be made from the settlement sum; and the resulting funds available to be invested for the plaintiff's benefit.

6. The confidential advice on settlement given by the plaintiff’s counsel, Mr Mooney SC and Mr Maybury, is also in evidence. There explained were the detailed reasons for which acceptance of the defendant’s offer was advised.

7. The terms of the proposed consent judgment contemplate that costs of funds management would also be agreed. At the hearing, how that agreement had been implemented by the appointment of a joint expert, whose opinion the parties had agreed to accept, was also explained.

8. Having considered all that I have discussed, I am satisfied that the Court’s approval of the settlement must be given. There is here a real risk that at trial, the plaintiff will not succeed on some of what is in issue. When that is considered together with what such a trial would involve, when compared to the obvious benefits which will flow to her from the proceeds of the settlement, I am satisfied that it must be concluded that the settlement is beneficial to the plaintiff and so should be approved by the Court.

**********

Decision last updated: 07 December 2016