Supreme Court New South Wales Medium Neutral Citation: Nikopoulos v Ghalayani Nominees Pty Ltd [2014] NSWSC 1613 Hearing dates: 13/11/2014 Decision date: 13 November 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1) Declare that the judgments entered on 25 July 2014 are valid, nunc pro tunc. Catchwords: PROCEDURE - civil - court approval of settlement where plaintiff suffers legal incapacity - where more beneficial for plaintiff to remain on worker's compensation benefits than to pursue common law action - whether court can perfect orders made irregularly nunc pro tunc Legislation Cited: Civil Procedure Act 2005 (NSW) Workers' Compensation Act 1987 (NSW) Cases Cited: Guss v Veenhuizen (No 2) (1976) 136 CLR 47 Category: Principal judgment Parties: William Nikopoulos by his Tutor Dora Nikopoulos (Plaintiff) Ghalayini Nominees Pty Ltd (First Defendant) Star Plumbing Services Pty Ltd (Second Defendant) Zead Ghalayini (Third Defendant) Representation: Counsel: A Campbell (Plaintiff) T Moisidis (First and Third Defendants) O Dinkha (Second Defendant) Solicitors: Law Partners Compensation Lawyers (Plaintiff) Hunt & Hunt (First Defendant) Curwoods Lawyers (Second Defendant) Kydon Segal Lawyers (Third Defendant) File Number(s): 2013/370394 Ex tempore Judgment (Revised) 1I am asked to approve a settlement in a personal injuries action under the provisions of s 76 of the Civil Procedure Act 2005 (NSW). 2The plaintiff suffered very serious personal injury in the course of his employment as an apprentice electrician. 3His employer is not a party to the proceedings and he has been in receipt from the date of the accident of continuing workers' compensation benefits. The amount paid by the Workers' Compensation Insurer currently exceeds $1.2m. 4The accident occurred on 11 December 2010 when the plaintiff was working for his employer on premises at Woronora, in the south of Sydney, which were being renovated. He suffered a severe electrical shock when he came into contact with an energised LPG copper pipe located in the subfloor space of the house. 5He is left with a very substantial acquired brain injury and has been assessed as having a 65 per cent whole person impairment for the purpose of the Workers' Compensation Act 1987 (NSW). The parties accept he is legally incapacitated. 6On the evidence attached to the affidavit of his solicitor, Ms Jane O'Sullivan, it seems likely that he will never work again and he will need substantial medical support for the whole of his life. Amongst the benefits he is currently receiving from the Workers' Compensation Insurer, I am informed, are very expensive benefits for domestic assistance. 7The defendants sued are the registered proprietor of the premises, a plumbing company operated by the controlling mind of the registered proprietor and the plumber himself. 8As I have said, the premises were residential premises under renovation. The plaintiff's employer was then a qualified and licensed electrician engaged to perform the necessary electrical work in relation to the renovation. One needs only to state that fact to appreciate that primary responsibility for the failure to disconnect the electrical supply before the commencement of work is likely to fall at the feet of the employer. The plaintiff's common law rights against his employer, to say the very least, are extremely truncated by the provisions of Division 3 of Part 5 of the Workers' Compensation Act 1987. 9The plaintiff has been represented by a very experienced personal injuries solicitor, at least since the early part of this year. He has also had the benefit of representation by Michael Cranitch SC. Few barristers in New South Wales would have had more experience in this area of the law than him. Mr Andrew Campbell of counsel, who appears for the plaintiff today, has had years of experience in the field. A view has been formed by those representing him, which his mother and tutor accepts, that that the plaintiff is better off continuing on his workers' compensation benefits which are likely to continue for the rest of his life. 10He is only 22 years of age, and one can gather from the amount paid so far that many millions more are likely to be paid for his benefit in the decades to come. 11Despite the changes that were made in 2012 severely curtailing the rights of workers to workers' compensation, Mr Campbell tells me that this very seriously injured young man is unaffected by those provisions. 12Given that the premises were residential premises, it seems that the case against the first defendant is likely to be weak. Moreover even if some evidence could be garnered that the party responsible for energising the copper pipe is the plumber, as Ms O'Sullivan's affidavit indicates, on any apportionment one would expect that the electrician responsible for the electrical work would bear a greater share of responsibility. Accordingly, even if the plaintiff won his common law case, which is by no means certain, any damages he recovered would be very substantially reduced by operation of the provisions of s 151Z(2)(d) of the Workers' Compensation Act 1987. 13It seems to me that given the difficulty of winning the case, the likely reduction in damages in that event and the very substantial benefits likely to be payable throughout the plaintiff's life under the statute, a decision to opt for those benefits is very easily justified. 14I find from the affidavit of the plaintiff's mother she has made that decision after having received the benefit of the written and oral advice of Mr Cranitch, as well as the advice of Mr Campbell and Ms O'Sullivan. 15To the extent to which it is necessary for me to express any view of this kind, I am well persuaded that the decision to remain on workers' compensation benefits is very sensible. 16Under s 76(3) of the Civil Procedure Act 2005, except with the approval of the court, there may not be any compromise or settlement of any proceedings brought by a person under a legal incapacity. 17The parties are desirous of settling the common law proceedings by entry of judgment for each of the three defendants with no order as to costs and have reached that agreement. 18Indeed, after having the benefit of the advice of senior counsel, the tutor instructed Miss O'Sullivan to file an offer of compromise in those terms. 19Each defendant accepted that offer and it seems that judgments against each defendant were entered in the Registry on 25 July 2014. Those judgments were entered without the approval of the court and accordingly are irregular within the meaning of r 36.15 Uniform Civil Procedure Rules 2005 (NSW). However, they are not nullities and whilst they remain on the record, they stand as valid, albeit defeasible judgments of this court: New South Wales v Kable (2013) 298 ALR 144 at [38]- [41] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ (Gageler J agreeing). 20Having come to the conclusion that the decision made by the tutor is in the best interests of the plaintiff and is, as I have said, eminently sensible, the question is whether it is necessary for me to set aside those irregular judgments or whether it is sufficient for me to express my approval of the settlement nunc pro tunc and to declare that the judgments are valid judgments of the court. 21In regard to that, Ms Moisidis of counsel, who appears for the first defendant, has provided me with a copy of the decision of the High Court of Australia in Guss v Veenhuizen (No 2) (1976) 136 CLR 47. By reference to the joint judgment of Gibbs AJC, Jacobs and Aickin JJ, I am satisfied that the court has ample power to correct or perfect its orders made irregularly nunc pro tunc, which powers may be exercised at least where the rights of third parties have not intervened. Accordingly, I think this is an appropriate case to make a declaration that the judgments entered on 25 July 2014 are regular nunc pro tunc. 22Accordingly, I record my satisfaction that the settlement of the proceedings is in the interests of the plaintiff and I approve of it. (1)I declare that the judgments entered on 25 July 2014 are valid nunc pro tunc. ********** Amendments 02 December 2014 - corrected paragraph numbering Amended paragraphs: 1-22 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: 02 December 2014