Thornley v Mitchell

[2004] NSWSC 688

CITATION:	Thornley v Mitchell [2004] NSWSC 688
HEARING DATE(S):	28 August 2002, 29 August 2002, 5 February 2003
JUDGMENT DATE:	23 August 2004
JUDGMENT OF:	Dowd J at 1
DECISION:	Summons dismissed; Plaintiff to pay costs
CATCHWORDS:	Application to set aside judgment after approval by court - next friend - mistake
LEGISLATION CITED:	Damages (Infants & Persons of Unsound Mind) Act 1929 Limitation Act 1969
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529 Blomley v Ryan (1954-1956) 99 CLR 362 Brooke v Lord Mostyn 2 DE G.J. & S. 372 Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 DJL v The Central Authority (2001) 201 CLR 226 Harvey v Phillips (1956) 95 CLR 235 Huddersfield Banking Co Limited v Henry Lister & Son Limited [1895] 2 Ch 273 In the Marriage of Hannah & Tozer 13 Fam LR 531 Meehan v Glazier Holdings Ltd (2002) 54 NSWLR 146 Permanent Trustee Co (Canberra Ltd) v Stocks & Holdings 28 FLR 195 SRA v Codelfa Pty Ltd (1981) 150 CLR 29 Taylor v Johnson (1982-1983) 151 CLR 432 Taylor v Taylor (1975) Court of Appeal Wentworth v Rogers (1987) 8 NSWLR 388 Yore Contracts Pty Limited v Holcom Pty Limited Zanatta v McCleary [1976] 1 NSWLR 231 Commercial Division, unreported
PARTIES :	Edward Thornley Sylvia Mitchell
FILE NUMBER(S):	SC 11283/93
COUNSEL:	Plaintiff: G Hall, P Gormly Defendant: M Neil QC, I McGillicudy
SOLICITORS:	Plaintiff: Mssr Segal Litton & Chilton Defendants - J Crestani

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Cantor M

- 37 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Dowd J

Monday 23 August 2004

011283/93 Edward J Thornley v Sylvia D Mitchell & Anor

JUDGMENT

1 DOWD J: This is an application to set aside a judgment of a Master of this Court, entered in 1974 following an application by both parties as a result of the settlement of the action (the “Original Proceedings”). The Defendants contend that the Court has no jurisdiction to revisit the judgment entered in the Original Proceedings, while the Plaintiff argues that reasons exist for setting aside that judgment.

The Plaintiff’s Claim

2 This action commenced by way of a Summons dated 19 March 1993 (the “Summons Proceedings”) seeking declarations and orders that the judgment of Cantor M (as he then was) of 19 December 1974 be set aside. The Original proceedings were in relation to an action brought by a tutor on behalf of the Plaintiff arising from a motor vehicle accident on 26 October 1965 when the plaintiff was aged 5 years and 11 months.

3 The declarations and orders sought by the plaintiff in the Summons Proceedings are:

“…1. [a] Declaration that the Terms of Settlement filed and the Orders made in proceedings 3390 of 1968 were executed and made in consequence of a mutual mistake regarding the nature and extent of the plaintiff’s injuries on the part of the plaintiff, by his then legal advisers and next friend, the defendant and the Court and its approval of the settlement.

2. [a] Declaration that the Court in proceedings 3390 of 1968 and the parties proceed (sic) with the settlement upon a false basis that there was no organic brain damage from which the plaintiff would continue to suffer.

3. [a] Declaration that the parties in proceedings 3390 of 1968 failed to present any relevant medical evidence to the Court for the purpose of reconciling the contradictory views expressed by Dr Rail and Dr Williams on the question of whether or not there were persisting signs of brain damage and whether brain damage had occurred to the plaintiff.

4. [a] Declaration that the Court in proceedings 3390 of 1968 failed to require reconciliation of the views of Drs Rail and Williams before proceeding to approve the Terms of Settlement and enter Judgement.

5. [a] Declaration that Samuel Thornley, the next friend appoint [sic] for the purposes of commencing and continuing proceedings 3390 of 1968 on behalf of the plaintiff was unfit to give instructions on settlement and to represent the plaintiff of the hearing of the approval by the Court.

6. [a] Declaration that the Plaintiff and his then advisers, in proceedings 3390 of 1968 entered into the Terms of Settlement and asked the Court to approve the Terms and make consequential Orders under a serious mistake concerning a basic fact in the case, namely that the plaintiff did not sustain brain damage.

7. [a] Declaration that it would be unfair for the plaintiff to be held to the settlement in proceedings 3390 of 1968 made when he was at the relevant time subject to a disability, by reason of the matter proceeding when all parties and the Court were under a misapprehension concerning a basic fact in the case, namely that the plaintiff did not sustain brain damage.

8. [an] Order that judgement entered in proceedings 3390 of 1968 be set aside.

9. Such further or other Orders as the Court sees fit…”

4 The Plaintiff filed an Amended Summons in October 1997, with additions to prayers 2 and 5 which provided some minor changes only.

The Defendants’ Claim

5 In response, the Defendants by Notice of Claim filed 23 July 2003 contended that:

“…1…if there is any jurisdiction in the Court to hear and determine the claim of the Plaintiff herein then any such claim has been extinguished by the operation of the Limitation Act 1969 and any amendments thereto or alternatively is barred or extinguished in equity by a limitation period analogous to those contained in the said Limitation Act .

2. Further without limiting any defence of the Defendants to the claim the Defendants will reply upon laches and delay on the part of the Plaintiff in bringing the instant claim…”.

6 The Defendants also filed a Notice of Motion on 9 September 1993 (the “1993 Motion”), seeking orders that in the event of a finding of jurisdiction, the Court should permanently stay proceedings or strike the proceedings out and that the matter proceed by further pleadings or a new Statement of Claim. By a further Motion filed 14 December 2001 (the “2001 Motion”), the Defendants sought orders to have the jurisdictional question heard and heard concurrently with the 1993 Motion, an application which was granted by orders made on 18 February 2002 by Grove J.

Issues to be considered by the Court

7 The Plaintiff’s position is that the Court has jurisdiction to set aside the judgment in the Original Proceedings, and that the evidentiary burden has been met and orders should be made as sought in the Summons Proceedings. Further, should the Court determine that it has jurisdiction, no order should be made to stay the Original Proceedings.

8 In determining the matters in these Summons Proceedings, the issues to be addressed include determining whether the Court has jurisdiction to set aside the judgment made in the Cantor M in the Original Proceedings and if the Court has jurisdiction, determine the grounds upon which the judgment might be set aside, if at all and identify the evidence in support of the application to set aside. Further, as has been raised by the Defendants, the Court must also consider whether the setting aside of the judgment should not be made and whether the Plaintiff is statute barred from seeking to do so, and further, whether the Court might order that a permanent stay be made against the setting aside of the judgment in the Original Proceedings.

Details of the Original Proceedings

9 On 26 October 1965, the Plaintiff, then aged 5 years and 11 months, was struck by the car of the Defendant Sylvia Mitchell as he ran across the road. The car was being driven by a Brian McCabe who was subsequently the subject of criminal proceedings for various driving and licence matters relating to the accident.

10 The Original Proceedings were commenced against the Defendants in 1968, with the appointment of the Plaintiff’s father Samuel Thornley as his next friend, in particular by a consent of Mr Thornley snr to act in that capacity signed by him and dated 1 May 1968.

