White by her next friend Mary Jelen v Northern Sydney Local Health District [2024] NSWSC 1584

Supreme Court New South Wales

Medium Neutral Citation: White by her next friend Mary Jelen v Northern Sydney Local Health District [2024] NSWSC 1584 Hearing dates: 5 December 2024 Date of orders: 5 December 2024 Decision date: 05 December 2024 Jurisdiction: Common Law Before: Campbell J Decision: The Court notes: (1) That the parties have entered into a deed of settlement on 7 November 2024 to resolve these proceedings. (2) That the plaintiff discontinues the whole of the proceedings, subject to the deed of settlement and release, the filing of the notice of discontinuance and these orders. By and with the consent of the defendants and the next friend, the Court orders: (1) That the Court approves this settlement in accordance with s 76(4) of the Civil Procedure Act 2005 (NSW). (2) Pursuant to s 77(3) of the said Act, the settlement sum referred to in the deed of settlement and release is to be paid within 28 days of today's date to the NSW Trustee and Guardian as manager of the plaintiff's estate. (3) The sum agreed for legal costs and disbursements set out in cl 8(b) of the deed of settlement and release is to be paid to O'Brien Criminal and Civil Solicitors within 28 days of this order. Catchwords: CIVIL PROCEDURE – proceedings for persons under legal incapacity – settlement or discontinuance – court approval – wrongful imprisonment at a mental health facility – difficulties obtaining instructions due to the plaintiff's neurocognitive impairment – whether the settlement in the plaintiff's best interests – settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77 Guardianship Act 1987 (NSW) Limitation Act 1969 (NSW), ss 11, 14, 52 Mental Health Act 2007 (NSW) Cases Cited: Sarah White v The Local Health Authority & Anor [2015] NSWSC 417 Category: Principal judgment Parties: Sarah White by her next friend (Plaintiff) Northern Sydney Local Health District (First Defendant) State of New South Wales (Second Defendant) Representation: Counsel: S Beckett SC (Plaintiff) A McCarthy (Solicitor) (Defendants)

Solicitors: O'Brien Criminal and Civil Solicitors (Plaintiff) Crown Solicitor's Office (Defendants) File Number(s): 2022/20978

