AEW v BW [2016] NSWSC 905

Supreme Court New South Wales

Medium Neutral Citation: AEW v BW [2016] NSWSC 905 Hearing dates: 16 and 25 May 2016 Date of orders: 14 July 2016 Decision date: 14 July 2016 Jurisdiction: Equity - Protective List Before: Lindsay J Decision: Orders made for management of the protected estate of a defendant by the plaintiff on terms that require consideration of: (a) whether a purported settlement of a claim for compensation made, on behalf of the defendant, under the Motor Accidents Compensation Act 1999 NSW should be approved as in the interests, and for the benefit, of the protected person; (b) whether costs and disbursements deducted from settlement moneys by the defendant's compensation solicitors should be approved as fair and reasonable; and (c) whether any (and, if so, what) steps should be taken on behalf of the defendant consequentially upon the answers to these questions. Catchwords: PROTECTIVE JURISDICTION – Claim for compensation under Motor Accidents Compensation Act 1999 NSW - Claimant unable to manage own affairs – "Person under a legal incapacity" within meaning of clauses 1.6.27 and 8.11.3 of Claims Assessment Guidelines – Claim by incapable person not "suitable" for administrative assessment within meaning of section 92(1)(b) of Motor Accidents Compensation Act – Court determination of claim required – Claim of incapable person "settled" without court approval or appointment of a protected estate (or financial) manager – Lawyers appropriated "settlement" moneys to costs without due authority or assessment – Regulatory procedures explained Legislation Cited: Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 NSW Guardianship Act 1987 Infants' Custody and Settlements Act 1899 NSW Minors (Property and Contracts) Act 1970 NSW NSW Trustee and Guardian Act 2009 NSW Protected Estates Act 1983 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: A v A [2015] NSWSC 1778 A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 Ability One Financial Management Pty Ltd and another v JB by his tutor AB [2014] NSWSC 245 Bobolas v Waverley Council [2012] NSWSC 126 CJ v AKJ [2015] NSWSC 498 C v W (No 2) [2016] NSWSC 945 Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Gibbons v Wright (1954) 91 CLR 423 Holt v Protective Commissioner (1993) 31 NSWLR 227 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 McD v McD [1983] 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 PB v BB [2013] NSWSC 1223 Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 Protective Commissioner v D (2004) 60 NSWLR 513 PY v RJS [1982] 2 NSWLR 700 QBE Insurance (Australia) Ltd v Mordue [2015] NSWCA 380 Re AAA [2016] NSWSC 805 Re Eve [1986] 2 SCR 388; 31 DLR (4th) 1 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Re P [2006] NSWSC 1082 Re R [2014] NSWSC 1810 Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 Smith bht Magnusson v NRMA Insurance Australia Ltd [2008] NSWDC 261 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236 Woolf v Snipe (1933) 48 CLR 677 Zurich Australian Insurance Ltd v MAA and Anor [2006] NSWSC 845 Texts Cited: Theobald, The Law relating to Lunacy (London, 1924) P.L.G. Brereton, "Acting for the Incapable – A delicate balance" (2013) 35 Aust Bar Rev 244 Category: Principal judgment Parties: Plaintiff: Son of Defendant Defendant: Incapable Person Representation: Counsel: Plaintiff: J Gumbert Defendant's Compensation Solicitors: P Mooney SC NSW Trustee: C Phang, Principal Legal Officer