DM v Life Without Barriers [2016] NSWSC 1536

Supreme Court New South Wales

Medium Neutral Citation: DM v Life Without Barriers [2016] NSWSC 1536 Hearing dates: 27 October 2016 Date of orders: 01 November 2016 Decision date: 01 November 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Consent orders made. Catchwords: PROCEDURE – settlement approval – consent orders made

PROCEDURE – suppression orders – order sought suppressing identity of plaintiff – order made Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Cases Cited: Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570 Category: Principal judgment Parties: DM (Plaintiff) Life Without Barriers (Defendant) Representation: Counsel: Mr D Woodbury (Plaintiff) Ms R Bianchi (Defendant)

Solicitors: Paramount Compensation Lawyers (Plaintiff) Corrs Chambers Westgarth (Defendant) File Number(s): 2015/330066 Publication restriction: None

Judgment 1. The Court's approval of a settlement reached by the parties is sought, s 76 of the Civil Procedure Act 2005 (NSW), empowering the Court to give such approval, in cases where a person is under legal incapacity. 2. There is no question as to the plaintiff's incapacity, as he is aged under 18 years (see the definition of "person under legal incapacity" in s 3). The application is supported by affidavits sworn by his mother and his solicitor, Mr Marocchi, as well as advice given by his counsel, Mr Woodbury. 3. The proceedings concern a sexual assault by another minor, which the defendant, a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW), admits occurred. Other relevant circumstances admitted include that the plaintiff's assailant was in his mother's care for respite, she being an authorised carer under that Act. The defendant does not, however, admit the negligence alleged against it. Its liability for the assault is thus in issue. 4. In the circumstances the parties agreed that an order should be made, prohibiting the disclosure of the identity of the plaintiff, given the provision made in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) as to the publication or broadcast of names in a way that connects the person with criminal proceedings in circumstances there specified. 5. A similar question arose in Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570, where McCallum J concluded that powers given the Court by the Court Suppression and Non-Publication Orders Act 2010 (NSW) should be exercised, restricting disclosure of the identity of children involved in those proceedings, in order to give "coherence to provisions of the Children (Criminal Proceedings) Act" (see at [16]). Her Honour reached that conclusion having in mind the intention evinced by the Children (Criminal Proceedings) Act that the identity of a child who is a victim of a sexual assault should be protected and that the publication of his or her identity should be prohibited, as well as the identity of the mother of such a child, if its publication might lead to the identification of the child. 6. The evidence to which I will now turn, also satisfies me that an order should be made in this case under the Court Suppression and Non-Publication Orders Act, to ensure that the identity of the plaintiff is not inadvertently disclosed, contrary to what is intended by the Children (Criminal Proceedings) Act. 7. In evidence is a report of the psychiatrist Dr Akkerman, who diagnosed the plaintiff to be suffering major depression and considered that he had a guarded prognosis and would benefit from treatment by a psychiatrist. There is also a December 2011 expert certificate as to the results of his examination soon after the assault, in evidence. 8. In her affidavit the plaintiff's mother deposed to the circumstances in which the assault came to light and its consequences for the plaintiff; the terms of the settlement arrived at; the advice received about the settlement, namely that it was reasonable in the circumstances given the risks of the litigation; her own views and those of the plaintiff about the settlement, which were satisfaction with its terms and a preference for a settlement over what would be involved in a trial; her understanding of the consequences of its acceptance, including as to the possibility of pursuit of further claims against the defendant, deductions which must be made from the settlement sum; and the position as to legal costs. 9. As to costs it was confirmed at the hearing that the plaintiff would not have to bear costs additional to those revered from the defendant. 10. It is proposed that the settlement moneys be invested with the NSW Trustee and Guardian until the plaintiff's 18th birthday. Section 77(3) of the Civil Procedure Act 2005 (NSW) permits the making of such an order. 11. In his confidential advice the plaintiff's counsel explained the basis for his advice that the settlement arrived at was a reasonable one. I consider that advice to have a proper basis, in all of the circumstances there discussed. 12. As explained by Rothman J in Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 at [32], the Court's jurisdiction to approve a settlement is protective and "the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity". That is a matter for the Court to determine. 13. Having considered all that I have discussed, I am satisfied that the Court's approval of the settlement should be given. There is here a significant risk that the plaintiff will not succeed at trial. When that is considered together with what such a trial would involve, when compared to the obvious benefits which will flow to the plaintiff from the proceeds of the settlement, the conclusions that the settlement is beneficial to the plaintiff and so should be approved by the Court, are inescapable.