EX TEMPORE JUDGMENT (revised) 1. I am considering the approval of a settlement under the provisions of s 76 Civil Procedure Act 2005 (NSW). The plaintiff has sued each defendant for damages for the tort of wrongful imprisonment. For reasons which are apparent from a consideration of the statement of claim, the claim is divided into four causes of action in respect of four periods of alleged wrongful imprisonment. However, effectively, barring, I think, a single day, the plaintiff was continuously "incarcerated" within the first defendant's hospital for a period of 516 days between 13 November 2013 and 13 April 2015. My colleague Slattery J issued a writ of habeas corpus securing the plaintiff's discharge on the latterly mentioned date (see Sarah White v The Local Health Authority & Anor [2015] NSWSC 417 where given the plaintiff's neurocognitive impairment his Honour considered it appropriate to afford her the anonymity of a pseudonym which precedent I am content to follow.). 2. As Mr S Beckett SC, who appears for the plaintiff has pointed out to me, Slattery J dealt only with the fourth of the four periods pleaded in the statement of claim, which commenced with an order of the Mental Health Review Tribunal under the Mental Health Act 2007 (NSW) directing the plaintiff's release, which order was not acted upon by the defendants. I should say that the failure to comply with the order was not an act of contumelious defiance of legal process but rather proceeded on the basis of a claim of legal right or justification which was ultimately rejected by Slattery J. 3. There are complications in the matter which have been fully addressed by Mr Beckett in his confidential advice, which I have admitted into evidence as Confidential Exhibit A. 4. The plaintiff has proceeded by her next friend, and it seems to be common ground that she does suffer a form of a neurocognitive impairment, if I may be permitted to say so, due to a lifetime of the abuse of alcohol. Part of the complication of the case is no doubt explained by that neurocognitive impairment. This includes the difficulty experienced by Mr Beckett's instructing solicitor in securing the plaintiff's cooperation and compliance with necessary steps to be taken in the proper prosecution of such rights as may have been established at a hearing, had the matter not been compromised. 5. The other issues, it may be said, relate to the question of whether the defendants' defence can be made good at a hearing. Effectively, in old‑fashioned terms, the defendants have pleaded by way of confession and avoidance. They have, of course, accepted that the plaintiff was a patient at the first defendant's hospital contrary to her wishes for the period alleged but have pleaded that her "residence" there was lawful inasmuch as consent to her confinement was given by the Public Guardian, an official appointed under the Guardianship Act 1987 (NSW), who at some stage was the manager of the plaintiff's affairs, including her place of residence and the provision of medical treatment, under orders made in the New South Wales Civil and Administrative Tribunal ("NCAT"). 6. As Mr Beckett has pointed out, whether that defence can be overcome involves somewhat complex legal questions about the interaction of the Guardianship Act with the Mental Health Act. It is unnecessary for me to explore the nature of that legal question in any further detail. I am satisfied from the material before me that liability is a "live" issue. 7. There is also a question about the application of the Limitation Act 1969 (NSW). Both defendants have pleaded the statutory bar established by s 14 Limitation Act and there is no question, for reasons explained in the affidavits before me and in Mr Beckett's advice, that on the face of it the proceedings were commenced more than six years after the plaintiff's release pursuant to the orders made by Slattery J. 8. By way of reply, s 52 Limitation Act has been pleaded averring that the limitation period has been suspended by reason of the plaintiff's disability as defined by s 11 Limitation Act. As I have said, it seems to be common ground for present purposes that the plaintiff has a neurocognitive impairment but no admissions in that regard have been made. By their pleading, it is clear that the defendants have put that matter in issue. 9. While it may be said that disability can be established in the absence of expert evidence, normally expert evidence is a practical necessity to make good such a claim upon which the plaintiff would carry the onus. As I have said already, because of her impairment, the plaintiff has not been a compliant client in relation to taking the steps required of her by her legal advisors for the proper preparation of her case. It cannot be said that the limitation issue is entirely free of doubt. 10. Finally, there is the issue about the plaintiff's age. While some may regard her as a relatively young woman at the age of 67, there is no doubt that chronologically she is in the senior citizen range and her medical condition may well have an impact upon her life expectancy, at least in accordance with the actuarial life expectancy tables normally used for the purpose of litigation. It is worth pointing out that the case is not quite ready for trial despite the best endeavours of Mr Beckett and his instructing solicitor, and also, if I may say so, the plaintiff's next friend, who is an experienced social worker. Even if it was, it is likely, as Mr Beckett has pointed out, that the trial will be one of some length and in accordance with the usual availability of dates for long hearings in the Common Law Division, it would not be fixed for hearing until either the end of 2025 or the first half of 2026. I make those observations because I accept that the receipt of the proceeds of settlement now is in the plaintiff's best interests so that the funds can be applied for her maintenance and benefit by the manager of her financial affairs. There is some evidence that the plaintiff does not accept the need for a manager to have been appointed. If I may also say, that is not a very unusual circumstance and that is a matter for the decision of others, not the plaintiff, nor, as it happens, me. 11. In all the circumstances I am well satisfied that the proposed settlement is in the plaintiff's best interests and is for her benefit, and I have no difficulty in approving the compromise under the provisions of s 76(4) Civil Procedure Act. 12. I am satisfied from the affidavit of Ms Jelen, the next friend, and in particular Annexure A, that the NSW Trustee and Guardian has the management of the plaintiff's estate under orders made by NCAT under Guardianship Act and it is appropriate for me to order that the proceeds of the settlement be paid directly to the NSW Trustee without first being paid into Court. I record that the parties have chosen to enter into a deed of settlement and release which has been exchanged in escrow, pending approval; and that these proceedings, following this approval, are to be discontinued by the filing of the notice of discontinuance annexed to that deed. For completeness, I say that I am satisfied that, always subject to the Court's approval, the next friend has ample authority to compromise the litigation, including by entry into the deed of settlement and release. 13. In accordance with the form of consent order signed by the solicitors for the parties and by me, dated today, I make the following orders. The Court notes: 1. That the parties have entered into a deed of settlement and release on 7 November 2024 to resolve these proceedings. 2. That the plaintiff discontinues the whole of the proceedings, subject to the deed of settlement and release, the filing of the notice of discontinuance and these orders. By and with the consent of the defendants and the next friend, the Court orders: 1. That the Court approves this settlement in accordance with s 76(4) of the Civil Procedure Act 2005 (NSW). 2. Pursuant to s 77(3) of the said Act, the settlement sum referred to in the deed of settlement and release is to be paid within 28 days of today's date to the NSW Trustee and Guardian as manager of the plaintiff's estate. 3. The sum agreed for legal costs and disbursements set out in cl 8(b) of the deed of settlement and release is to be paid to O'Brien Criminal and Civil Solicitors within 28 days of this order. 1. The orders may be entered forth with and I direct that the seal of the Court may be affixed.

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