QS BY NEXT FRIEND CD -v- THE HOUSING AUTHORITY [2026] WASC 259

[2026] WASC 259 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : QS BY NEXT FRIEND CD -v- THE HOUSING AUTHORITY [2026] WASC 259 CORAM : STRK J HEARD : ON THE PAPERS DELIVERED : 24 JUNE 2026 FILE NO/S : CIV 1138 of 2021 BETWEEN : QS BY NEXT FRIEND CD Plaintiff AND THE HOUSING AUTHORITY First Defendant ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER Second Defendant WEST COAST ENERGY PTY LTD Fourth Defendant SPOTLESS FACILITY SERVICES PTY LTD Fifth Defendant FRONTON AUSTRALIA PTY LTD Sixth Defendant KGR ELECTRICAL SERVICES PTY LTD Seventh Defendant -- 1 of 14 -- [2026] WASC 259 Page 2 Catchwords: Application for approval of an agreement pursuant to O 70 r 10 of the Rules of the Supreme Court 1971 (WA) - Person under disability - Application to approve proposed compromise of action - Whether the terms of the proposed agreement are for the benefit of the person under a disability Legislation: Rules of the Supreme Court 1971 (WA) O 70 r 10 Result: Application granted Category: B Representation: Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Seventh Defendant : No appearance Solicitors: Plaintiff : Levitt Robinson Solicitors First Defendant : State Solicitor's Office Second Defendant : Barry Nilsson Lawyers (WA) Fourth Defendant : Hall & Wilcox (Perth) Fifth Defendant : Wotton + Kearney Lawyers (Perth) Sixth Defendant : DWF (Australia) Seventh Defendant : Wotton + Kearney Lawyers (Perth) -- 2 of 14 -- [2026] WASC 259 Page 3 Cases referred to in decision: Duffell v Duffell [2015] ACTSC 123 Morris v Zanki (1997) 18 WAR 260 Scaffidi v Perpetual Trustees Victoria [2011] WASCA 159; (2011) 42 WAR 159 Secure Funding Pty Ltd v AB [No 3] [2025] WASC 239 Sosa v Carter [1978] WAR 123 Wood v Public Trustee (WA) (1995) 16 WAR 58 -- 3 of 14 -- [2026] WASC 259 STRK J Page 4 STRK J: Introduction 1 These reasons concern the application made on behalf of the plaintiff by motion dated 8 May 2026 pursuant to O 70 r 10 of the Rules of the Supreme Court 1971 (WA). The defendants support the application for approval but do not seek to be heard in relation to it. The application has been determined on the papers. Background 2 This proceeding has been on foot since February 2021. Set out below is a high level overview so as to give context to the application. It is not a comprehensive account of the procedural history. 3 Eight separate proceedings were commenced by writs of summons filed on 26 February 2021. The plaintiffs in the eight proceedings are members of the same family and are commonly represented by Levitt Robinson Solicitors. While the proceedings were all commenced on the same day, they have not progressed at the same speed, and the orders made in each proceeding were not made in lock-step. 4 This proceeding, known as CIV 1138 of 2021, was commenced in the name of the plaintiff by a writ of summons with an indorsement of claim. Although the proceeding was commenced by solicitors for the plaintiff when the plaintiff was an infant (the plaintiff was born on 6 July 2011), it was not commenced by the plaintiff by a next friend. 5 The proceeding was admitted to the Commercial and Managed Cases List in March 2022, and in June 2022 it was ordered that the plaintiff's mother be appointed as the plaintiff's next friend; and that leave be granted to amend the writ to record that change. 6 Since December 2022 the proceeding has been prosecuted by the plaintiff by his maternal grandmother as his next friend (who was appointed next friend in substitution for the plaintiff's mother). Leave was granted to further amend the amended writ of summons to record that change. 7 By the proceeding damages are claimed by the plaintiff against the defendants for psychological injury sustained on or about 3 March 2018. The psychological injury is said to have occurred when the plaintiff witnessed his sister sustain an electric shock. The plaintiff was -- 4 of 14 -- [2026] WASC 259 STRK J Page 5 then six years of age. By the proceeding, relief in the form of damages, interest and cost was sought on his behalf. 8 Further, there have been a number of changes to the defendants in the course of the proceeding. On 21 April 2022 the proceeding against Downer EDI Engineering Pty Ltd was dismissed. Further, by an order made in March 2024 by the learned Master pursuant to O 70 r 10 of the Rules of the Supreme Court, the Court approved the compromise of the plaintiff's claim against Electricity Retail Corporation trading as Synergy (the then third defendant) on the terms of a proposed deed of settlement and release annexed to a confidential affidavit made by the plaintiff's maternal grandmother. The plaintiff, by his next friend, was granted leave to compromise his claim against the third defendant on the terms set out in the proposed deed of settlement and release; and the plaintiff, by his next friend, was granted leave to discontinue his claim against the third defendant. 