Supreme Court New South Wales Medium Neutral Citation: Hunt v Marellen Pty Ltd [2024] NSWSC 974 Hearing dates: 7 August 2024 Decision date: 08 August 2024 Jurisdiction: Common Law Before: Ierace J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – approval of settlement in relation to persons under legal incapacity – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) ss 75, 76, 77 Cases Cited: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 Category: Principal judgment Parties: Joseph Hunt bht Kristie McMahon (Plaintiff) Summer Sarah Jay Hunt bht Kristie McMahon (Plaintiff) Marellan Pty Ltd (Defendant) Representation: Counsel: A Joseph (Plaintiffs) M Tavener (Sol) (Defendant) Solicitors: Lindeman Lawyers (Plaintiffs) Thynne Macartney (Defendant) File Number(s): 2019/359548; 2019/359584 JUDGMENT 1. This is an application for approval of proposed settlements of claims for damages commenced on behalf of Joseph Hunt (Joseph) and his sister Summer Hunt (Summer), by their half-sibling as their tutor, Kristie McMahon, against Marellen Pty Ltd (the defendant) who, it is alleged, was responsible for the death of their father, Douglas Hunt. 2. The applications are made pursuant to ss 75 and 76 of the Civil Procedure Act 2005 (NSW) (the Act). Section 76 provides that, in a case of proceedings commenced on behalf of a person under legal incapacity, an agreement for a compromise or settlement cannot be made, unless it is approved by the Court. The plaintiffs' incapacity arises by virtue of their ages; Joseph is aged 13 and Summer is aged 17. Background 1. The claims arise from the sinking of a fishing vessel known as the FV Night Raider (Night Raider), which was owned and operated by the defendant. Douglas Hunt was a crew member on board at the time. On 12 November 2016, the Department of Agriculture and Fisheries vessel monitoring system (VMS) lost contact with the Night Raider. Its last known position was north-west of Fraser Island, Queensland. On 17 December 2017, a hydrographic survey of the ocean floor in the area of the last known position of the Night Raider discovered it lying in 142 metres of water. Images taken by a remotely operated submersible vessel (ROV) did not detect any apparent damage to the hull or other visual explanation for its sinking. No bodies were recovered. 2. In a finding dated 14 January 2020, the coroner determined that the deceased drowned on 12 November 2016, consequent to the Night Raider overturning and sinking. 3. By separate amended statements of claim filed on 1 September 2021, Joseph and Summer claimed damages for nervous shock arising from their father's death, that was alleged to have occurred consequent to the defendant's negligence (the nervous shock claims). 4. By an amended statement of claim filed 9 September 2021, Joseph and Summer Hunt claimed for the loss of financial and/or non-financial benefits of dependency as a result of their father's death, which they alleged was caused by the negligence and/or breach of contract of the defendant (the dependency claim). Another sibling, Daniel Hunt, by his tutor Kristie McMahon, and Holly McMahon, who is a sister of Kristie McMahon, were also plaintiffs in that claim. I note that of the four plaintiffs, at this time, only Joseph and Summer are still of an age that requires the Court to approve or disapprove any proposed settlement. The notices of motion for approving settlement 1. By notices of motion that were filed on 22 July 2024, Joseph and Summer each seek approval of a proposed settlement of proceedings in relation to their nervous shock claims, by way of judgment for the defendant, and an order that each party bear their own costs of the proceedings. 2. By separate notices of motion of the same date, Joseph and Summer seek approval of a proposed settlement of the proceedings concerning their dependency claim. The proposed settlement would entail judgment for the plaintiff in the amount of the nominated judgment sums, which would be paid to the NSW Trustee and Guardian pursuant to s 77 of the Civil Procedure Act 2005 and held on behalf of each of them until they attain the ages of 18 years, and an order that the defendant pay their costs as agreed. 3. Separate reports prepared by a psychiatrist, Dr C Rikard-Bell, in relation to Joseph and Summer, were provided to the Court. The reports canvass Dr Rikard-Bell's respective assessments of the impact on them of their father's loss. I have also been provided with a confidential memorandum of advice prepared by counsel briefed by the plaintiffs, Andrew Joseph, that candidly canvasses the strengths and weaknesses of the plaintiffs' cases. 4. Affidavits by Kristie McMahon, who as I noted earlier is the plaintiffs' tutor, in respect of Joseph (dated 27 June 2024) and Summer (also dated 27 June 2024) were read at the hearing, in which she expressed her awareness that the settlements, if approved, would bring to an end any possibility of future claims by Joseph and Summer against the defendant in respect of the loss of their father. She noted the disbursements to be made from the proceeds and requested that the settlement orders be made. 5. Affidavits by Matthew Lindeman, the plaintiffs' solicitor, both dated 5 July 2024, were also read, in respect of Joseph and Summer, in which he expressed his view that liability would be difficult to establish if the matter proceeded to trial because of, among other matters, the unknown cause of the sinking of the Night Raider. He expressed his view that the proposed settlements are reasonable in all the circumstances and noted that he would not be claiming any solicitor/client fees in either matter. Legislation 1. Sections 75, 76, and 77 of the Civil Procedure Act 2005 (NSW) relevantly provide: "75 Settlement of claim made on behalf of, or against, person under legal incapacity (1) This section applies to any claim, enforceable by proceedings in the court, that is made by or on behalf of, or against, a person under legal incapacity. (2) If, before proceedings are commenced with respect to any such claim, an agreement for the compromise or settlement of the claim is made by or on behalf of the person under legal incapacity, the court may approve or disapprove the agreement. (3) An agreement disapproved by the court does not bind the person under legal incapacity. (4) An agreement approved by the court binds the person under legal incapacity as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent. 76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity (1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons— (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court finds, during the course of the proceedings, to be incapable of managing his or her own affairs. (2) The court may make a finding referred to in subsection (1) (c) only on the basis of evidence given in the proceedings in which it is made, and such a finding has effect for the purpose only of those proceedings. (3) Except with the approval of the court, there may not be— (a) any compromise or settlement of any proceedings to which this section applies, or (b) any acceptance of money paid into court in any such proceedings, as regards a claim made by or on behalf of, or against, a person referred to in subsection (1). (3A) However, the approval of the court is not required in relation to any agreement for the compromise or settlement of any matter in dispute in proceedings commenced by, or on behalf of, or against, a person under legal incapacity if, on the day the agreement for the compromise or settlement is made, that person has attained the age of 18 years and is not otherwise a person referred to in subsection (1). Accordingly, subsections (4)–(6) do not apply in relation to any such agreement. (4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement. (5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made. (6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent. 77 Payment of money recovered on behalf of person under legal incapacity (1) This section applies to money recovered in any proceedings on behalf of any of the following persons— (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs, pursuant to a compromise, settlement, judgment or order in any proceedings. (2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court. (3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including— (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate. (4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including— (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate." Consideration 1. The Court's function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336, Hammerschlag J (as his Honour then was), referring to the legislative scheme in the Compensation to Relatives Act 1987 (NSW), observed, at [29], in an oft-quoted passage: "The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640; …" 1. In accordance with Hammerschlag J's observations, in my view, the proposed settlements are beneficial, appropriate and in the best interests of Joseph and Summer. Accordingly, I approve the settlements in the terms set out in the paragraphs numbered (1) to (9) in the consent orders in respect of the dependency claim, as amended by hand by me with the parties' consent; and, in paragraphs (1) to (3) of the consent orders in respect of each of the nervous shock claims. I shall initial a copy of each of the three sets of orders and place them in the Court file. ********** 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: 09 August 2024