11 As was noted by Finlay J. in the judgment of this Court delivered 9 September 1993 in the Summons Proceedings, approval was given by Cantor M on 19 December 1974 of the settlement of the Original Proceedings pursuant to the Damages (Infants & Persons of Unsound Mind) Act 1929 and judgment entered by the Court on that date; however the Plaintiff contended before his Honour in September 1993 that he was “…under some mental disability…”, the Plaintiff did not bring the Summons Proceedings pursuant to “…any order made in the Protective jurisdiction…”. I further note that the Plaintiff has continued the Summons Proceedings with no suggestion that he lacks legal capacity to do so and with no representative, whether by an Order in the Protective jurisdiction or otherwise, appearing on his behalf.

12 It is submitted on behalf of the Plaintiff that the Plaintiff’s father and next friend in the Original proceedings, Mr Samuel Thornley, suffered from certain physical and mental health related problems, sufficient to raise the argument that at the time he authorised and consented to the compromise of the Original Proceedings on behalf of his son, he lacked the legal capacity to do so.

Evidence Relating to the Accident

13 The Public Solicitor’s file reveals a note of the evidence of a passer-by who witnessed the incident on 26 October 1965, which witness, a Mr Foster, is now deceased. The note is in the following terms:

“…Child ran out in front of the car.
Doesn’t know if there were any parked cars.
Thought there were but couldn’t be sure.
He was travelling in a car in the opposite direction
The defendant’s car was travelling between 25 m.p.h. & 30 m.p.h.
Not a busy road
Brakes on the defendant’s car were faulty.
Car hit the child before the brakes became operative.
42 feet to stop (Police measured this).
Thinks brakes were only operating on two wheels.

Mr Foster thinks the driver would have had the greatest difficulty in avoiding the child even if his brakes had been perfect. The child just ran straight in front of the car.
Mr Foster is willing to give evidence if necessary.”

14 Similarly, the Public Solicitor noted the observations of the Plaintiff’s father, Samuel Thornley:

“…Mr Thornley is sure no parked cars were at or near the scene; and that the Defendant had a clear view of the footpath and the child before the accident. ..”

15 In the course of police investigations Mr McCabe, the driver of the vehicle, made the following statements which might be considered as admissions:

“…I saw a small boy running along the kerb of the footpath. He didn’t appear to be about to run across the road and I didn’t take any more notice of him. Suddenly I saw a figure running across the footpath and I didn’t see him until he was in front of me. I applied the brakes and he fell into the roadway…”.

16 Mr McCabe pleaded guilty to the charge of negligent driving, as well as to charges of Fraudulently Using a Licence and Driving Without a Licence. He was penalised with a sentence imposed of 2 days’ hard labour and a fine of $50.00. Verdict having been entered in the Original Proceedings in favour of the Plaintiff, the liability of the Defendants was established.

17 Steps taken by the solicitors for the Defendants in the Summons Proceedings have resulted in no contact with Mr McCabe, other than ascertaining his last known employment in Alexandria in 1994. Although investigators were able to speak with Sylvia Mitchell, she has had no contact with Mr McCabe for many years. The police officer who investigated the matter was contacted, but advised (as he had in 2001 for a previous enquiry) that he had no recollection of the accident.

Injuries

18 At the time of the accident on 26 October 1965 the Plaintiff was knocked unconscious and suffered injuries, including abrasions to the face and forehead. He was admitted to hospital and on initial review, no skull fractures were detected. The Plaintiff regained consciousness on 2 November 1965, some 7 days later. As a result of the accident the Plaintiff suffered significant loss of sight in one eye and at the time he was released from the hospital on 18 November 1965, his disabilities included weakness in his leg and abnormal neurological signs relating to his eyes.

19 Further evidence available showed that the Plaintiff thereafter suffered from severe headaches, including migraines and was said to have developed behavioural problems. There is an issue however over whether the Plaintiff has suffered organic brain damage. The Plaintiff continues to have emotional difficulties and he finds it hard to sleep at night. His sight did not improve after the accident. The Plaintiff’s brother William Thornley who was about eight years older than the Plaintiff gave evidence that the Plaintiff had always been an angry person, although I take that to be evidence of William’s recollections of the Plaintiff principally after the accident.

20 The Plaintiff attended school before the accident and continued there after the accident, leaving school in 1974 without completing a formal school leaving qualifications, the school having provided him with a “special exemption” to allow him to leave school at a younger age. At about this time, the Plaintiff was having great trouble concentrating and found it impossible to study. The Plaintiff stated in evidence:

“…I was unable to cope with school. I could not complete essays and my inability to structure an essay or report or to study alone made it difficult to keep up with my school work…”.

21 The Plaintiff held a variety of jobs from a time after he left school until 1984, none of which he held for a substantial period of time. In a letter in evidence before the Court, one employer reported in relation to the Plaintiff that:

“…He relayed incorrect information and omitted to collect money… and had continual errors in assessing claims. His concentration was poor and at times he was quite vague. He would leave the office numerous times a day for no reason and when queried his excuses were not legitimate…”.

22 The Plaintiff in evidence said that when working he tended to make mistakes and that he had emotional problems. When he did make mistakes he would get angry. The Plaintiff also reported that he found it hard to sit down for lengthy periods of time without becoming restless.

23 Following some care provided to the Plaintiff at Wollongong Hospital as an outpatient of the Psychiatric Ward, on 15 November 1984 the Plaintiff was granted a disability pension and has been unable to work since and continues in his life to struggle with some of the circumstances in which he finds himself.

24 As the hearing before me is the determination of the jurisdiction of the Court to set aside the Original Proceedings, I do not make any determination as to the nature and extent of the Plaintiff’s injuries said to have arisen from the accident, including the issue as to whether the Plaintiff suffers from “organic brain damage”. I have nonetheless reviewed the comprehensive medical material made available to me at the hearing, including the medical reports which form part of Exhibit C tendered on behalf of the Plaintiff and the other medical reports of Dr Jolly and Mr Cipriani (referred to more fully below). It is clear that the Plaintiff has undertaken many difficult steps in his life, some with more success than others, and I see him as nothing less than genuine in his manner and the explanation of his feelings and disabilities.

25 However, I do note that there was an apparent conflict in the medical evidence regarding the condition and disabilities of the Plaintiff as tendered to the Court at the hearing of the settlement of the Original Proceedings. Principally, this conflict arise from the evidence of the opinion of Psychiatrist Dr Ross Williams in his report of 28 May 1971 in which he advises:

“…When I saw him in March, 1967 I made the following notes.
‘His restless, distractible, impatient behaviour with poor emotional control and lack of social discretion indicates a very strong probability of organic cerebral disorder following his head injury on 26.10.65…”.

26 Conversely in his report of 4 February 1966, Neurologist Dr Rail opines that “…This record is within normal limits; there are no EEG signs of brain damage…”, an opinion reiterated in the further report of Dr Rail dated 14 October 1966 and similarly opined in his further report of 1 May 1967 in which he says: “…There are signs of damage to the right optic nerve, most probably due to the accident. There is no evidence of other brain damage…”.

27 Further, in his later report of 18 March, 1974, Dr Ross Williams advised that “…Edward has improved considerably in that he is now fairly well settled at school and making satisfactory progress academically. However, his capacity for emotional control is still impaired as he was inclined to violent and prolonged rage after provocation in January. Edward suffers from recurrent headaches for which he is now being treated by his local doctor…”.

28 It ought be noted that in his further report dated 10 July 1987 (nearly twenty-two years after the accident), the further opinion obtained from Dr Rail was as follows:

“…The accident as a child of five years was associated with a long post traumatic amnesia. Brain damage no doubt occurred which is probably mainly in the right hemisphere but probably bilateral…This condition is permanent and places great restrictions on his ability to obtain employment…”.

