Davis by her tutor the Protective Commissioner of NSW v Willis & Anor [2006] NSWSC 87

Davis by her tutor the Protective Commissioner of NSW v Willis & Anor [2006] NSWSC 87

The 1987 settlement was executed by authorised legal representatives, the defendants paid the verdict sum, and the money was accounted to the plaintiff. There was no evidence that any necessary Court approval was not given. The proceedings were therefore at an end, so service on Abbott Tout could not constitute service on the second defendant. In any event, there was no evidence that Insurance Australia Ltd knew the second defendant's whereabouts or that service on it would bring the motion to his notice. The requested orders were refused and the motion was dismissed.

Jurisdiction
Australia
Judgment Date
16 February 2006
Procedural Posture
Civil Motion in Personal Injury Damages Proceedings / Application to Set Aside Terms of Settlement and for Service or Substituted Service of Amended Notice of Motion
Outcome
Motion dismissed
Legal Topics
['settlement of Proceedings' 'persons Under Disability' 'court Approval of Compromise' 'service of Process' 'substituted Service' 'compulsory Third Party Insurance']
['civil Procedure' 'personal Injury Damages' 'negligence'] ['settlement of Proceedings' 'persons Under Disability' 'court Approval of Compromise' 'service of Process' 'substituted Service' 'compulsory Third Party Insurance']

Case Brief

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Procedural Posture

Civil Motion in Personal Injury Damages Proceedings / Application to Set Aside Terms of Settlement and for Service or Substituted Service of Amended Notice of Motion

Legal Issues

  1. 1 ['Whether service of the amended notice of motion on Abbott Tout solicitors effected service on the second defendant.' 'Whether the 1987 settlement could be treated as ineffective because the plaintiff was allegedly a disabled person and the settlement was allegedly not approved by the Court.' 'Whether substituted service on Insurance Australia Ltd should be ordered for the second defendant.']

Ratio Decidendi

The 1987 settlement was executed by authorised legal representatives, the defendants paid the verdict sum, and the money was accounted to the plaintiff. There was no evidence that any necessary Court approval was not given. The proceedings were therefore at an end, so service on Abbott Tout could not constitute service on the second defendant. In any event, there was no evidence that Insurance Australia Ltd knew the second defendant's whereabouts or that service on it would bring the motion to his notice. The requested orders were refused and the motion was dismissed.

Court Disposition

Motion dismissed

Orders

  • ['Orders 3, 4 and 5 in the amended notice of motion declined.' 'Motion dismissed to that extent.']