Davis v Greater Western Area Health Service [2005] NSWSC 1206

New South Wales Supreme Court

CITATION : Davis v Greater Western Area Health Service [2005] NSWSC 1206

HEARING DATE(S) : 11 November 2005

JUDGMENT DATE : 1 December 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Rothman J at 1

DECISION : 1. The settlement contained in paragraph 2 of the Terms of Settlement filed herein be approved.; 2. The Defendant pays agreed costs of $60,703.18 to the plaintiff's solicitor.; 3. The Court accepts the resignation of the plaintiff's tutor upon a document formallly recording same, with a verifying affidavit, being filed in the Registry, a copy of which shall be served on the defendant, whereupon the defendant shall pay the balance of settlement monies upon authority to receive signed by the plaintiff.

CATCHWORDS : Notice of Motion - Orders sought to allow resignation of tutor - whether legal incapacity

Uniform Civil Procedure Act LEGISLATION CITED : Uniform Civil Procedure Rules

Plaintiff - Elton DAVIS PARTIES : Defendant - Greater Western Area Health Service

FILE NUMBER(S) : SC 20390/1999

P - Mr Hill COUNSEL : D - Mr Windsor

P - Longman Hill SOLICITORS : D - GIO - General Insurance Law Department

LOWER COURT JURISDICTION :

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ROTHMAN J

1 DECEMBER 2005

ELTON DAVIS v GREATER WESTERN AREA HEALTH SERVICE 20390/1999

JUDGMENT 1 ROTHMAN J: By Notice of Motion the plaintiff moves for four orders, the effect of which, together with terms of settlement, would bring these proceedings to an end. The orders have the effect of allowing the case to settle by allowing the resignation of the tutor. 2 On 4 October 2002, the Court appointed a tutor for the plaintiff although it is unclear to what extent the tutor has been involved in reaching the decisions necessary to get to this stage. The stage of proceedings currently is that the Plaintiff and Defendant have each executed Terms of Settlement to the effect that judgment will be entered for the Plaintiff in the sum of $299,296.82 plus costs as agreed in the sum of $60,703.18. 3 If the tutor remains in place at the time of judgment and/or implementation of the settlement then the judgment monies will need to be paid into court and dealt with in accordance with the Uniform Civil Procedure Act (ss. 75, 76 and 77) and the Rules. 4 The motion seeks approval of the settlement, an order for costs as agreed; acceptance of the resignation (when received) of the tutor and an order that the defendant pay the balance of settlement monies upon authority to receive signed by the Plaintiff; and, in the alternative to the last mentioned order, for payment of the settlement monies into court to be paid out to a manager upon appointment by a supreme court in a State or Territory. 5 The only issue is whether approval should be given to the settlement and, if so, whether the monies should be treated in a manner consistent with the plaintiff having a continuing incapacity.