29 As was set out in the further report dated 23 February 1990 of Peter Kendall, Consultant Physician, the various reports may give rise to a doubt, as follows:

“…that there was or at least should have been a serious doubt about the conflicting opinions by Dr. Williams on the one hand and Dr. Rail on the other. Unfortunately I have often seen opinions expressed by very competent neurologists that there was no evidence of organic brain damage simply because the patient did not reveal any such damage on ordinary neurological examination, EEG, skull x-ray or CT scan, neglecting completely the fact that severe damage including temporal lobe and frontal lobe damage may have occurred. It is well known (and I suggest would and should have been known at the time) that frontal lobe damage may occur without any so-called ‘neighbourhood symptoms’ or without EEG or CT scan damage. Indeed, as far as the latter is concerned, it is quite likely that a CT scan was not available but even if normal this would not have negated the diagnosis of ‘frontal lobe syndrome. In my medical opinion it is not merely a case of post hoc diagnosis of organic brain damage in the light of the patient’s performance during his later childhood, adolescence and as an adult, but that there was a strong presumptive diagnosis of frontal lobe syndrome at the time. The matter was left unresolved, i.e. the conflict of opinion between Drs. Williams and Rail was left unresolved to the detriment of the patient…”.
Settlement of the Original Proceedings

30 Due in part to the passage of time, the evidence available to this Court of the Original Proceedings is less than complete, particularly as the files of the GIO (the insurer of the Defendants) cannot be located following a number of searches of archived records and therefore may no longer exist. The source of most of the available evidence is the file of the Public Solicitor who acted for the Plaintiff in the Original Proceedings and which was admitted in evidence before me.

31 Evidence was adduced before me that for the settlement and compromise of the Original Proceedings, in about March 1970 an offer was made by the Defendants to settle the matter for the sum of $7,000.00 plus costs. The Plaintiff’s then solicitor (which was the Office of the Public Solicitor) sought advice from Mr Knoblanche QC and Mr Young, counsel briefed in the matter, as to the offer. I note that later in the course of negotiations, Mr Knoblanche QC was appointed to the District Court of New South Wales and it was principally the advice and assistance of Mr Young of counsel who aided the Plaintiff’s solicitor in the matter. What is clear is that for many of the relevant steps in litigating the Original Proceedings on behalf of the Plaintiff, his solicitor in this period from the early 1970s repeatedly took steps to obtain and apparently follow advice from the Counsel briefed in the matter.

32 The advice of Mr Young on that first settlement offer was that it appeared to be “…too low unless the case is to be settled on a compromise basis. As to this, there is no allegation of contributory negligence…”, and he suggested that further expert reports and other evidence be obtained.

33 Subsequent advice from counsel delivered 25 August 1971 set out a long description of certain matters relating to the Plaintiff’s claim and advised that “…On the above basis I am of the view that if the matter is settled without apportionment a proper settlement figure would be $17,500.00…”.

34 A hand-written file note in the Public Solicitor’s file dated “17/7” and presumably of 17 July 1973 records the following:

“Att[ended on] Mr Young. He advised that he has considered all of the material contained in the memo and considers that everything possible should be done to settle. He has also received Mr Knoblanche’s advice to this effect & asked me to arrange a conference with Mrs Thornley & Edward. We agreed on 3.00pm next Tuesday 24th July. He also asked me to forward a copy of the P.S. depositions as these were not contained in his brief. I advised that [hand-written note becomes illegible].”

35 A second hand-written file note in the Public Solicitor’s file dated “17/7” and again presumably of 17 July 1973 records the following:

“Att[ended on] Mrs Thornley. I advised her of the conference with Mr Young and she and Edward will attend at this office at about 2.50pm on Tuesday 24th. I advised her that both counsel & I considered that we should settle if at all possible. She will attend.”

36 The file note from the Public Solicitor’s file of the conference with Mr Young of Counsel on 24 July (again presumably in 1973), at which it appears that the Plaintiff, then aged about fifteen years, and his mother were present, records the following:

“….[attended] conference in Mr Young’s chambers with Mrs Thornley and Edward. Mr Young explained the case together with his and Mr Knoblanche’s advice to Mrs Thornley. She instructed to accept the offer of $10,000 plus costs. I will send letter to her husband as he is next friend and get his instructions. I will prepare documentation for infant settlement. Mr Young’s fees are as advised plus [a money figure of either $150 or $180] brief on hearing …”,

following which the copy of the document becomes illegible.

37 Thereafter, the Public Solicitor’s file records that correspondence was sent to Mr Thornley by letter dated 27 July 1973 from the Public Solicitor, in the following terms:

“…I note that your wife and son attended a conference with Mr Butler of my office and Mr Young (Barrister) on the 24th July, 1973. At that conference the possibility of settlement was discussed and I would appreciate your forwarding me written instructions of whether you wish me to settle … the sum of $10,000 plus costs…”. A typed authority in the name of Mr S. Thornley, undated and unsigned, was under cover of that letter, in the following terms : ”…I hereby authorise you to accept an offer of $10,000 plus costs made on behalf of my son Edward Thornley…”.

38 The solicitor’s file thereafter holds that authority signed with the signature “S. J. Thornley” and dated “31st July 1973”.

39 There was also evidence available from the Plaintiff’s solicitor in the Original Proceedings, Mr Frederick P Erickson, whose affidavit sworn 18 December 1974 read before Cantor M included an outline of matters relevant to the proceedings before the Master for approval of the settlement, as follows:

“…The next friend of the Plaintiff is the Plaintiff’s father and he has instructed to accept an offer of settlement of $10,000.00 plus costs made by the Government Insurance Office on behalf of the Defendants. In the circumstances I am of the opinion that this is a reasonable compromise settlement…”.

A large number of medical reports concerning the Plaintiff were admitted into evidence before Cantor M through the Affidavit of Mr Erickson, including the medical reports of Dr Rail dated 4 February 1966, 14 October 1966, 1 May 1967, 23 September 1969 and 14 December 1971 and the reports of Dr Ross Williams dated 20 May 1971 and 18 March 1974.

40 Despite the records being incomplete, it is clear that after further negotiations, the Plaintiff and the Defendants agreed to settle the Original Proceedings for a sum of $10,000.00 plus costs, with certain orders made as to payment of out-of-pocket expenses. It was the terms of this settlement which were approved and entered as the judgment of Cantor M on 19 December 1974 in the Original Proceedings.

Previous Action by the Plaintiff

41 An application was brought by way of Notice of Motion filed by the Plaintiff on 11 January 1990 (the “1990 Motion”) to vacate the judgment entered in 1974 in the Original Proceedings. As set out in the affidavit of James Andrew Yeend (the then Defendants’ solicitor) sworn 8 September 1993 and read before me, the 1990 Motion was heard before Sharpe J. who made orders on 28 June 1991 on the agreed preliminary point raised by the parties. These Orders were that the judgment of Cantor M and orders made in 1974 had been perfected and therefore, there is no jurisdiction of the Court to order that such judgment or orders be set aside upon the Plaintiff’s application brought by the 1990 Motion.

42 His Honour further noted that “…the Plaintiff has regretfully chosen the wrong path on which to pursue his perceived remedy. His possible remedy is to proceed in a separate action” and thereafter dismissed the 1990 Motion, with costs against the Plaintiff.

