Kandil by his tutor Kandil v Halliday [2017] NSWDC 327

District Court New South Wales

Medium Neutral Citation: Kandil by his tutor Kandil v Halliday [2017] NSWDC 327 Hearing dates: 12 October 2017 Date of orders: 12 October 2017 Decision date: 12 October 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows: (1) Judgment for the plaintiff for the sum in paragraph 1. (2) Each party pay his or its own costs of these proceedings, save that the defendant will pay the report fee of Dr Akkerman. (3) Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW). (4) Note the provisions of paragraphs 3-7. (5) The net sum remaining after the deductions referred to in paragraphs 2 and 3, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff's 18th birthday. (6) Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff's condition in a manner consistent with the Code of Conduct, refer Dr Akkerman's report to the Health Care Complaints Commission. Catchwords: TORT – personal injury – minor brings action for damages for psychiatric injury following rear end collision – unsatisfactory medical evidence and delay by solicitor – whether settlement of the claim should be approved under ss 75 – 77 Civil Procedure Act 2005 (NSW) – settlement approved Legislation Cited: Civil Liability Act 2002 (NSW), s 31 Civil Procedure Act 2005 (NSW), ss 75-77 and 99 Cases Cited: Oshlack v Richmond River Council (1998) 193 CLR 72 Pascoe v Edsome Pty Ltd (No 2) [2007] NSWSC 544 Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 Category: Principal judgment Parties: Plaintiff: Nuh Kandil by his tutor Mohammad Abdullah Kandil Defendant: Maxine Halliday Representation: Counsel: Plaintiff: Mr J de Greenlaw Defendant: Ms J Gumbert

Solicitors: Plaintiff: Thomas Booler & Co Defendant: QBE In House Legal File Number(s): 2016/172920 Publication restriction: None