9 The current defendants are the Housing Authority (the first defendant); Electricity Networks Corporation trading as Western Power (the second defendant); West Coast Energy Pty Ltd (the fourth defendant); Spotless Facility Services Pty Ltd (the fifth defendant); Fronton Australia Pty Ltd (the sixth defendant); and KGR Electrical Services Pty Ltd (the seventh defendant). The defendants deny that they are liable to the plaintiff in respect of this proceeding. 10 In May 2024 it was ordered that until the determination of the issue of liability to pay damages in the action which concerned the plaintiff's sister (the primary action) or further order, this proceeding would be stayed. It was also ordered that the parties to this proceeding may attend and participate in any mediation in the primary action to the extent permitted by the Court in the primary action and subject to any orders made by the Court in this action. 11 By an order made in February 2025, the primary action was referred to mediation pursuant to the Supreme Court Act 1935 (WA) pt VI. The plaintiff's next friend attended the mediation which took place in the Supreme Court at Perth between 18 and 21 November 2025. (She is also the next friend of the plaintiff in the primary action.) 12 Prior to the mediation conference, particulars of the plaintiff's alleged damages were filed in this proceeding and served. An expert report prepared by Dr Danny Shub, Consultant Psychiatrist, was filed in this proceeding in October 2022, and on behalf of the first, second and -- 5 of 14 -- [2026] WASC 259 STRK J Page 6 fourth defendants, the expert report prepared by Dr Dawn Barker, Consultant Child and Adolescent Psychiatrist dated 16 May 2023 was served on the plaintiff. 13 Following the mediation, the parties continued their without prejudice negotiations as to the terms of a deed of settlement and release. 14 On 8 May 2026 an application was made on behalf of the plaintiff by motion in this proceeding pursuant to O 70 r 10 of the Rules of the Supreme Court, seeking orders in the following terms:1 1. The plaintiff has leave to compromise his claim against the defendants as alleged in the Substituted Statement of Claim on the terms set out in the confidential Deed of Settlement and Release ('Deed') annexed to the affidavit of Stewart Levitt sworn 6 May 2026 and otherwise on the terms of this order. 2. Within 7 days after the date of service of this order, the parties execute the Deed. 3. There is liberty to apply with respect to the defendants' payment obligations under the Deed. 4. Upon payment of all monies as set out in the Deed, the defendants are discharged from any further liability to the plaintiff in relation to the Claim and the parties must file a Memorandum of Consent Orders dismissing the action with an order that the defendants pay the plaintiff's costs of the action to be taxed if not agreed. 5. The Public Trustee ('Trustee') is appointed the trustee of all money payable to the plaintiff pursuant to the Deed ('Trust'), to be invested and administered on the plaintiff's behalf until he attains the age of 18 years. 6. The Trustee is empowered at its discretion to apply, from time to time, the whole or any part of the income of the Trust and, if considered necessary the capital thereof, for the maintenance, welfare and advancement of the plaintiff, or otherwise for the benefit of the plaintiff. 7. Investment of the Trust is not limited to the Common Fund. 8. There is liberty to apply in respect of the Trust. 1 The Court was subsequently informed by the plaintiff's legal representatives that the inclusion of proposed order 9(d) was by error and was not pressed. -- 6 of 14 -- [2026] WASC 259 STRK J Page 7 9. Unless otherwise ordered, access to the following documents on the court record is restricted to the plaintiff and his legal representatives: a) opinion of plaintiff's counsel; b) affidavit of plaintiff's solicitor; c) affidavit of plaintiff's next friend; d) affidavit of representative of private trustee. Evidence filed in support of the application 15 Three affidavits were filed in support of the application. The first was the affidavit of the plaintiff's maternal grandmother and next friend sworn on 7 May 2026 and filed on 22 May 2026. 