43 Also read before me was the Affidavit of Joseph Michael Crestani (the Defendants’ solicitor) sworn 14 December 2001 noting the contents of the affidavit of James Andrew Yeend sworn 8 September 1993 with regard to the hearing before Finlay J. on 9 September 1993 and further setting out the further directions of his Honour made that day, together with the further preparation of the matter to hearing before me. This evidence included the request to the Court that the “…jurisdictional question ordered to be heard as a preliminary issue by Badgery-Parker J. on 4 June 1993 be listed for hearing, together with the hearing of the Defendants’ Notice of Motion previously filed on 9 September 1993…”.

44 Further, the Plaintiff had been advised in March 1985 by a Mr Della Marta, solicitor of Messrs. Brydens, on the question of proceeding with a negligence action against the solicitors acting on his behalf in the Original Proceedings, as follows:

“…After perusal of this documentation we are of the opinion that there would be no prospect of success in a professional negligence claim against the Solicitor who acted on your behalf, who was the Public Solicitor, on the face of the documentation that we have to hand…”,

such advice having been rendered prior to any review of documentation otherwise available, such as the Public Solicitor’s file which has been tendered before me.

45 Although the letter of Messrs. Brydens (Mr Della Martin) was tendered before me, I draw no inference that this is concluded legal advice on this aspect of the matter rendered following a review of all relevant documentation and other information available.

46 I am however in the position where I need make no finding on that aspect of this matter.

The alleged lack of legal capacity of the Plaintiff’s father

47 One of the relevant matters in the Summons Proceedings is whether the Plaintiff’s next friend, his father Samuel Thornley, at the time of the settlement of the Original Proceedings had legal capacity to act as next friend. Samuel Thornley had been appointed next friend of the Plaintiff by an order of the Prothonotary of this Court made 3 May 1968.

48 Evidence was lead before this Court from family members and medical experts as to the extent of Samuel Thornley’s capacity. Although I excluded some of the evidence before me, the evidence read and tendered and heard on behalf of the Plaintiff was admitted on the basis that I was to then determine whether this Court has jurisdiction to set aside the original Proceedings and if so, was to proceed with the matter to a further hearing, at which the Defendants were to have leave to cross-examine the Plaintiff’s witnesses on their evidence in chief.

49 The Plaintiff’s sister, Mrs Bonnie Morgan, gave evidence as to her recollection of her father’s health and behaviour in the period from about 1968 until his death, including in the years 1973 and 1974. She said that her father had been unable to assist her mother for some period and recalled him sitting in front of the television and saying “My eyes and brain aren’t working together. I can’t watch the cricket.” She also said that after her father suffered a heart attack and stroke at the end of 1969, he was no longer able to make shoes, sew knit or do carpentry, all of which he had done beforehand. She gave evidence that approximately two years before his death in early 1975, he started walking up and down the hallway all day and when asked why, he said: “If I don’t keep walking I will die”. On another occasion, Mr Thornley was seen to be lying on the lounge with his hands crossed on his chest as if he were dead.

50 An affidavit of the Plaintiff’s brother William Thornley, who also gave oral evidence before me set out his recollection of the Plaintiff and of their father’s health and behaviour in the period from about 1968 until the death of Mr Thornley snr. in January 1975. He recalls that around the early 1970s, his father had complained of seeing tigers, that he had marched in front of the house with a rifle; further, in the years before his death his father had spent hours walking up and down the hall silently and that he was sometimes violent towards their mother. There was also evidence that Mr Thornley snr had suffered a range of medical and health problems since at least his time in the armed forces during World War II and that he had been granted a pension and other services provided through the Department of Repatriation.

51 The Plaintiff, who was aged about ten at the time of the heart attack and stroke suffered by his father, gave evidence that he recalled observing a change in his father after the “attack”, and described his father’s “deterioration” in the following terms:

“My father behaved in an erratic way, on occasion he would become very angry and violent. I recall him stabbing loaves of bread and on occasions he put his hands around my throat as though he was going to choke me. Gradually he acquired the habit of walking up and down the hallway of our house for hours on end. I recollect that, before July 1973, there had been occasions when he obtained a rifle, and had waited at our front gate. On these occasions he would say he was waiting for a lion or a tiger to appear. Increasingly he would become very agitated. By July 1973, I would estimate that he would become agitated about twice a week. His ability to converse had, by July 1973, deteriorated. I noticed that when my father was spoken to by me, or by other members of the family, it was not possible to have a “normal” conversation with him. If I or another member of the family tried to speak to him about some aspect of his conduct which was bizarre or inappropriate, he would change the subject, and would not discuss his behaviour. He seemed to have difficulty when spoken to, in maintaining a particular topic. To my observation he appeared to be unable to focus on a single topic of conversation. At times his behaviour was inappropriate. He would walk up and down incessantly, and on occasion he would appear to hallucinate, in that he would claim there were lions or tigers about, and he would claim that passers by in the street were war time enemies, and would accuse my mother of having affairs with her sons-in-law. On the occasions he behaved in this fashion, I did not observe any conduct on the part of my mother, or by passers by, which would justify the conduct of my father, or the allegations he was making.

52 The Plaintiff submitted that after the heart attack and stroke suffered by his father in late 1969, Mr Thornley snr. sustained brain damage and thereafter, his mother Mrs Edna Thornley, dealt with the Plaintiff’s lawyers and was de facto responsible for decision making concerning the conduct of the Original Proceedings on behalf of the Plaintiff, a role she was entitled to undertake given she was one of the Plaintiff’s legal guardians. In support of this, the Plaintiff relied on the following letter dated 21 January 1970 from Edna Thornley to (presumably) the Plaintiff’s solicitor:

“…I just wish to inform you that my husband Samuel Thornley had a heart attack and a stroke 3 months ago and had brain damage and it looks as though they are taking him into hospital after he sees a brain specialist Friday and may not be able to act as Edward’s friend so I was wondering what can be done if it should be changed to me his mother or his big brother James Edward Thornley who is now 23 years old. Our telephone number is 578724 should you wish to ring me and let me know what should be done. ..”

53 In response to that correspondence, a file note from the Public Solicitor’s file records the following advice:

“…Att[endin]g Mrs T[hornley].

- Informed her we would not worry abt. this for the time being…”

54 The condition of the Plaintiff’s father was assessed by experts for both parties in the Summons Proceedings, bearing in mind that no one was able to examine Mr Thornley snr, who had died in 1975.

55 On behalf of the Plaintiff, an affidavit sworn 18 May 1995 was read of Dr Hugh Jolly, Psychiatrist, which also annexed his report of 15 September 1994 “…as to whether in my opinion Mr Samuel Thornley would have had the capacity at the time of signing the Acceptance of offer to understand the terms or the effect of what he had signed…”. Dr Jolly observes that Samuel Thornley’s medical history (which was provided to him through a series of documentation) reveals a long psychiatric history, including depression, abnormal perceptions, impaired powers of deduction and reasoning, evidence of organic brain disorder from 1969/70 onwards, exhibiting “…some sort of memory dysfunction…”.

56 The history available includes that in 1940 Mr Thornley snr was discharged from active service on the basis of medical unfitness, being anxiety neurosis, although he was criticised for exaggerating symptoms. Dr Jolly infers from clinical notes that Samuel was suffering from post traumatic stress symptoms.

57 In 1955 Samuel is said to have suffered a relapse, showing both affective and paranoid symptoms. In 1964 he was found to have “severe peripheral vascular disease” which made movement difficult, and in 1969 he was admitted to hospital with a diagnosis of “myo-cardial infarction… transient cerebral ischaemia” although the neurological signifiers of this condition did subsequently clear up.

