Supreme Court New South Wales Medium Neutral Citation: AB by her tutor MB v State of New South Wales and Anor [2018] NSWSC 765 Hearing dates: 1 May 2018 Date of orders: 01 May 2018 Decision date: 01 May 2018 Jurisdiction: Common Law Before: Johnson J Decision: Settlement approved under s.76 Civil Procedure Act 2005 and orders made in accordance with Consent Judgment. Catchwords: CIVIL - approval of settlement - claim by person under legal incapacity - failure of NDIS to indicate whether payback would be sought - unsatisfactory that tutor and disabled person not have certainty on this issue - Court states that it would be highly undesirable for NDIS to seek payback in this case - settlement approved - consent orders made Legislation Cited: Civil Procedure Act 2005 Cases Cited: --- Texts Cited: --- Category: Principal judgment Parties: AB by her Tutor MB (Plaintiff) State of New South Wales (First Defendant) South Eastern Sydney Illawarra Health Service (Second Defendant) Representation: Counsel: Ms K James (Plaintiff) Ms K Sant (First and Second Defendants) Solicitors: AC Lawyers (Sydney) (Plaintiff) Crown Solicitor's Office (First and Second Defendants) File Number(s): 2014/277910 Publication restriction: --- Judgment 1. JOHNSON J: Before the Court, is an application for approval of a proposed settlement of proceedings commenced on behalf of a person under legal incapacity. The application is made for the purposes of s 76 Civil Procedure Act 2005. 2. The proceedings are brought in the name of AB by her tutor MB, against the First Defendant, the State of New South Wales, and the Second Defendant, South Eastern Sydney Illawarra Health Service (now known as the Illawarra Shoalhaven Local Health District). 3. AB was born in 1979. She was diagnosed, as a young child, with congenital microcephaly and a consequential intellectual disability. 4. The evidence before the Court on this application reveals that her mother, MB, has acted at all times in the best interests of AB over many years. For a period of time, AB could be managed at home but, in 1999, MB made the difficult decision that she could not manage AB's behaviour in the family home and AB commenced to live in full-time respite care. 5. The proceedings to which this application relates are the subject of an Amended Statement of Claim filed on 16 March 2015, in which the Plaintiff sues the Defendants, effectively, in negligence. 6. It is not necessary, for the purpose of this application, to recite in any detail the factual background to the claim. It relates, in particular, to the care and management of AB in facilities over a number of years. The position was reached, in about 2011, when an independent investigation was carried out, which led to an apology being given to MB by relevant authorities as to the things which had occurred with AB whilst in care. I say no more than that about the particular factual circumstances of the case. 7. It is clear that MB, for many years, has been a strong advocate in the interests of AB and has done everything she could to assist her and protect her interests and that includes the present proceedings. 8. As would be clear, it is because of AB's health difficulties that she is under a legal incapacity and, thus, her mother acts as tutor for the purpose of these proceedings. 9. It appears that a mediation was held in December 2016, in which Mr Michael Fordham SC acted as mediator. The matter was not capable of resolution on that occasion. There were some issues of particular difficulty including a claim for future care, which had problems with respect to its sustainability in the case. 10. There was a change of solicitor on behalf of the Plaintiff and Mr Andrew Christopoulos assumed conduct as the solicitor on the record in May 2017. 11. There are affidavits, both open and confidential, from Mr Christopoulos before the Court on this application together with affidavits, both open and confidential, from MB. These reveal the steps taken on behalf of the Plaintiff since Mr Christopoulos has become the solicitor on the record. 12. A settlement conference took place on 30 October 2017, which led to ongoing negotiations. An offer of compromise was made on behalf of the Defendants on 13 November 2017. 13. The application before the Court is for approval of the settlement in a financial sum, which I will not reveal in this judgment. It is the wish of the parties that the terms of the settlement not be disclosed. It is not appropriate, in those circumstances, to refer to the quantum of the proposed settlement. 14. What can be said, however, is that there is a thorough and helpful advice of Ms Kassie James of counsel, who appears for the Plaintiff, which is part of the confidential material. The advice of Ms James, dated 25 April 2018, provides a detailed analysis of the issues concerning both liability and quantum. I note that Ms James, after a careful examination of the issues, recommends settlement in the terms proposed in the settlement for which approval is sought. 15. In addition, the affidavits of MB assist the Court. The tutor supports the proposed settlement of the matter. 16. The litigation is, no doubt, a difficult process for all concerned. I am satisfied, in particular, in light of the advice of Ms James and the affidavits of Mr Christopoulos and MB, that the proposed settlement is a reasonable and appropriate one. There are always risks in litigation. There is no certainty as to outcome. The risks of litigation, with respect to liability and quantum, are thoroughly assessed in the advice of Ms James. 17. I note that AB has been a participant in the National Disability Insurance Scheme ("NDIS") since July 2017. There is, on the face of it, an open question as to whether the NDIS will make any claim to recover monies as a result of this settlement. It would seem that the NDIS has not and, in practice, will not provide a committed position, at this point, in that regard. Accordingly, it is necessary for the Court to consider the approval application with a measure of uncertainty on that issue. 18. There is a detailed description of matters concerning the NDIS issue in the material before the Court. Past experience may suggest that the NDIS will not seek to recover any sum but that is a matter of uncertainty, at this point. 19. Although it is a matter for the NDIS and not the Court, having considered all the material before the Court on this application, I consider it would be highly undesirable if the NDIS were to seek to make any claim arising from this settlement. If it is of any assistance to the Plaintiff, in the process being undertaken before the Court, I am content for what I am presently saying to be communicated to the NDIS, so that it can be taken into account. 20. It is highly desirable that persons in the position of MB and AB have some certainty as to their position when an application such as this is brought before the Court. For my part, that ought lead to an appropriate decision by the NDIS not to pursue any sum against them. 21. In exercising the present function of the Court, I bear in mind that the issue is whether the settlement proposed and, in particular, the amount involved is in the interests of the Plaintiff, AB, bearing in mind the risks of litigation which would continue if the litigation was not settled. It is the interests of AB which the Court must consider. The Court, of course, is greatly assisted in reaching a view about that by the detailed account of MB as to both the past and the present position concerning AB. 22. As I have said, I have been provided by the Plaintiff, on a confidential basis, with documents including the advice of Ms James and also a confidential affidavit by MB, which serves to fortify the conclusion which I have reached. 23. Accordingly, for the purpose of s.76 Civil Procedure Act 2005, I approve the settlement proposed by the parties. 24. There are two documents which have been provided to the Court in that respect. The first is a Consent Judgment, which has been signed by the legal representatives for the parties, and there is a form of Judgment Order which the Court is invited to make as part of the settlement of the proceedings. It is appropriate that I execute the Consent Judgment first and then make the orders as sought. 25. I make orders and note matters in accordance with paragraphs 1 through to 11 of the Judgment Order, which I have signed and dated today. ********** 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: 25 May 2018