TN v Rossiter

[2023] ACTSC 376

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	TN v Rossiter
Citation:	[2023] ACTSC 376
Hearing Date:	8 December 2023
Decision Date:	8 December 2023
Before:	McCallum CJ
Decision:	(1)  Pursuant to Rule 282 of the Court Procedure Rules 2006

(ACT), I approve the parties’ entry into a

compromise/settlement of the proceeding, on the following

basis:

(a) The Respondents pay the Applicant the sum of $1,100,000, including funds management fees

(“Settlement Amount”); and

(b)	The Respondents pay the Applicants’ costs of the
claim on a party/party basis (including the costs of this application), as, agreed or assessed.

(2)	Judgment be entered for the Applicants against the Respondents on the terms set out in Order 1 above.
(3)	The Respondents make payment of the Settlement Amount as follows:

(a)	The amount of $665,000 be paid to the First Applicant, TN (a pseudonym).
(b)	The balance of the Settlement Amount to the Court, to be transferred by the Court to the ACT Public Trustee and Guardian to be held on trust for the benefit of the Second and Third Applicants equally until they cease to be under a legal disability, in accordance with rule 1618 of the Court Procedure Rules 2006 (ACT).

(4)	Interest not to run on the Settlement Amount if paid within 28 days of sealed orders being received; and on costs if paid within 28 days of agreement on costs being reached or a certificate of costs assessment being issued.
(5)	Costs of this application be paid by the Respondents on a party/party basis, as agreed or assessed.

Catchwords:	TRUSTS AND TRUSTEES – COMPENSATION TO RELATIVES CLAIM – Application for approval of a compromise of proceedings – where the beneficiaries are under a legal incapacity being children – application approved where the
compromise is beneficial to the persons under the legal incapacity
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 282, 1618
Cases Cited:	Ryan v Larkham [2022] ACTSC 151 Veal (by his next friend Watson) v Hehir [2018] ACTSC 330
Parties:	TN (a pseudonym) (First Applicant)
NKN (a pseudonym) (by her litigation guardian TN) (Second Applicant)
KBN (a pseudonym) (by his litigation guardian TN) (Third Applicant) Ashley Rossiter (First Respondent)
AAI Limited Trading as GIO (ABN 48 005 297 807) (Second Respondent)
Representation:	Counsel
A Muller SC (Applicants) V Jamieson (Respondents)
Solicitors
Maliganis Edwards Johnson (Applicants)
Moray & Agnew Lawyers (Respondents)
File Number:	SC 466 of 2023
McCALLUM CJ:
1․	TN (a pseudonym) was involved in a multiple car pileup which was not his fault and as a
result of which he suffered physical injuries causing considerable pain. Following the
accident, he suffered a deterioration in his mental health. He commenced proceedings
for a motor vehicle accident claim, but committed suicide before that claim was
determined. His wife then instructed solicitors to act on her behalf and on behalf of her
two children in a compensation to relatives claim.
2․	The motor vehicle accident claim has been resolved. The Court plays no role in that
claim. The compensation to relatives claim has also resolved. It is necessary for the
Court to consider whether to give its approval to the settlement insofar as it affects the
children, who may only conduct the proceedings by a litigation guardian. By originating
application dated 3 November 2023, TN (a pseudonym), in her capacity as litigation
guardian for the two children, seeks the Court’s approval of the settlement.
3․	I have, this morning, had the benefit of considering a confidential advice prepared by Mr
Muller of Senior Counsel, who appears for the applicants. That advice sets out, in careful
detail, an analysis of Mr Muller’s assessment of the settlement.
4․	The principles to be applied by the Court in considering whether to give its approval in
accordance with r 282 of the Court Procedure Rules are not in dispute. They have been
considered and helpfully summarised in a number of decisions of McWilliam J. It is
enough to refer to her Honour’s decision in Veal (by his next friend Watson) v Hehir
[2018] ACTSC 330 at [21] to [23]:

21․ The rule reflects the inherent protective jurisdiction of the Court (described as the

court’s parens patriae jurisdiction), exercised under the framework provided for by

the rules and statutes: Singh (by her next friend Singh) v Calvary Hospital Act Inc (No 2) [2009] ACTSC 57; 3 ACTLR 247 at [11]; Duffell v Duffell [2015] ACTSC 123 at [11].