16 Among other things, the next friend deposed that she had attended the mediation; that she had been advised at each stage of the mediation by the plaintiff's legal team in relation to all issues, including the exchange of offers; that she had the assistance of additional support at the mediation; that the proposed deed of settlement and release was explained to her in person by Tom Maclaurin, a solicitor who attended the mediation; that Mr Maclaurin also went through with her the opinion of independent counsel; that she had read the advice of independent counsel and believed the factual content as described in the advice to be correct; and that she had had the opportunity to ask Levitt Robinson questions in relation to the negotiation and settlement, and wished to take their advice to resolve this matter in the sum that had been provisionally agreed. She also deposed that she was supportive of the appointment of the Public Trustee in relation to the management of settlement moneys. 17 Attached to that affidavit was a copy of the proposed deed of settlement and release, and a copy of a proposal received from the Public Trustee. 18 The second was the affidavit of Stewart Alan Levitt sworn on 6 May 2026 and filed on 22 May 2026. Attached to that affidavit was a bundle of documents which included the expert reports that had been prepared and exchanged concerning the plaintiff; and the opinion of independent counsel, Neil Morrissey, dated 24 March 2026. -- 7 of 14 -- [2026] WASC 259 STRK J Page 8 19 After considering the papers then filed, on 25 May 2026, a communication was sent by the Court to the plaintiff's legal representative to request that further information be provided. 20 In response to that request, a third affidavit was filed in support of the application. That was the second affidavit made by Mr Levitt, which was sworn on 10 June 2026 and filed on the same day. Attached to that affidavit was a bundle of documents which concerned the engagement of Levitt Robinson, and the legal costs and disbursements of this proceeding. Restriction orders 21 On 22 May 2026, on the application made on behalf of the plaintiff pursuant to O 67B r 5(1)(b) of the Rules of the Supreme Court, and upon the Court being satisfied that the first two affidavits described above contained confidential information, an order was made restricting access to them. Access to the affidavits is limited to the Court, the plaintiff and the plaintiff's legal representatives until further order. 22 On 15 June 2026, on the application made on behalf of the plaintiff pursuant to O 67B r 5(1)(b) of the Rules of the Supreme Court, and upon the Court having been satisfied that the third affidavit described above contained confidential information, an order was made restricting access to it. Access to the affidavit is limited to the Court, the plaintiff and the plaintiff's legal representatives until further order. 23 These reasons have been prepared so as to not disclose the confidential information contained in the affidavits. Disability 24 Order 70 of the Rules of the Supreme Court concerns disability, and in O 70, unless the contrary intention appears, 'person under disability' means (among other things) a person who is an infant. 25 Order 70 r 10 concerns the compromise of actions by persons under disability and provides as follows: 10. Settlement etc. of action by person under disability (1) No settlement or compromise, and no acceptance of money paid into court, whenever entered into or made, in any cause or matter (other than an appeal to the Court of Appeal) in which there is a claim by or on behalf of or against a person under disability, is valid unless it is approved by the Court. -- 8 of 14 -- [2026] WASC 259 STRK J Page 9 (2) An application for approval under subrule (1) — (a) if made before the hearing of a cause or matter, must be by summons in chambers; (b) if made during the trial of an action or issue, must be to the trial judge on motion, and must be supported by affidavit and by the opinion of an independent counsel; but the Court may dispense with the necessity of obtaining counsel's opinion. (3) In this rule settlement includes an acceptance of an offer to consent to judgment. 26 As was noted by Solomon J in Secure Funding Pty Ltd v AB [No 3] [2025] WASC 239 at [18], the Court has inherent power to approve an agreement to compromise an action brought on behalf of the person under a disability if it is satisfied that it is for the benefit of the person to do so. Order 70 r 10 merely provides a framework to enable the court to exercise its power.2 27 The principles to be applied in applications under O 70 r 10 of the Rules of the Supreme Court were stated by Burt CJ in Sosa v Carter [1978] WAR 123, which concerned the settlement of an infant's appeal as to an assessment of damages. I have regard to and apply the following in the disposition of this application:3 Expressed in general terms this court ought not and