58 Dr Jolly also recorded that thereafter, there appeared from the available medical records a “deterioration or change in Mr Thornley’s mental state, which nowadays would probably be categorised as organic personality change”.

59 According to Dr Jolly’s report, Mr Thornley snr’s social worker reported paranoid trends and accusations of infidelity levelled at his wife, behaviour such as variously swearing and then saying nothing and that he would keep people awake at night. Samuel reportedly had hallucinations of tigers in his garden at the time that he was taking the antidepressant Mandrax.

60 On about 17 June 1971, Samuel was admitted to hospital for investigation of a degree of mental imbalance. He was reported as having poor recent memory but excellent memory for childhood events, and as being rational and oriented and aware of recent behavioural problems. He was diagnosed as having Korsakoff Psychosis and was discharged on a diagnosis of chronic brain syndrome, due to cerebral-vascular disease.

61 A few weeks later in July 1971, Samuel was treated by a psychologist who undertook a series of testing, including the WAIS, the Wechsler Memory Scale and the MMPI. The opinion of the psychologist J Farrelly is set out in his report dated 5 July 1971, which concludes as follows:

“…I can find no evidence to support a diagnosis of Korsakoff psychosis. His short term memory was very good, and he did not confabulate, despite my efforts to make him do so. However, there is evidence of organicity, viz. his poor performance IQ, and his poor performance on those memory tests which tap non-verbal memory. However, his verbal memory, like his verbal IQ, seems intact. This suggests that his organicity may be localized to the visual-motor areas. Speculating even more, the fact that his hallucinations have largely been visual hallucinations suggests a deficit in the occipital brain area. It seems more likely that the psychotic features highlighted by the MMPI are referable to an underlying organic state, although it should be noted that there was a brief period (1954) during which ideas of reference were the main features of his symptomatology…”.

62 Due to the unavailability of any information for the period, Dr Jolly made certain assumptions that in the period between 1971 and 1973, Mr Thornley snr’s:

“…mental state did not improve from that recorded in 1971, but that it did not necessarily deteriorate…based on the natural history of Mr Thornley’s mental health problems so far known to me, I would predict that the relapsing dementia would continue, and that most of the time Mr Thornley would not have sufficient grasp of reality to reason with the commonsense of the ordinary man, and at time he would be grossly psychotic…”.

63 Dr Jolly thereafter provides his expert opinion that:

“…based on the information made available to me…on 31 July 1973 Samuel Thornley was exhibiting the stigmata of organic brain disorder, and on the balance of probabilities he did not have the capacity to understand a document he signed that day, being an Authority to Accept an Offer to his son for settlement of motor vehicle accident litigation. It is my opinion that he would not have understood the terms or effect of what he signed…”.

64 In his report, Dr Jolly further draws the conclusions that:

“…It is also not feasible, at all, that a properly responsible parent who understood the concept of ‘next friend’ ie acting on behalf of a child in litigation would agree to sign settlement papers if the cause of the residual complaints from a motor accident were not properly investigated, treated or understood, at some time after the accident. Bearing in mind Samuel Thornley’s ‘organic brain syndrome’, it seems to me very probable that he did not understand the implications for his son of the son’s accident… because the father himself was organically impaired, unable to comprehend and reason with ordinary good sense…”.

65 On behalf of the Defendants, Clinical Psychologist Dino Cipriani, Psychologist provided a report dated 6 March 2002 which was admitted in evidence before me. In that report, Mr Cipriani notes that the symptoms exhibited by Mr Thornley snr as including memory problems, irritability, worry about work, disturbed sleep and nightmares, amongst other anxious symptoms, with the result that at least by 1962, Samuel was found to be totally unfit for work and was recommended a special pension. He was close to breakdown and was then described as a “depressed man who gives a clear account”.

66 In reviewing the psychological testing on Samuel Thornley undertaken in July 1971 by J. Farrelly (referred to above), Mr Cipriani concludes that:

“…the psychological evidence reported by Ms Farrelly in July 1971 suggest that Mr Thornley did retain at least minimal capacity to assume some legal responsibility. At the time he had made a good recovery from a transient ischaemic attack. His verbal intelligence and memory were intact. These are arguably the most relevant cognitive functions for taking legal advice and making a responsible judgment on behalf of his son. He was not psychotic at that time though her continued sic) to report depressive and anxiety symptoms. There is no evidence that he suffered further cerebral events between 1971 and 1973. His psychiatric symptomatology has fluctuated over the years, at time to manipulate situations and at other times, as a result of increased stress and fluctuating complex PTSD. He may have made a poor judgement on this son’s behalf, however, this did not necessarily relate to his psychiatric or any neurological condition at the time, Mental disability does not necessarily make a person incompetent or incompetent in all areas of functioning. Foolish decisions do not necessarily result from mental incompetence. Dr Jolly has made the assumption that Mr Thornley had a progressive dementia between 1971 and 1973 and was also psychotic during that time. I have seen no documentation that either of these conditions was in evidence when Mr Thornley was closely examined via a psychological assessment and EEG in 971 and there is no documentation that these conditions were present on 31.7.73…”.

67 A further report dated 12 August 2002 of Dr Jolly comments on the report of Mr Cipriani, including the following:

“…Of course, I had to make certain interpretations bearing in mind the lack of clinical information from 1971 onwards. Of course I hope that further inquiry has revealed information which would be useful to clarify the situation yet further. And, whilst I understand what Mr Cipriani is saying, I do not feel obliged to step down from the opinion I previously offered. Please advise me of what further information in this matter is to hand…”.

68 A further report dated 31 December 1996 of Peter Golus, Forensic and Clinical Psychologist was obtained on behalf of the Plaintiff, admitted into evidence subject to later objection and any cross-examination. The opinion of Mr Golus included the following:

“…I concur with Dr Jolly’s statement that Mr Samuel Thornley’s perceptions of the world were abnormal, and his powers of deduction and reasoning impaired. As there is evidence of organic brain disorder further compromising Mr Thornley’s cognitive functioning from about 1970 onwards, it is probable that he did not have the capacity to understand the circumstances surrounding the legal proceedings involving his then five-year old (sic) son, nor the implications of his signing the Authority To Accept An Offer and the amount of settlement monies involved.
Jurisdiction to set aside the judgment in the Original Proceedings.

69 As was noted by Sharpe J in his judgment delivered in 28 June 1991 in the Original Proceedings, the decision of Cantor M made in 1974 has been perfected by the Court. The application made by the Plaintiff in the Summons Proceedings is to set aside that judgment.

70 In submissions made on behalf of the Plaintiff, the Court was urged to grant the relief sought on the basis that, as a matter of general principle as set out in the 4th Edition of Halsbury, at para. 897.4, the Court has an inherent jurisdiction to set aside a judgment with the consent of the parties, provided that setting it aside will cause no particular injury to a third party: see Permanent Trustee Co (Canberra Ltd) v Stocks & Holdings 28 FLR 195.

71 Further, the Court has a power to correct a mistake made when entering a judgment: see the unreported decision of Rogers CJ in Comm. Div delivered 17 July 1989 in Yore Contracts Pty Limited v Holcom Pty Limited Commercial Division, unreported, the matters outlined in Wentworth v Rogers (1987) 8 NSWLR 388 at 394 –5 as to the Court’s residual discretion to correct orders and SRA v Codelfa Pty Ltd (1981) 150 CLR 29.

