Fisher by her tutor Fisher v Marin [2008] NSWSC 1357

New South Wales Supreme Court

CITATION : Fisher by her tutor Fisher v Marin [2008] NSWSC 1357

HEARING DATE(S) : 11 June 2008 (plus subsequent written submissions)

JUDGMENT DATE : 16 December 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) The Court disapproves the agreement formed by the acceptance, on 22 August 2006, by the defendants, of an Offer of Compromise made by or on behalf of the plaintiff on 8 August 2006, in these proceedings;

(ii) A declaration that, pursuant to s 76(5) of the Civil Procedure Act 2005, the agreement is not binding on any party to the proceedings, each of whom was a person by whom or on behalf of whom the agreement was made;

DECISION : (iii) The proceedings are referred to the Registrar;

(iv) The hearing of this matter is granted expedition;

(v) The parties be at liberty, within two days of the commencement of law term 2009, to apply to the Court, to my Associate, to refer the matter for mediation, either before the Registrar or otherwise, and if so on what conditions, and to file an application for any order as to costs, to my Associate.

CATCHWORDS : NEGLIGENCE – incapacity of plaintiff – approval application for settlement reached – significant issues on liability – discount on damage – plaintiff, bound by agreement, opposes approval – settlement disapproved

LEGISLATION CITED : Civil Procedure Act 2005

CATEGORY : Principal judgment

Elliott (by his next friend) v Diener (1978) 21 ACTR 21 Karvelas (by her next friend) v Chikirow (1976) 26 FLR 381; (1976) 11 ACTR 22 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 CASES CITED : Permanent Trustee v Mills [2007] NSWSC 336 Re Birchall; Wilson v Birchall (1880) 16 Ch D 41 Re Ley's Trusts [1964] 1 WLR 640 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Yu Ge by her tutor Tao Ge v River Island Clothing Pty Ltd and Ors [2002] NSWSC 28