Herbert by her tutor Meehan v Tamworth City Council [2015] NSWSC 103

Supreme Court New South Wales

Medium Neutral Citation: Herbert by her tutor Meehan v Tamworth City Council [2015] NSWSC 103 Hearing dates: 10 February 2015 Decision date: 23 February 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraph 32. Catchwords: PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 Health and Other Services (Compensation) Act 1995 (Cth), s 24 Cases Cited: Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 Permanent Trustees v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1 Category: Principal judgment Parties: Maddy Herbert (Plaintiff) Tamworth City Council (Defendant) Representation: Counsel: P Semmler QC (Plaintiff)

Solicitors: McCabe Partners Lawyers (Plaintiff) Mills Oakley Lawyers (Defendant) File Number(s): 2002/69148

Judgment 1. Before the Court is an application for approval of a settlement brought pursuant to s 76 of the Civil Procedure Act 2005 (NSW) (the Act). Approval is required because the plaintiff, a young woman aged 21 years, is (at least, on her case) a person who suffers under a legal incapacity. That is said to arise from a significant cognitive and emotional impairment, itself said to arise from a traumatic brain injury that she suffered many years ago. 2. A foreshadowed application for the appointment of fund managers was not pressed before me. Rather, it was submitted at the hearing that I should make an order referring that question to the Protective List of the Equity Division of this Court for determination. 3. I was helpfully provided with a set of proposed orders that had been signed by the solicitor for the plaintiff on 6 February 2015. Proposed order nine is a confidentiality order. At the hearing I was not requested by either party to refrain from publishing my judgment on New South Wales Caselaw, to use pseudonyms in my judgment, or the like. I was requested by both parties to refrain from referring explicitly to the proposed settlement sum, and to refer to it merely by reference to the document setting out the proposed orders. I am content to accede to that request, although the formal order entered must be explicit. 4. Queen's Counsel who appeared for the plaintiff relied upon a number of documents. The first was a recent report of Dr Jungfer, a psychiatrist with a special interest in brain injury. 5. The second was a legal opinion from junior counsel (with the concurrence of senior counsel) that was marked as a confidential exhibit. 6. The third was an affidavit of the plaintiff herself, expressing her own understanding of the proposed settlement, and her contentment with it. 7. The fourth was an affidavit to similar effect from the tutor of the plaintiff, her mother. 8. The fifth was an affidavit of the solicitor for the plaintiff that annexed to it a large number of medical reports. They provided me with a sound understanding of the history of the matter, and the divergent views of the many medical experts who have been qualified by both parties. 9. The sixth and final document was an affidavit of the grandfather of the plaintiff to do with his readiness and suitability to act as a manager of any funds received by the plaintiff. In light of the fact that that foreshadowed order was not pressed, it was relied upon only in support of the proposition that, if I were content to approve the settlement, I should make the referral order.