Judgment 1. This is an application for approval of a settlement in proceedings involving a motor vehicle accident where the plaintiff was a passenger in a motor vehicle. 2. The circumstances of the accident indicate that it was a rear end collision of a very minor nature. According to the general practitioner's records, the plaintiff was seen on the day of the accident and complained of pain in the neck and to the lower back, but when the plaintiff was next examined on 1 December and thereafter, there was no further reference to any physical injury. The plaintiff had no other treatment. 3. The difficulty in this case arises from the plaintiff's solicitors having referred the plaintiff to Dr Klaas Akkerman who examined the plaintiff on 15 May 2015 and provided a report stating the plaintiff suffered from significant psychiatric illness requiring two years of treatment including medication costing $400 per month. As Mr de Greenlaw notes in his helpful outline of submissions, the plaintiff was, most unfortunately, accompanied to that appointment by his father to that visit. It was from the father that Dr Akkerman said he obtained the majority of the history. However, it was later discovered that the father, a person who had suffered from bipolar mood disorder and who had separated from the plaintiff's mother due to domestic violence, had physically mistreated the children, including the plaintiff. 4. It would appear, from the reports of Professor Walter, a child psychiatrist, that not only was Dr Akkerman's diagnosis influenced by this but that his recommendations for subsequent treatment, such as taking antidepressant medication for two years and a whole person disorder of 22%, were not only entirely wrong but had nothing to do with trauma arising from the accident. 5. The next difficulty with this case has been not only the failure of Dr Akkerman to correctly interview and diagnose the plaintiff but the subsequent delay by the solicitor for the plaintiff. The proceedings came before Letherbarrow SC DCJ on 15 July 2016 when his Honour refused to approve the settlement and made the following orders: 1. Note that on the basis of the plaintiff's psychiatric report the Court is not prepared to approve the settlement. 2. Note that the plaintiff and/or defendant wishes to obtain further medical evidence. 3. Stand the summons over to Infant Approvals list on Friday, 16 September 2016 at 9am. 1. This led to two problems. The first is that this is one of a number of applications when judges of this Court, face with a report from Dr Akkerman asserting that a child requires or could require two years of medication at $400 a month and has a whole person impairment in excess of the threshold (in the present case, 22%), but the case is proposed to be settled for a relatively small sum of money. It was for this reason Letherbarrow SC DCJ was not prepared to approve the settlement. 2. The delay continued. Although the application for approval was relisted by Letherbarrow SC DCJ for 16 September 2016, it had to be taken out of the infants' settlement list by me in Chambers, by reason of the plaintiff's unreadiness. 3. The application was again unready to proceed on 28 October, and, despite being stood over to 10 February, an adjournment of four months, was still not ready on 10 February 2017. On that occasion, I warned that if the plaintiff was still not ready on the next occasion, the plaintiff was to show cause why the proceedings should not be struck out and reserve the costs. 4. Notwithstanding that warning, the matter was still not ready on 26 May, when I directed the former solicitor for the plaintiff, Mr Marcel Joukhador, to provide an affidavit giving an explanation of failure to comply with the practice note and with the delay generally in these proceedings. 5. The application came before me again on 11 August 2017 when the affidavits in question had still not been supplied within sufficient time and I stood this and three other applications with similar problems over to the following Tuesday, with an early out of court hour listing, in anticipation that they would be ready. 6. What happened on 15 August 2017 was that, in this and other matters involving reports by Dr Akkerman, proceedings were stood over to today so that I could determine the degree to which there was some more significant problem in relation to the reports of Dr Akkerman. In this particular case, I was conscious of the fact that the List Judge, Letherbarrow SC DCJ, had already rejected the settlement once and, in those circumstances of course, very great caution is to be used when the matter comes before the Court a second time in circumstances where the settlement sum remains the same. 7. The application comes before me today on the basis that the subsequent obtaining of reports by Professor Walter and by the plaintiff's treating psychologist, Rubina Khan, now before the Court, make clear that the situation is that the plaintiff does in fact have symptoms of post traumatic, trauma stress disorder, and other actionable claims for the purposes of s 31 Civil Liability Act 2002 (NSW). However, these injuries do not relate to the motor vehicle accident but to the domestic violence issues in the home. 8. In those circumstances, the difficulties caused by Dr Akkerman's report tend to fade away to a degree, in terms of my being able to approve the settlement, in that the plaintiff does in fact suffer from some significant problems but these are attributable to other causes and being treated as such. This does not, however, excuse the former solicitor's delay. 9. I am indebted to Ms Gumbert for her helpful submissions as to what should be done in these circumstances and to the parties for their practical resolution of the costs issue by some consent orders which I am proposing to approve. Ms Gumbert refers to the decision of Harrison AJ in Pascoe v Edsome Pty Ltd (No 2) [2007] NSWSC 544 at [5] and submits that the appropriate order to make is to make an order for the plaintiff to pay the costs of the seven previous directions hearings in the infant settlement list and before the list judge but with a provision to make appropriate orders to enable costs to be sought from the former solicitor for the plaintiff. 10. In this regard, I should indicate that I accept and agree with Ms Gumbert's observations about the circumstances in which costs may be awarded against a successful party where there is some sort of misconduct (Oshlack v Richmond River Council (1998) 193 CLR 72 at [69]) and that this includes unnecessary protraction of Court proceedings. 11. The difficulty is, however, that I am able to make orders against the solicitor who is asserted to be responsible for the delay, or to entertain any application under s 99 Civil Procedure Act 2005 (NSW) unless notice needs to be given. 12. One of the difficulties about making orders of this sort is that it might appear that the tribunal of fact making such an order appears to be showing a mind already made up even if only provisionally. While it might be said that the circumstances in which any practitioner has listed proceedings for infant approval between 15 July 2016 and 15 August 2017 is, of itself, indication that there is something seriously wrong, there may well be explanations, and the solicitor in question is to be given the opportunity to do so. 13. In those circumstances, it is appropriate for me to indicate that if the application is brought, it should be brought in the form of "show cause" application, in that I am satisfied that Ms Gumbert has put before me sufficient information to warrant the bringing of any application under s 99 for costs orders against the former solicitors. 14. The remaining issue is Dr Akkerman's fees. The proposed settlement is that each party will agree to pay their own costs with the proviso that the defendant pay the report fee of Dr Akkerman. That saves me from having to make any determination of this issue, but I have outlined what the position would have been if the parties had not come to this sensible resolution of the issues. 15. It may well be that these are issues which need to be visited by some other body such as the Legal Services Commission and/or the Health Care Complaints Commission. Having regard to the history of the plaintiff's treatment by Dr Akkerman, and conformably with the procedure set out in Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16] – [18] per Basten JA, I have made an order referring the contents of Dr Akkerman's report to the Commission. 16. For the above reasons, I am satisfied, having regard to the history of this matter, that it is appropriate for each party to pay their own costs, but that does not mean that the costs should be coming out of the plaintiff's pocket. 17. Accordingly, the orders I propose to make will be the usual orders for approval of a settlement, and I will grant leave to the defendant.

Orders 1. Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), approve the settlement set out in the Consent Order filed in court today and make orders as follows: 1. Judgment for the plaintiff for the sum in paragraph 1 [note: this figure is entered on JusticeLink but not disclosed in this judgment]. 2. Each party pay his or its own costs of these proceedings, save that the defendant will pay the report fee of Dr Akkerman. 3. Note the undertaking of Mr Naushad Husaini, the current solicitor for the plaintiff, not to make any application to the NSW Trustee & Guardian for legal costs and that if any application is made in relation to the costs of the previous solicitor, Thomas Booler Lawyers (per Mr Marcel Joukhador), the parties are to have liberty to seek a personal costs order against those solicitors pursuant to s 99 Civil Procedure Act 2005 (NSW). 4. Note the provisions of paragraphs 3-7. 5. The net sum remaining after the deductions referred to in paragraphs 2 and 3, namely the sum in paragraph 4, is to be paid direct to the NSW Trustee & Guardian for investment until the plaintiff's 18th birthday. 6. Having regard to the manner in which the report of Dr Akkerman has failed to diagnose the plaintiff's condition in a manner consistent with the Code of Conduct, refer Dr Akkerman's report to the Health Care Complaints Commission.

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