indeed cannot approve the proposed settlement unless it be of the opinion that it will be for the benefit of the infant plaintiff. But that cannot, I think, mean that the court is in effect to hear the application as if it were itself the appeal and then to give or to withhold its approval by comparing the offer with the judgment which it would have given on appeal. In my view what the court is called upon to do is to satisfy itself that all the facts relevant to the plaintiff's claim have been brought together and considered by her legal advisers and, unless the requirement be dispensed with, that the settlement is supported by the opinion of independent counsel. It should itself consider the opinion given and the reasons for it. If having done that it appears that all aspects of the case have received proper consideration it should be slow to disagree with the opinion particularly upon such a matter as the assessment of damages for personal injuries. The court should be aware of the risks of litigation in an area in which reasonable men can reasonably reach different conclusions and hence slow to force the infant to take a risk 2 Wood v Public Trustee (WA) (1995) 16 WAR 58 [62]; Scaffidi v Perpetual Trustees Victoria [2011] WASCA 159; (2011) 42 WAR 159 [50]. 3 Sosa v Carter (124) (Burt CJ), (124) (Wallace & Brinsden JJ). -- 9 of 14 -- [2026] WASC 259 STRK J Page 10 which the court is unable to underwrite. It should, too, satisfy itself that the opinion of counsel has been considered and understood by the infant's guardian and it should give proper weight to the fact that the guardian, as is necessarily the case, wishes to accept the settlement. See generally the remarks of Megarry J in Re Barbour's Settlement [1974] 1 All ER 1188 at 1191. 28 The Court has also issued a practice direction concerning applications for leave to compromise under O 70 r 10 and r 10A, which was published with the concurrence of the Chief Judge of the District Court so as to apply to the practice in that court as well as in the Supreme Court.4 Consistent with the principles stated by Burt CJ, practice direction 4.2.2 relevantly provides:5 2. Where counsel's opinion is not dispensed with, it must be obtained, filed and identified, and the court will normally be required to be satisfied: (a) that the next friend, (or guardian appointed by a court to be the representative in a particular lawsuit as the case may be) has perused counsel's opinion, has discussed it with the solicitor and approved of or consents to the proposed compromise; (b) that the facts on which counsel's opinion is based are correct and complete so far as can be ascertained; (c) that sufficient facts are identified to enable the court to form an opinion in respect of the matter to be approved, and that grounds for any apportionment of liability are stated; and (d) that in the opinion of both counsel and solicitor, the proposed compromise would be beneficial to the person under disability. 29 The Court has a duty to consider the future management of money recovered for a person under disability, and in fulfilling that duty exercises a judicial discretion, the governing consideration being what is best to be done for the person under disability.6 30 By the motion, it is proposed that the Public Trustee be appointed the trustee of all money payable to the plaintiff pursuant to the deed of settlement and release, to be invested and administered on the plaintiff's 4 Supreme Court of Western Australia's Consolidated Practice Directions PD 4.2.2 par 1. 5 Supreme Court of Western Australia's Consolidated Practice Directions PD 4.2.2 par 2. 6 Lexis Nexis, Civil Procedure Western Australia (at 15 June 2026) at [70.12.1], citing Morris v Zanki (1997) 18 WAR 260, 286. -- 10 of 14 -- [2026] WASC 259 STRK J Page 11 behalf until he attains the age of 18 years. It is further proposed that the Public Trustee be empowered at its discretion to apply, from time to time, the whole or any part of the trust and, if considered necessary the capital thereof, for the maintenance, welfare and advancement of the plaintiff, or otherwise for the benefit of the plaintiff; and that investment or the trust not be limited to the 'Common Fund' (which I understand to be a reference to the Common Account established under the Public Trustee Act 1941 (WA) s 39A). 