Nominal Defendant: reasonableness and counsel’s advices

 Nominal Defendant v Buchan [2011] QSC 364

The Nominal Defendant sought recovery of damages paid on a compromise pursuant to s 60(1) of the Motor Accident Insurance Act. The issue was whether it was reasonable to settle the claim on the advice on the balance of probabilities that Mr Buchan was the driver. Leaving the particular circumstances of the evidence of the case which the Chief Justice found to be sufficient to warrant such a finding, his Honour noted generally in relation to the advices relied upon to compromise:

[8] The only live issue before me was whether it was reasonable for the plaintiff to compromise the dependency claim on the basis of a likely finding, were the matter to go to trial, that the defendant Buchan was the driver of the motor cycle. (There was no challenge to other matters, such as the reasonableness of the amount of the settlement.) One assesses that outstanding issue objectively, having regard to the material available to the party in the position of the plaintiff (cf. Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603, 653). In Nominal Defendant (Qld) v Langman [1988] 2 Qd R 569, 572 Thomas J suggested the court “should [not] be too astute to make microscopic examinations of compromise arrangements which save costs and which avoid the perils of litigation and which prima facie seem sensible”. I agree with that, although the ultimate question is whether settling on this basis was reasonable. Applied to this situation, that translates to whether or not it was reasonable to rely on legal advice anticipating a finding on the balance of probabilities that Mr Buchan was the driver.

[9] In agreeing to this compromise, the plaintiff acted on such legal advice. As Hayne J said in Unity Insurance Brokers, supra, it is important to examine the reasoning behind that advice. It is not necessary for me to recapitulate here the extensive analysis contained in the advices of Mr Lane of Counsel (dated 26 May 2005 and 31 August 2005) and the numerous letters of advice from the plaintiff’s solicitors. The advices were apparently carefully prepared and presented: there was nothing “slipshod” about them, to use Thomas J’s term in Nominal Defendant v Langman. Rather, it suffices for me to focus on the points of challenge raised by Mr Kimmins, who appeared for the defendant, in the course of his cross-examination of the claims manager Mr Evans and in his written submissions.

 

Brisbane Barrister – David Cormack

 

 

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