By Lawyers For Lawyers
The conduct of a Supreme Court proceeding followed sequentially from settling it early to going to court.
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Where the plaintiff is a person who by reason of injury, disease, senility etc or otherwise is incapable of managing her or his affairs, the person must have a litigation guardian appointed under r 15.03 and any compromise of the claim must be approved by the Court r 15.08. Approval is not automatic and the solicitor or barrister appearing on the approval application should be prepared to place all the relevant material before the court and answer the judge’s enquiries as to the form and quantum of the settlement.
Application may be made at the trial rather than as a separate application: r 15.08(3) and the judge may dispense with the application.
The procedure for obtaining approval is as follows:
If an application for approval of a compromise on behalf of a person under a disability is either refused or not ready to proceed, the action will be returned for management. If the action has already been allocated an arbitration or trial date, that arbitration or trial will, unless the court otherwise orders, proceed.
The test for approval of the compromise appears to be:‘[T]he question is whether the prospect of getting a greater sum by rejecting the offer is good enough to outweigh significantly the risk of not getting any more.’: Elliott v Diener (1978) 21 ACTR 21.
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