72 It was also submitted that the Court has power to vary orders where the orders were not regularly brought to an end, but no power to vary orders where the matter has been brought to an end regularly: see Zanatta v McCleary [1976] 1 NSWLR 231 and in particular Bailey v Marinoff (1971) 125 CLR 529, where the Court noted (at 530) that:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of the court, that proceeding apart from the specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have the power to reinstate a proceeding of which it has finally disposed.”

73 The Plaintiff submitted however that in the Original Proceedings, the matter was not brought regularly to an end in the sense that that phrase was used in Marinoff, on the basis that Mr Thornley snr. lacked the capacity to consent to the settlement and the Court was not informed of that fact. As the Plaintiff’s next friend lacked mental capacity at the time of the settlement, in a real sense there was nobody who could give instructions to settle the case and therefore, the Original Proceedings were never brought to an end in the terms of Bailey v Marinoff.

74 The Plaintiff further referred the Court to the case of Harvey v Phillips (1956) 95 CLR 235 for the discussion of the grounds upon which a settlement made by Counsel can be rescinded or set aside. In that respect the Plaintiff pointed to the non-disclosure of a material fact to the Master, that is, the significance of the evidence of brain damage.

75 The Plaintiff also submitted that the Master in part based his decision on Huddersfield Banking Co Limited v Henry Lister & Son Limited [1895] 2 Ch 273 at 284, and did no purport to narrow the application of that decision.

76 The Plaintiff further submitted that there is jurisdiction to set aside a consent order on the basis of mutual mistake; that is, where the parties have made an erroneous assumption concerning a basic fact in issue, then the Court had the jurisdiction to intervene. In the Original Proceedings it was submitted on the basis of the evidence of Mr Thornley snr and perhaps also as an inference arising from the evidence of Mr Erickson that the next friend had the requisite legal capacity to enter into the compromise and settle the matter on behalf of the Plaintiff: see Huddersfield Banking Co Limited v Henry Lister & Son Limited (ibid.).

77 Additionally, it was submitted that if one party has contributed to the mistake made by the other party and thereby the Court may make a finding that there was a unilateral mistake, then consent orders may be set aside even where there has been only a unilateral mistake as to some fundamental aspect: see the unreported decision of the English Court of Appeal (per Lord Denning) in Taylor v Taylor (1975) Court of Appeal , as quoted with approval in Foskett, The Law and Practice of Compromise.

78 It was also noted that where the parties to a compromise on behalf of an infant did not fairly put the case to the Master, the compromise was set aside: see Brooke v Lord Mostyn 2 DE G.J. & S. 372; ER 46 419; cf. In the Marriage of Hannah & Tozer 13 Fam LR 531 at 538.

79 Raising the matter of mutual mistake, the Plaintiff further relied on the case of Taylor v Johnson (1982-1983) 151 CLR 432 for the proposition that a contract may be rescinded if one party is aware of circumstances which indicate that the other party is entering a contract under some serious mistake or misapprehension, and deliberately sets out to ensure that the first party does not become aware of the existence of its mistake or misapprehension. In this case, the Plaintiff submitted that the terms of the settlement reached were seriously undervalued and that the Defendants adduced no evidence in justification of the settlement, the inference to be drawn being that either both parties were mistaken as to the significance of the medical evidence: that is, there was a mutual mistake. Alternatively, if the Defendants were aware of the significance of the medical evidence, then they would have been aware that the settlement was undervalued.

80 The Plaintiff also submitted that the settlement can be set aside as being unconscionable and as a catching bargain: see Blomley v Ryan (1954-1956) 99 CLR 362 at pp. 401, 405, 415 and Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 at 474-477.

81 The Plaintiff suggested that in setting aside the settlement agreed and the judgment entered in the Original Proceedings, the Court need not be concerned as to other similar applications being made which might otherwise compromise the doctrine of finality, as this matter was a unique case and unlikely to give rise to any similar application.

82 In the event the Court sought to exercise a discretion to set aside the Judgment in the Original Proceedings, the Plaintiff submitted that his claim for compensation was brought in part through a statutory scheme which is designed to recompense victims of motor vehicle accidents and that therefore, the concern of the public and the public interest, particularly in light of the clear liability of the Defendants, requires that the matter be reconsidered.

83 The Plaintiff also submitted that in setting aside the judgment made in the Original Proceedings, the Defendants will not suffer any prejudice to them, and nor will the statutory scheme.

84 Additionally, the Plaintiff submitted that the State owed Mr Thornley snr a duty in that his incapacity was in part as a result of his service undertaken during the Second World War, which duty extends to the care of his children. The Plaintiff argued that in this respect, the State failed the Plaintiff further in that he and his parents were dependent upon their legal advisers, the Public Solicitor. It was apparent that the Plaintiff was an infant and there is no suggestion that the Plaintiff took any relevant personal part in the decision which was made to compromise his case in the Original proceedings.

85 A further submission was made by Mr Hall QC on behalf of the Plaintiff that this matter raised a case of equitable fraud. The fraud alleged is that the Court was misled, as the Court was not told that the next friend had no capacity to sign the terms of settlement. Given that equitable fraud does not have to be in terms establishing common law fraud and does not require any actual intent to deceive or mislead, it was therefore suggested that settlement of the Original Proceedings was not regularly brought before the Court.

86 As well, Mr Hall QC submitted that unconscionable conduct arises by the approval of the settlement by the Court, on the basis that both parties had an obligation to the Court to see that the settlement was fairly put, an obligation which the Plaintiff now says that did not occur in the settlement of the Original Proceedings. This is particularly so given that it is submitted that the Defendants took advantage of the Plaintiff by having him medically examined on a number of occasions, but thereafter serving no evidence. An inference might be drawn that the defendants thereby knew that the settlement was too low and therefore the Defendants were unconscionable it what they did and what they put to the Court at the time of the settlement. Indeed, it was concluded that in reality there was no compromise in this case made on behalf of the Defendants.

87 Further, irrespective of any approach adopted by the Defendants, the Court has a very high duty of its own to ensure the settlement was made and approved on terms that were appropriate and to the benefit of the Plaintiff, considering the whole of the circumstances.

88 In considering the setting aside of the judgment entered in the Original Proceedings, it was submitted on behalf of the Plaintiff that given the Summons Proceedings were commenced not by pleadings, but by “…a foundation proceeding setting out the orders sought…” as in the Amended Summons, then the Court was entitled to rely on all the evidence placed before it and not merely evidence considered for the purposes of the “jurisdictional question”.

89 The Plaintiff says that the Court is required to evaluate the evidence and in particular to view the evidence as to whether the Plaintiff has made out a case to justify setting aside the compromise. In doing so, the Court should take the evidence at its most favourable to the Plaintiff, as it is just and fair to do so.

90 In this particular case the medical case was not, the Plaintiff submits, appropriately put and traversed to the Court in the Original Proceedings because when one looks at the whole of the medical evidence, it is submitted that it was clear that the Plaintiff had suffered diffuse brain damage.

91 Further, whilst the father may or may not have appreciated the damage allegedly sustained by the Plaintiff or may have lacked the capacity to give instructions based upon his understanding of the damage allegedly sustained by the Plaintiff, it was submitted that further evidence shows that the Plaintiff’s mother had no understanding of the Plaintiff’s mental condition, on the basis that she believed his care could be undertaken by a general medical practitioner.