22․ The parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Secretary, Department of Health and Community Services v JWB and

SMB [Marion’s Case] (1992) 175 CLR 218 at 258–9 per Mason CJ, Dawson,

Toohey and Gaudron JJ, 278–80 per Brennan J.

23․ From the words emphasised above in r 282, it may be seen that the rule reflects the

Court’s power to protect the interests of a person under a legal disability, by

maintaining full control over any settlement compromising their claim: Dietz v

Lennig Chemicals Ltd [1969] 1 AC 170 at 189 per Lord Pearson.

5․	I applied those principles in the matter of Ryan v Larkham [2022] ACTSC 151 at [3].
6․	In short, the overriding principle to be applied by the Court in exercising the discretion
whether to approve a settlement is for the Court to consider whether the proposed
compromise is or is not beneficial to the interests of the person under an incapacity. That
decision is uniquely one for the court and not the parties. While it is rare, it has occurred
on occasion that the Court has taken the view that a settlement is more in the interests
of the lawyers than the parties and has declined to give its approval.
7․	This is not such a case. The settlement that has been achieved in the present case
warrants the approval of the Court.
8․	Having regard to the fact that Mr Muller’s affidavit is confidential, it is appropriate to be
circumspect in explaining my reasons for reaching that conclusion. The material that
can be referred to openly includes an affidavit of TN, who explains that the compensation
to relatives claim has been settled by negotiation subject to the approval of the Court for
$1.1 million inclusive of out of pocket expenses and fund management fees, plus the
party-party portion of her legal costs and disbursements as agreed or assessed.
9․	TN states that it is her understanding that, if the settlement is approved, $665,000 of that
fund will be paid to herself, which she will use to provide mortgage-free accommodation
for her family and treatment and schooling expenses for the children. She will also be
required to pay part of those funds towards the solicitor/client increment of the costs
payable to Maliganis Edwards Johnson and Mr Muller SC.
10․	Following the suicide of her husband, TN lives in the home now only with the two children.
She states that she would like the remaining funds, being a sum of $435,000, to be
invested equally on behalf of her children until they attain majority. Those funds are to
be paid to the ACT Public Trustee and Guardian.
11․	The matters analysed in the confidential advice have led me to conclude that that is a
settlement which is beneficial to the interests of the two children. It is appropriate, in that
context, to have regard to TN’s statement in her affidavit that, having received advice
from the solicitors and Mr Muller, she is satisfied that the compromise reached is
sufficient to cover the cost of loss of financial support and domestic services of her late
husband. She also states her understanding that it is a once-and-for-all settlement and
that, once approved by the court, it cannot be reopened.

Orders

12․	For those reasons, I make orders 1 to 5 in the form of consent order provided by the
parties as follows:

(1)	Pursuant to Rule 282 of the Court Procedure Rules 2006 (ACT), I approve the
parties’ entry into a settlement of the proceeding, on the following basis:

(c) The Respondents pay the Applicant the sum of $1,100,000, including

funds management fees (“Settlement Amount”); and

(d) The Respondents pay the Applicants’ costs of the claim on a

party/party basis (including the costs of this application), as, agreed

or assessed.

(2)	Judgment be entered for the Applicants against the Respondents on the terms
set out in Order 1 above.
(3)	The Respondents make payment of the Settlement Amount as follows:

(e) The amount of $665,000 be paid to the First Applicant, TN (a

pseudonym).

(f) The balance of the Settlement Amount to the Court, to be transferred

by the Court to the ACT Public Trustee and Guardian to be held on

trust for the benefit of the Second and Third Applicants equally until

they cease to be under a legal disability, in accordance with rule 1618

of the Court Procedure Rules 2006 (ACT).

(4)	Interest not to run on the Settlement Amount if paid within 28 days of sealed
orders being received; and on costs if paid within 28 days of agreement on
costs being reached or a certificate of costs assessment being issued.
(5)	Costs of this application be paid by the Respondents on a party/party basis, as
agreed or assessed.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: