Citation: Lampion v Lampion; Lampion by tutor Lampion v Lampion [2015] NSWDC 32
Court: District Court of New South Wales
Date: 10 February 2015
Judge: Gibson DCJ
Background
A mother and her daughter commenced three sets of civil proceedings against the defendant, the daughter's grandfather, for damages arising from his sexual abuse of the daughter between September and December 2010. The defendant had been convicted of those offences and was serving a seven-year prison sentence at the time of the hearing. The proceedings also included a claim under the Compensation to Relatives Act 1897 (NSW) following the suicide of the daughter's father, which the plaintiffs alleged was causally connected to the discovery of the defendant's conduct.
The matters were listed for a three-day hearing in November 2014. On the eve of and morning of the hearing, the parties exchanged correspondence constituting an offer and acceptance. The trial judge was told the matter had settled, the hearing dates were vacated, and the proceedings were referred to the Infants Settlement List for approval of the settlement sum relating to the minor plaintiff.
When the approval application came before the court, the defendant resiled from the settlement. He claimed the proceedings were not in fact settled, and appeared to raise his wife's asserted non-consent to the terms (which required mortgages over properties) as a ground of objection. The plaintiffs brought a motion under section 73 of the Civil Procedure Act 2005 (NSW) seeking orders enforcing the settlement and approval of the settlement sum for the minor plaintiff.
Legal Issues
- Whether a binding settlement had been reached on the correspondence exchanged on 3 and 4 November 2014
- Whether any asserted refusal by the defendant's wife (who was not a party) was a genuine basis for the defendant's non-compliance, or had in fact occurred
- Whether the court should exercise its power under section 73 of the Civil Procedure Act 2005 (NSW) to make orders giving effect to the settlement
- Whether the settlement sum for the minor plaintiff should be approved under sections 75 to 77 of the Civil Procedure Act 2005 (NSW)
Decision
Gibson DCJ found that a binding settlement had been reached through the exchange of correspondence on 3 and 4 November 2014. The trial judge's notation that the matter was settled, together with orders referring proceedings to the Infants Settlement List, was consistent with this conclusion. The defendant called no evidence at the hearing of the motion, and no submission was made by the defendant's wife, who had been served but chose not to participate.
The court rejected the defendant's argument that his wife's alleged non-consent provided a basis for him to resile from the settlement. The defendant adduced no evidence of any actual refusal by his wife, and the court applied the principle from Jones v Dunkel (1959) 101 CLR 298 in drawing an inference adverse to the defendant from his failure to call her or place any evidence before the court. The court noted that the defendant's own conduct at prior hearings was inconsistent with any genuine dispute about settlement being on foot.
On the proper construction of the settlement correspondence, Gibson DCJ was satisfied that a concluded agreement had been reached, consistent with the principles in Masters v Cameron (1954) 91 CLR 353. The court determined it was appropriate to enforce the settlement by exercising its power under section 73 of the Civil Procedure Act, rather than leaving the plaintiffs to pursue separate enforcement proceedings.
The settlement sum of $200,000 for the minor plaintiff Elise was approved under sections 75 to 77 of the Civil Procedure Act, having regard to the expert evidence describing the severity of her injuries, including psychiatric assessments characterising her experiences as a "catastrophic trauma." The settlement sum was ordered to be paid directly to the NSW Trustee and Guardian for investment until the plaintiff's 18th birthday. A separate judgment of $170,000 was also entered for the mother.
Orders Made
In relation to the mother's proceedings (2013/210386 and 2013/210391):
- Orders made pursuant to section 73 of the Civil Procedure Act 2005 (NSW) declaring the proceedings settled and giving effect to the agreed terms
- Defendant ordered to pay the plaintiffs' costs of the notice of motion, including costs from 18 November 2014
- Freezing orders (made by Elkaim DCJ on 19 December 2014) continued until further order
- One set of proceedings discontinued, with each party to pay their own costs of the proceedings proper
- Matters stood over part-heard to 11 February 2015 for the making of further orders including freezing orders
In relation to the minor plaintiff's proceedings (2013/210388):
- Settlement approved pursuant to sections 75 to 77 of the Civil Procedure Act 2005 (NSW)
- Judgment for the minor plaintiff for $200,000 together with interest from 4 February 2015 under section 101 of the Civil Procedure Act
- Each party to pay their own costs of the proceedings
- Settlement sum directed to be paid to the NSW Trustee and Guardian for investment until the plaintiff's 18th birthday
- Defendant to pay the plaintiffs' costs of the notice of motion, including costs from 18 November 2014
- Freezing orders continued until further order
- Matter stood over part-heard to 11 February 2015 for further orders
Key Takeaways
- A concluded settlement was found on the basis of an offer and acceptance exchanged by solicitors in correspondence, consistent with the principles in Masters v Cameron, where the defendant could point to no credible basis on which the agreement remained conditional or incomplete.
- The District Court's power under section 73 of the Civil Procedure Act 2005 (NSW) was exercised to make orders giving effect to a settlement that had already been communicated to the trial judge, without requiring the plaintiffs to commence separate enforcement proceedings.
- Where a defendant fails to call an available witness, and relies on that witness's alleged conduct as a substantive argument, Jones v Dunkel may support an adverse inference against that defendant.
- Under sections 75 to 77 of the Civil Procedure Act 2005 (NSW), court approval is required before a settlement binding a minor plaintiff can take effect; approval was granted here following consideration of the expert evidence on the nature and extent of the minor's injuries.
- Settlement sums approved on behalf of minor plaintiffs are directed to the NSW Trustee and Guardian for investment until the minor turns 18, rather than being paid directly to the minor or their tutor.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW), ss 73, 75, 76, 77, 101
- Compensation to Relatives Act 1897 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), r 12.3
Cases:
- Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
- Grave v Blazevic Holdings Pty Ltd [2012] NSWCA 329
- Hills Industries Ltd (t/as Hills Eco) v Hiley [2012] SADC 148
- Holland by next friend Holland v The Minister for Health [2001] WADC 215
- Humphris-Clark v Lazaridis [2010] NSWSC 318
- Jones v Dunkel (1959) 101 CLR 298
- Love & Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475
- Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181
- Masters v Cameron (1954) 91 CLR 353
- Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310