92 Although the Plaintiff made a further submission that if the Court looks at the medical evidence of the Plaintiff’s injuries and disabilities relied upon in effect by both parties at the hearing before Cantor M to settle the matter, then the Original Proceedings should have been settled for a figure much higher than it was, I note that there was no evidence before me as to what a more appropriate figure might have been, nor evidence before me of matters settled or determined at around that time comparable to the factual circumstances of the Original Proceedings. This submission in any event must be considered in light of the evidence that was available before Cantor M as to the possibility of brain damage (as noted by Mr Williams, who also noted that the Plaintiff appeared to be improving), as contrasted to the evidence of Dr Rail that he could find no evidence of brain damage. There is also no evidence before me sufficient to establish that the Court in those circumstances should have required further evidence to clarify the Plaintiff’s medical conditions or otherwise to justify the settlement agreed between the parties.

93 Whilst the Plaintiff is of the view that the judgment in the Original Proceedings should not have been approved and that is sufficient for this Court to have jurisdiction to intervene and set aside the decision of the Master, I am of the view that the Court in these Summons Proceedings does not have that jurisdiction and therefore the judgment entered in the Original Proceedings by Cantor M, entered following the approval of the settlement agreed between the parties, should not be set aside.

94 The principle of finality of judgment expects that a properly entered judgment can only be varied on appeal. The oft cited comments of Barwick CJ in Bailey v Marinoff (supra) at 530 are noteworthy:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of the court, that proceeding apart from the specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have the power to reinstate a proceeding of which it has finally disposed.

95 Bailey v Marinoff was a case reopening a final order on appeal. In this respect it could be distinguished from a final order of a trial court. However, the principle articulated by Barwick CJ has been subsequently applied in cases such as Meehan v Glazier Holdings Ltd (2002) 54 NSWLR 146 at 151 (per Giles JA).

96 These Summons Proceedings are not brought by way of appeal. Further, they are not brought before a final, superior court addressing a matter on appeal in circumstances where the application might otherwise have no other opportunity to be heard and which, in the interests of justice, the Court might consider setting aside the orders entered.

97 I note nonetheless that there are a number of specific exceptions to the general rule, some of which were noted by the High Court in DJL v The Central Authority (2001) 201 CLR 226, a case dealing with an application to set aside an earlier appellate judgment of the full Family Court for reason that the High Court had subsequently ruled on the powers of the Family Court and so the Family Court had erred in its earlier decision. In a joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ, the Court in DJL noted (at 244):

“…The common law courts, as superior courts of record, had ‘full power to review a case until judgment [was] drawn up, passed and entered’ [citing] Starke J. in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457...”

98 The Court then went on to refer to possible exceptions to this rule where the final judgment may be vacated (at 244-5):

“…Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court: Shaddock (L) & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce: Ainsworth v Wilding [1896] 1 Ch 673 at 678-679; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Pt 1) 642 at 669. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties: Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195; 15 ACTR 45. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders: Giles (CH) & Co Ltd v Morris [1972] 1 WLR 307 at 313; [1972] 1 All ER 960 at 965…”.

99 Further, the jurisdiction of the Court of Chancery having been referred to the Court of Appeal, the following equitable instances of vacation also may arise (at 244-245):

“…The Court of Chancery also had had jurisdiction: CDJ v VAJ (1998) 197 CLR 172 at 197, to enjoin, by a species of common injunction, the enforcement of judgments fraudulently obtained, including those recovered in the common law courts, or to oblige the holder of such a judgment to enter satisfaction of it upon the judgment roll of the common law court. The exercise of this jurisdiction involved the institution of a separate proceeding. In dealing with the matter, the Court of Chancery might send the issues respecting the alleged fraud to a common law court for trial by a new jury: Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [No 2] (1992) 37 FCR 234 at 239. See also Owens Bank Ltd v Bracco [1992] 2 AC 443 at 483, 489. It is unsettled whether this jurisdiction might have been invoked to set aside judgments by reason of the availability of "fresh evidence" Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [No 2] (1992) 37 FCR 234 at 239-240.

100 These exceptions to the rule of finality therefore include the following for which the Court has jurisdiction to set aside Orders previously made:

(a) an error by way of accidental slip or omission may be corrected;
(b) the record of the Court may be corrected where it fails to reflect the pronouncement or intended pronouncement of the Court;
(c ) where a judgment had been entered by consent and the Court, having considered the interests of any third party, considers that the judgment may be set aside;
(d) in some circumstances where final orders were made in Chambers;
(e) where equity requires the setting aside of a final judgment for fraud; and
(f) where equity requires the setting aside of a final judgment by reason of the availability of fresh evidence, although the majority of the High Court in DJL (at 244) questioned whether this last category might apply.

101 In this matter, I can find no basis in the various categories set out above to relinquish the doctrine of finality and set aside the judgment of the Court made in the Original Proceedings in 1974.

Consideration of evidence throwing doubt on settlement

102 If I am wrong in my determination that the Court does not have jurisdiction in the circumstances of this matter, then even assuming that jurisdiction was available, I would not make orders setting aside the judgment entered in the Original Proceedings.

103 On a review of the available evidence, on the balance of probabilities there is not sufficient evidence in my view that Mr Thornley snr lacked the requisite legal capacity at the time of the settlement of the matter and at the time of the hearing before Cantor M to act as the next friend to the Plaintiff. There is evidence that Samuel Thornley had presented on a number of occasions with conditions and behaviour which might be described variously as psychotic and inappropriate, distressed and violent and on occasions based in hallucination. However, there is no clear evidence that proves on the balance of probabilities that he lacked legal capacity for the purposes relevant to the conclusion of the Original Proceedings.

104 In any event, the issue of the capacity of the Plaintiff’s next friend was not a matter for the Court to take into account in the Original Proceedings, where the Plaintiff and therefore his next friend were represented by counsel and solicitors who have a duty to satisfy themselves as to their instructions. The capacity of the Plaintiff’s next friend was therefore not a matter for the Court to determine in approving the settlement under the Damages (Infants & Persons of Unsound Mind) Act 1929.

105 I therefore do not agree that the Original Proceedings were not validly concluded for want of the capacity of the Plaintiff’s next friend to properly give instructions in the matter to the Plaintiff’s solicitors and to consent to the orders agreed in the settlement.

106 Further, I note that the agreement reached to settle the matter was made not only by the Plaintiff’s father in his capacity as the Plaintiff’s next friend, but also by the Plaintiff’s mother in circumstances where she was more directly able to be advised and discuss in conference in the presence of her son the legal advice of the Plaintiff’s solicitor and counsel to settle the matter on the terms subsequently agreed. Whilst it is clear that the Plaintiff’s mother did not have the standing as the Plaintiff’s next friend to instruct his solicitors nor give her consent to the Court on the proposed settlement, this evidence adds weight to the view that the settlement reached was reasonable and appropriate in the circumstances.

107 Further, the legal advisors of the Plaintiff appear, in the absence of any evidence to the contrary, to have advised the Plaintiff and his family to settle the matter on the terms subsequently agreed. It is apparent that the solicitor for the Plaintiff knew that the Plaintiff’s father had suffered significant health problems in the years prior to the settlement and had ample opportunity to make arrangements to substitute another person as the Plaintiff’s next friend. To suggest that this course was not taken in circumstances where the solicitor had formed the view that Samuel Thornley lacked legal capacity is to infer that the solicitor acted contrary to his obligations to his client and his obligations to the Court and to suggest that he did so intending to mislead the Court as to the statutory requirements for the proposed settlement. There is no evidence of any sort which might ground such suggestion.

