Weeks v Transpacific Cleanaway Pty Ltd [2015] NSWSC 1290

Supreme Court New South Wales

Medium Neutral Citation: Weeks v Transpacific Cleanaway Pty Ltd [2015] NSWSC 1290 Hearing dates: 7,8,9,10 July 2015; 3 September 2015 Date of orders: 03 September 2015 Decision date: 03 September 2015 Jurisdiction: Common Law Before: Campbell J Decision: I make orders in accordance with the consent judgment, a copy of which remains on file Catchwords: CIVIL – settlement between parties outside of court – finalisation Category: Consequential orders (other than Costs) Parties: Bruce Maxwell Weeks (Plaintiff) Transpacific Cleanaway Pty Ltd (Defendant) Representation: Counsel: Mr B. Camilleri (Plaintiff) Mr N. Maley (Defendant)

Solicitors: Stacks Goulburn (Plaintiff) Gilchrist Connell (Defendant) File Number(s): 2013/103397

EX TEMPORE judgment (REVISED) 1. This matter was listed before me between 7 – 10 July 2015. It is a claim for damages for personal injury suffered by the plaintiff in the course of his work. The defendant is the occupier of the premises at which he was performing work for his employer. 2. During the closing address of senior counsel for the defendant on 10 July 2015 I was asked to stand the matter in the list. I acceded to the application and upon my return I was informed that the matter had settled but that the settlement involved participation by a third party whom I took to be Comcare, the workers compensation insurer of the employer. I was informed the settlement was to be given effect by entry into a deed and the parties needed time to prepare that deed and finalise their arrangements, including the arrangements with the third party. 3. On that basis, I adjourned the proceedings until 14 August 2015. At that time, Mr Maley, solicitor, appeared and informed me that the arrangements between the parties had not yet been finalised, although he expected that would happen soon, and I was asked to further adjourn the matter to 28 August 2015 to which application I also acceded. When the matter was mentioned on 28 August 2015, a solicitor from Mr Maley's office mentioned the matter on behalf of both parties and informed me that the outstanding matters had been finalised but that the defendant's insurer, I inferred, had not yet drawn the cheque for the settlement moneys. I was asked to stand the matter over for a further 2 weeks, which application I refused. I indicated, as I had done at the outset, that I was commencing my leave today and that the matter would need to be finalised before I left on leave. Accordingly, I listed the matter for hearing today with a view to concluding the addresses of counsel, if the matters had not been finalised. 4. When the matter was called this morning, I was asked by Mr Camilleri of learned counsel, who is appearing for the plaintiff today, for a further adjournment until the settlement moneys were paid. He expected that that would happen within a very short period of time and, perhaps, as soon as 24 hours. He had not been informed that the matter was listed for hearing today. Mr Maley, solicitor, who appears for the defendant, as on prior occasions, informed me that the deed of compromise had been executed by the parties and that, according to the terms of the deed, his client was not obliged to pay the settlement of the funds until after the expiration of 28 days from the taking of other steps referred to in the deed. I inferred, however, that his client was doing what it could to expedite the payment. As I expressed to the legal representatives of the parties, it is unsatisfactory to me that the Court should be left hanging until the plaintiff's lawyers were satisfied that they had received the cheque. This seemed to me to be a misunderstanding of the legal position that has now evolved given that the deed, I am informed, has been executed. Subject to any special express term, which I was not directed to, it seems to me that the plaintiff's cause of action merges in the deed of compromise and that, if either party fails to observe a covenant creating obligations upon him or it under the deed, the remedy is not to reinvigorate these proceedings but, rather, to sue on the deed. That situation of course might vary according to any express term drawn to my attention, but, as I have said, there was no express term, for instance, that in default of payment the deed would be of no effect and the plaintiff's right would revive. 5. In those circumstances, it seemed to me unsatisfactory that the Court should decline to exercise its duty to determine litigation that had been brought before it by the parties. I might say that, in fairness, Mr Maley said to me that had I insisted on the matter proceeding today he would have submitted that the deed having been executed the plaintiff's proceedings were barred and that the plaintiff's rights were to be determined in accordance with the terms of the deed. That seems to me, I might say with respect, a perfectly conventional position subject, as I say, to any special express terms the deed may contain. 6. As it transpires, my concerns have been assuaged because I am informed that both legal representatives appearing today are instructed to sign a form of consent judgment finalising the proceedings which consent judgment has been handed up. It provides for the proceedings to be dismissed with no order as to costs. I make orders in accordance with the form of consent judgment signed by counsel for the plaintiff and the solicitor for the defendant, signed by me and dated today. The orders may be entered forthwith and I direct that the seal of the Court be affixed to the form of consent order and a copy be returned to each of the parties. I should add to that, I am satisfied that Mr Weeks is under no legal disability.