Application of Peter Hodges [2021] NSWSC 55 (on Caselaw) is of interest for its consideration of an application by a litigation tutor to the Court for directions or advice in respect of a potential settlement.
The Court distinguished the position of a tutor and a trustee. Advice was ultimately given in the form that the Court “was satisfied that it was in the interests of the defendant to settle the proceedings” on minimum certain terms ([26]).
However the Court went on to say at [28] – [30] and [33] that in nearly all if not all cases, such voluntary anticipatory applications will do no more than unnecessarily duplicate the mandatory application for approval required under s 76(3). Such duplication is not in accordance with the overriding purpose in s 56 of the CP Act:
- ….Although the Court has dealt with the present application, any perceived similarity between trustees and tutors should not lead to a similar increase in applications for directions by tutors, especially in relation to potential — as opposed to concluded — settlements.
- In my respectful view, while it is legally open to Mr Hodges to have made the present application, it represents an unnecessary departure from what should be the normal practice in relation to settlements involving parties under a legal incapacity. This is because of s 76(3) of the CP Act (set out in paragraph [10] above).
- Notwithstanding the advice I will give today, any settlement in the Primary Proceedings by reason of the acceptance of the Settlement Offer or any other terms which Mr Hodges is able to negotiate will still require the Court’s approval under s 76(3). That application will have to be made in the Primary Proceedings and not by a separate application such as that currently before the Court.