108 Further, whilst it is acknowledged that the Plaintiff’s solicitor was not a private firm but the Office of the Public Solicitor and therefore it might be suggested that it was an organisation under the strain of a lack of resources, in my view the steps taken by the Plaintiff’s solicitor in progressing his claim, obtaining reports and gathering evidence, in advising his client and family and in briefing counsel to advise and seemingly following the advice of counsel each demonstrate that the Plaintiff’s solicitor appeared to conduct the matter in an appropriate fashion. In the absence of any evidence to the contrary, I do not infer any failure on the part of the Plaintiff’s solicitor in the conduct of the matter.

109 That is not to say that the Original proceedings might not have been settled on terms more beneficial to the Plaintiff than those the subject of the Orders made by Cantor M. However, there is no evidence available to me that sufficiently grounds a suggestion that the quantum of the settlement made at that time was not appropriate. If evidence of comparable matters made at around that time were available, this may have assisted me in forming another view. Whilst it was submitted that the Plaintiff was suffering from organic brain damage which was either undiagnosed or inadequately described and presented in evidence in the Original proceedings, I note that there was evidence before Cantor M to suggest as well that the Plaintiff had somewhat recovered from the serious injuries he had sustained and was apparently progressing reasonably well at school at the time of the settlement. Whilst the evidence available to the Court now may not be conclusive, in the absence of any basis upon which to set aside the determination of the Court made in 1974 I do not agree that the Court proceeded upon a mistake, whether perpetuated by one or more parties nor do I agree that there is sufficient evidence to establish that the Court did not consider all the relevant evidence available to it in forming the view that the matter ought be finalised on the terms agreed between the parties and nor is there evidence that in doing so, the quantum of the Plaintiff’s claim was not within an appropriate range for claims brought before the Court comparable to the Plaintiff’s claim.

110 I further note that there was no pleading made by the Defendants in the Original Proceedings as to the matter of contribution on the part of the Plaintiff. Given that such a pleading as far as I am aware was not required by the rules of the Court at that time, a view I believe is shared by senior counsel for both the Plaintiff and the Defendants who appeared in the hearing before me, and that further, a claim in contributory negligence against a child aged as young as the Plaintiff at the time of the accident was not a common matter, the fact of there being no plea for contributory negligence in circumstances where the evidence of the independent witness to the accident was not necessarily favourable to the Plaintiff is not a matter which has been shown to have not been considered by the learned Master at the hearing to approve the settlement of the Original Proceedings.

111 The evidence at any hearing of the matter may have been that the Plaintiff’s entitlement would have been significantly reduced because he ran in front of the car. The evidence might have been that the view of the road was very clear and yet the vehicle did not stop, so that there was no contribution on the part of the Plaintiff to the injuries he sustained particularly given his young age. Further, the evidence might have been that the Defendants’ vehicle was so poorly maintained as to render it incapable of stopping in time. It may have been that the evidence showed that the actions of the Plaintiff were such that no one could have stopped a properly maintained car.

112 However, there is no evidence before me that any variations on the available evidence would have or should have resulted in a settlement different to that brought before the Court and subsequently approved by the Master and entered as the judgment of the Court in the Original Proceedings.

113 Further, in obtaining and apparently adopting the legal advice proffered by the solicitor and counsel for the Plaintiff, his parents similarly appear to me to have acted reasonably in the circumstances. Whilst it is possible that the Plaintiff’s organic brain damage may have been missed at the time of the hearing in 1974, or misdiagnosed until much later in his life it is also possible that it did not manifest itself to a level sufficient to warrant the relevant history being given by the Plaintiff to his medical practitioners or the relevant signs be apparent to those in a position to observe their consequence. Either way, the evidence is that the likelihood of the Plaintiff suffering under an organic brain injury as a result of the accident was before the Master and it is therefore accepted by this Court that such matters were taken into account at the time the agreed settlement was concluded and approved.

114 Similarly, there is no evidence to suggest that the Master did not properly consider the evidence before him and meet the obligations imposed upon him to consider the matter in the interests of the Plaintiff rather than his next friend, his parents or his legal representatives.

115 Mr Neil QC for the defendants in the Summons Proceedings argued that there was sufficient evidence to establish that the settlement was properly entered into and approved by the Court. As he noted in his oral submissions before me:

“…the Plaintiff’s advisers, at the very least, took into account matters of liability in coming to the decision to accept a certain figure. They also took into account – and I don’t need to go much further than to say this – they received quite competently and appropriately reports on the state of the mental condition of the plaintiff and called for further reports, and it took about a year or so to get it all worked out. On the basis of all the materials, including the further reports, it was perfectly clear that the level of mental disturbance (if any) assessed at that time by the doctors was marginal. That was taken into account.
In other words, the big point of brain damage was not available at the time. It didn’t come out until about 1984, which has precipitated the situation now, but that is part of the litigation system. We would say this [is] perfectly plain from the material, and we refer to paragraph 2.15 of our material, that Mr Knoblanche had been briefed, that careful consideration was given and there can be no doubt that the parties, through their legal representatives, between themselves, agreed on the figure. There can be no doubt that the matter went before Master Cantor; there can be no doubt that the Master can be presumed, we would say, both as a matter of law and commonsense, to have attended his duties and satisfied himself that it was a proper settlement at the time and the judgment was entered; and there can be no doubt that the judgment was regularly noted and the orders taken out, and there is no doubt, because we had an agreement last time when I asked for a concession – it was very responsibly made by my learned friend on instruction – that we paid the money and it was received by the plaintiff or his solicitor…”.

116 As was further noted by Mr Neil QC, a next friend in any proceedings undertakes a role which includes receiving advice and providing instructions on behalf of the infant plaintiff and adopts a position often favourable to the defendant in having a person a part of the proceedings against whom an order for costs might be made, but for any determination of a settlement proposed on behalf of an infant, that is not a matter for the instructions of the next friend or the advice of the legal representatives of any party, although such evidence is no doubt of assistance to the Court, but is a matter for the Court itself.

117 I do not accept the submissions of Mr Hall QC for the Plaintiff that the Plaintiff’s father lacked the necessary legal capacity to act as the next friend to the Plaintiff in the Original Proceedings. Further, I do not accept that the judgment entered in those proceedings was done on the basis of any mistake or unconscionable conduct or equitable or other fraud.

118 Further, although it was submitted on behalf of the Plaintiff that the State owed Mr Thornley snr a duty as a war veteran, which duty extends to the care of his children, there is no evidence to support any finding that such duty, if indeed it arises in this context, was not satisfied by the State in the services of the Public Solicitor, the role of the Court, the approval of the settlement by the Master, the entering of the relevant orders and their discharge by the Defendants through payment of settlement monies due to the Plaintiff.

119 I am very concerned that the Plaintiff has had to endure the long course of these Summons Proceedings in circumstances where his health and well-being are likely to have been affected. I appreciate the efforts he and other members of his family have taken in presenting his case before the Court. This is particularly so as, under more recent developments in the law, an application such as this which is quite an unusual matter and which allows the law to be reviewed in the light of very relevant personal circumstances, might only be brought with the assurance to the Court by legal practitioners that the matter has a prospect of success. Counsel for each of the parties has more than ably demonstrated that this application was a matter which warranted measured consideration of many authorities and a large body of law, in both the review of precedent and its application to the particular circumstances of the Plaintiff’s claims in both the Original Proceedings and the Summons Proceedings.

120 For the reasons I have set out above I dismiss the Amended Summons filed by the Plaintiff. In the light of the Plaintiff’s lack of success, the Defendants should recover their costs.

121 I make the following orders: -

i. the Amended Summons is dismissed; and

ii. the Plaintiff is to pay the Defendants’ costs.

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Last Modified: 08/23/2004