Rattray v Forman

[2003] NSWSC 228

CITATION:	Rattray v Forman & Anor [2003] NSWSC 228
HEARING DATE(S):	27 March 2003
JUDGMENT DATE:	27 March 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	1. Terms of Settlement noted; 2. Orders pursuant to paragraphs 1, 2, 4 & 7-10 (inclusive) of the Notice of Motion; 3. Order that the Affidavits of SJ Rattray & D Geddes be placed in a sealed envelope and marked "Not to be opened without the Approval of a Judge of this Court"; 4. Further direction that the file of papers entitled "Approval Documentation" be returned to Counsel for the Plaintiff; 5. Direct also the return of Volumes 1 & 2 being the "Plaintiff's Exhibits Bundle" and a further Volume called "Defendant's Exhibits Bundle".
CATCHWORDS:	Practice & Procedure - approved settlement - confidentiality of plaintiff's materials
PARTIES :	Matthew John Rattray by his next friend Stephen John Rattray Ralph W Forman Health Care Corporation Pty Ltd t/a Bankstown Private Hospital
FILE NUMBER(S):	SC 12096/02
COUNSEL:	Mr L Levy SC with Mr J Lonergan for the Plaintiff Mr P Greenwood SC with Mr M McHugh for the Defendants
SOLICITORS:	Foulsham & Geddes Solicitors for the Plaintiff Blake Dawson Waldron for the First Defendant Ebsworth & Ebsworth Solicitors for the Second Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List

Sperling J

Thursday, 27 March 2003

12096/92 Matthew John Rattray by his next friend Stephen John Rattray v Ralph W Forman & Anor

Judgment – On application by plaintiff's counsel to tender various documents & affidavits.

1 His Honour: The material before the court includes a memorandum of advice by counsel for the plaintiff in relation to the proposed settlement. It also includes what is described as a confidential quantum assessment prepared by the plaintiff's legal advisers.

2 The documentary evidence before the court satisfies me that the plaintiff's case has been prepared with great care and that all relevant considerations have been taken into account in the assessment of realistic possible results were the matter to proceed to trial.

3 There are aspects of the case which involve a large margin of possibility so far as assessment of damages is concerned. I am satisfied that the settlement proposed is within the range of possible outcomes and that the settlement should be approved. I accordingly approve the settlement and I congratulate the parties on having reached an accommodation. I note the terms of settlement which have been filed.

4 I make orders pursuant to the following paragraphs of the notice of motion: paragraphs 1, 2, 4 and 7-10 inclusive.

5 I come then to the matter of an application by counsel for the plaintiff, opposed by counsel for the defendants, that the affidavits of SJ Rattray and D Geddes, both sworn on 26 March 2003, should be sealed with a direction, it is implied, that they are only to be opened with the authority of a judge of this court.

6 Counsel for the plaintiff also requests the return to him of the file of approval documents, which includes not only copies of the affidavits which have been read but also the confidential quantum assessment to which I have referred and a damages tabulation referred to in the affidavit of SJ Rattray. The same considerations apply in relation to the sealing of the affidavits and the return of that file.

7 Opposition to the course sought by the plaintiff's counsel is based upon the time-honoured principle that the proceedings of the court should be conducted in public and that evidence tendered to the court should be available publicly. The public interest in open justice should not be underrated. It is one of the cornerstones of our system of justice.

8 On the other hand, there are competing public interests which are well recognised in a variety of circumstances and which in a variety of circumstances are held to prevail.

9 In the present connection, I apprehend that there is a public interest in facilitating settlements and in particular the settlement of matters requiring the approval of the court and in the court being informed of all relevant matters which should be brought to the court's attention in deciding whether to approve such a settlement. Such matters may include in particular cases personal considerations which the family of a litigant may prefer to keep confidential but which should be brought to the attention of the court as considerations relevant to the question of approval. Disclosure of such matters is to be encouraged, not repressed.

10 In that context, it is my view that it should generally be accepted that, in cases where approval is sought for a settlement, the opportunity should be provided for frank disclosure, with confidentiality, of considerations which have been brought to bear on a decision to settle at a particular figure.

11 Cases vary, and what I have said would not necessarily be the completely exhaustive rule of practice, but in this case that approach should be adopted.

12 I, accordingly, order that the affidavits of SJ Rattray and D Geddes be placed in a sealed envelope and marked "Not to be opened otherwise than with the approval of a judge of this court".

13 I further direct that the file of papers entitled "Approval Documentation" be returned to counsel for the plaintiff.

14 I also direct the return of volumes 1 and 2, being the plaintiff's exhibits bundle, and a further volume called "Defendant's Exhibits Bundle".

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Last Modified: 04/02/2003