Supreme Court New South Wales Medium Neutral Citation: Ramon Pratap by his tutor Katherine Pratap v Jesmardan Pty Ltd t/as McDonalds Restaurant Casula [2020] NSWSC 1855 Hearing dates: 17 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Common Law Before: Bellew J Decision: (1) I vacate the hearing date of 22 February 2021. (2) Pursuant to r 7.36(1) of the Uniform Civil Procedure Rules New South Wales 2005 (NSW), I am satisfied that it is in the interests of the administration of justice to refer the plaintiff to the Registrar, and I accordingly order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. (3) In carrying out the referral pursuant to order 2, I direct the Registrar to make a copy of these reasons available to any barrister or solicitor on the pro bono panel who indicates that he or she may be able to assist the plaintiff. (4) I direct the defendant to bring any application for declaratory relief by 1 February 2021. (5) I list the matter for further directions before me at 9.15am on 22 February 2021. Catchwords: PRACTICE AND PROCEDURE – Approval of settlement – Where proceedings purportedly settled at mediation – Where plaintiff's tutor self-represented – Where tutor asserted that she was misled at the mediation as to the amount of costs to be deducted from any settlement sum and paid to the plaintiff's former solicitors – Clear issue as to whether a settlement had been effected – Evidence otherwise insufficient to form a view as to whether the settlement was just or otherwise – Settlement not approved – Orders made for the further management of the proceedings including order for referral for pro bono assistance Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Ramon Pratap by his tutor Katherine Pratap – Plaintiff Jesmardan Pty Ltd t/as McDonalds Restaurant Casula - Defendant Representation: Solicitors: Plaintiff – Self represented Defendant: Sparke Helmore File Number(s): 2014/161743 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. The plaintiff commenced these proceedings against the defendant on 29 May 2014 seeking damages for injuries which were allegedly sustained on 10 June 2011 when, whilst at a McDonald's outlet in Casula, he swallowed a foreign item which was contained in a thick shake. 2. On the limited evidence which has been made available to me, the plaintiff's principal claim is one for damages for psychological or psychiatric injury. That claim is made in circumstances where the plaintiff appears to have had some form of pre-existing mental illness. 3. The plaintiff was originally represented by Firths The Compensation Lawyers (Firths). He withdrew his instructions from Firths on about 12 June 2015. Since that time, the plaintiff's tutor, who has appeared before me today, has conducted the proceedings herself without the assistance of a lawyer. 4. It is evident that for the greater part of the last 2 years, there has been ongoing correspondence about the amount of solicitor/client costs which may or may not be payable to Firths for the work they undertook prior to their instructions being withdrawn. I should say that on the evidence which has been made available to me, the amount of costs sought by Firths does not appear to be entirely commensurate with either the amount of work which appears to have been undertaken, or the period for which they were retained. Ultimately however, those are not issues for me. 5. The proceedings were referred to a Court-appointed mediation which took place on 30 November 2020. On that day, a Heads of Agreement was executed giving effect to what the defendant now asserts is a settlement of the proceedings. Because of the plaintiff's disability, that purported settlement has come before me today for approval. However, the plaintiff's tutor has filed an affidavit asserting that she was misled about the total amount of costs which would be payable to Firths from the settlement sum. There is, prima facie at least, a degree of confusion in the mind of the plaintiff's tutor between party/party costs on the one hand and solicitor/client costs on the other. That is not a criticism of the plaintiff's tutor, nor is it surprising given that the tutor is not legally qualified. 6. It is the defendant's position that the matter has settled and that the evidence does not support a conclusion that the tutor was under any relevant misunderstanding. I do not accept that proposition. On the evidence before me, there is a clear issue raised in the affidavit filed by the plaintiff's tutor as to her understanding of the terms of the purported settlement. There is, therefore, an equally clear issue as to whether the matter has, in fact, settled. If it is the defendant's position that a settlement has been reached, and in circumstances where the plaintiff's tutor asserts that this is not the case, it will be necessary for the defendant to bring an application for declaratory relief in appropriate terms. The issue of whether a settlement has in fact been reached is one that can only be resolved at a hearing where the deponents of the various affidavits are cross-examined, the evidence analysed, and a determination made. 7. I should also say that even if this issue had not arisen, the evidence which has been placed before me today falls well short of that which would be required to enable me to properly discharge the Court's protective function and approve the settlement. There is, frankly, a paucity of medical evidence which has been made available to me. I am in no position to determine whether the purported settlement is just or not. 8. I have endeavoured to explain to the plaintiff's tutor that the issue which has now arisen is a complex one. I have expressed the view that the plaintiff's interests would be best served if legal representation were engaged on his behalf. An application for declaratory relief, assuming that it is made, is not a matter which is appropriately conducted by a litigant in person if it can be avoided. It would, in my view, be in the interests of both parties, as well as in the interests of the broader administration of justice, if the plaintiff were represented on the hearing of any such application. 9. In conveying those views to the plaintiff's tutor in Court this morning, I endeavoured to make it clear that it was not part of my function to give legal advice. However, I explained that I took the view that the plaintiff's interests would be best served if he were legally represented. I also explained the nature of the pro bono scheme for which provision is made in r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). It seems to me that this is an appropriate case to invoke those provisions in the hope that a solicitor or a member of the Bar will make himself or herself available to assist the plaintiff and his tutor. 10. The unfortunate consequence of the issue which has arisen is that the hearing date of 22 February 2021 will have to be vacated. It will be impossible for any issue of the legality of the settlement, or any associated issue of the plaintiff's representation, to be resolved prior to that time. I understood the solicitor for the defendant to accept that position, albeit with a degree of reluctance. 11. In the circumstances, I make the following orders: 1. I vacate the hearing date of 22 February 2021. 2. Pursuant to r 7.36(1) of the Uniform Civil Procedure Rules New South Wales 2005 (NSW), I am satisfied that it is in the interests of the administration of justice to refer the plaintiff to the Registrar, and I accordingly order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. 3. In carrying out the referral pursuant to order 2, I direct the Registrar to make a copy of these reasons available to any barrister or solicitor on the pro bono panel who indicates that he or she may be in a position to assist the plaintiff. 4. I direct the defendant to bring any application for declaratory relief by 1 February 2021. 5. I list the matter for further directions before me at 9.15am on 22 February 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 January 2021