Hume v The Council of the King's School [2014] NSWSC 225 (12 March 2014)

Last Updated: 13 March 2014

Supreme Court New South Wales

Case Title:	Hume v The Council of the King's School
Medium Neutral Citation:	[2014] NSWSC 225
Hearing Date(s):	11 March 2014
Decision Date:	12 March 2014
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	1. Judgment for the defendant. 2. The defendant pay the plaintiff's costs and disbursements agreed at $10,000.
Catchwords:	PROCEDURE - settlement approval - order for settlement approval - order made
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Stuart Hume as tutor for John Hamilton Andrew Hume (Plaintiff) The Council of the King's School (Defendant)
Representation
- Counsel:	Counsel: Mr D Hooke SC (Plaintiff) Mr G Craddock SC (Defendant)
- Solicitors:	Solicitors: Beilby Poulden Costello (Plaintiff) Henry Davis York (Defendant)
File Number(s):	2009/297936
Publication Restriction:	None

JUDGMENT

1. By consent the parties seek an order for judgment for the defendant and an order that it pay the plaintiff's costs and disbursements, which are agreed to be $10,000.

2. The parties' settlement is subject to the Court's approval under s 76 of the Civil Procedure Act 2005 (NSW), which provides:

"76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity

(1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons:

(a) a person under legal incapacity,

(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,

(c) a person whom the court finds, during the course of the proceedings, to be incapable of managing his or her own affairs.

(2) The court may make a finding referred to in subsection (1) (c) only on the basis of evidence given in the proceedings in which it is made, and such a finding has effect for the purpose only of those proceedings.

(3) Except with the approval of the court, there may not be:

(a) any compromise or settlement of any proceedings to which this section applies, or

(b) any acceptance of money paid into court in any such proceedings,

as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).

(4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement.

(5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made.

(6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent."

3. The application is supported by an affidavit sworn by the plaintiff's solicitor Mr Poulden, who deposed to having received instructions in the matter from the plaintiff, Mr Hume in 2007. The proceedings were commenced in November 2009. The defendant school has always denied liability. There is no question that Mr Hume is suffering a legal incapacity.

4. On Mr Hume's instructions, various subpoenas were issued and Professor Phillips engaged to provide a medical legal report. The first report dealt with allegations of abuse, some of which are pursued in these proceedings. He there outlined events of which the plaintiff had no memory prior to 2005, which had returned for reasons which he could not identify. He gave a history of significant drug and alcohol abuse and various therapeutic programs he had participated in. Professor Phillips discussed the need to approach the return of traumatic memories in the course of group psychology therapy, where a strong message is sent that powerful memories will be recovered, described in the second report to be a "highly charged therapeutic situation". A number of psychiatric disorders were diagnosed. The second report dealt with hospital documents and their impact on Professor Phillips' opinions.

5. Mr Poulden deposed that since he began acting for Mr Hume, he has been admitted to psychiatric institutions on a number of occasions. Over time, Mr Poulden became concerned at his capacity to give instructions. He received increasingly erratic communications from Mr Hume. In July 2012, he was admitted to a long term care facility. His father was later appointed his tutor.

6. After receiving advice from senior and junior counsel, on the instructions of his tutor, Mr Hume's case was settled, subject to the Court's approval on the basis that the settlement represented his best interests.

7. On a confidential basis, I have had access to a written memorandum of advice provided by Mr Hooke SC, after he had met with Mr Hume. That explained the basis of the advice given that the settlement was in Mr Hume's best interest.

8. Unless positively convinced that the evidence establishes that the settlement will protect Mr Hume's interests, the Court's approval of the settlement should be withheld. That requires consideration of whether there is sufficient prospect of Mr Hume obtaining a more favourable judgment. That requires considerable weight to be given to the advice of his legal respresentatives.

9. I have given this settlement anxious consideration because of the serious nature of the allegations made in the statement of claim and the possible connection between those allegations and the serious disorders which Professor Phillips has diagnosed Mr Hume to be suffering and what his reports revealed as to Mr Hume's history. Nevertheless, given the caution with which the return of traumatic memories recovered in the course of a highly charged therapeutic situation must be approached, as Professor Phillips explained in his reports and the real problems which Mr Hume faces in proving that any part of what he has so remembered actually occurred, I have come to the conclusion that the settlement which has been reached protect his interests, as his legal representatives have advised and his tutor accepted. That there is no sufficient prospect of Mr Hume obtaining a more favourable judgment by pressing his case so as to warrant approval of the settlement being withheld, is established on the evidence.

10. In the result, the settlement must be approved. I order that:

1. Judgment for the defendant.

2. The defendant pay the plaintiff's costs and disbursements agreed at $10,000.

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