31 Order 70 r 12 concerns the control of money recovered for a person under disability and provides as follows: 12. Control of money recovered for person under disability (1) Where — (a) in any proceedings money is recovered by or on behalf of or is adjudged or ordered or agreed to be paid to or for the benefit of a person under disability; or (b) in any proceedings money paid into court is accepted by or on behalf of a plaintiff who is a person under disability; or (c) in an application under rule 11(1) the Court has ordered the payment into court or investment of any moneys relating to a settlement or compromise, the money must, unless otherwise ordered by the Court, be paid to the Public Trustee for investment on behalf of the person under disability, and if the Court so orders may be invested by the Public Trustee in investments outside the Common Account established under the Public Trustee Act 1941. (2) The Court may at any time, and from time to time, give directions for the application of the income or of the capital and income of the investment for the maintenance, welfare, advancement, or otherwise for the benefit of the person under disability. Disposition 32 This application is supported by affidavit (the affidavits of the plaintiff's next friend and legal representative) and by the opinion of an independent counsel, Mr Morrissey. 33 On the papers filed, I am satisfied that the plaintiff's next friend had perused counsel's opinion, had discussed it with the solicitor and -- 11 of 14 -- [2026] WASC 259 STRK J Page 12 approved of the proposed compromise; that the facts on which counsel's opinion was based were correct and complete so far as could be ascertained; that sufficient facts had been identified to enable the Court to form an opinion in respect of the matter to be approved (that is, the compromise of the plaintiff's claim against the defendants on the terms set out in the confidential deed of settlement and release); and that in the opinion of counsel and the plaintiff's solicitor, the proposed compromise would be beneficial to the plaintiff, being the person under disability. 34 In considering the application, I have noted that there remains uncertainty as to the extent to which: (a) the plaintiff's costs of and incidental to this proceeding will be recovered from the defendants (which costs are to be assessed if not agreed); and (b) the extent to which Levitt Robinson may seek to recover additional costs against the plaintiff over and above the party and party costs payable to the plaintiff, as ascertained by assessment or the agreement of the defendants. 35 While this uncertainty remains, I note that: (a) the compromise is favourable to the plaintiff in so far as it contemplates recovery by the plaintiff of his legal costs from the defendants on a party and party basis; (b) the ambit O 70 r 10 would appear to be such that the Court will have oversight in relation to any agreement to compromise (rather than have assessed by taxation) the costs payable to the plaintiff by operation of O 70 r 10; and (c) by operation of O 66 r 24, unless Levitt Robinson does not claim additional costs against the plaintiff over and above the party and party costs, as ascertained by taxation or the agreement of the defendants payable to the plaintiff in the proceeding, the costs payable to Levitt Robinson on behalf of the plaintiff from the money recovered on his behalf in this proceeding must be taxed, and no costs may be charged or retained by Levitt Robinson in respect of this proceeding except the amount of such taxed costs. -- 12 of 14 -- [2026] WASC 259 STRK J Page 13 36 Having regard to all of the circumstances, including the proposal with respect to the plaintiff's costs of the proceeding, I am satisfied that the deed of settlement and release represents a compromise that is beneficial to the plaintiff. 37 The reasons set out above are sufficient for the Court to explain its approval of the compromise. It is neither necessary nor appropriate for the Court to set out in detail its reasons for approval of the compromise.7 38 As is recorded above, an order is sought that the Public Trustee be appointed the trustee of all money payable to the plaintiff pursuant to the deed of settlement and release, to be invested and administered on the plaintiff's behalf until he attains the age of 18 years. By proposed orders 6 and 7 of the motion, it is intended that the Public Trustee be afforded additional flexibility with respect to distribution to benefit the plaintiff and investment. The plaintiff will turn 18 on 6 July 2029. The order is supported by the plaintiff's next friend, was not opposed by the defendants, and I am satisfied that it is sensible and appropriate in the circumstances. Having considered the proposed arrangements in light of the governing consideration, being what is best to be done for the plaintiff, I am satisfied that there is a good reason for the exercise of discretion in the manner provided. Conclusion and orders 39 For these reasons, orders will be made in terms substantively as promoted on behalf of the plaintiff in the notice of motion. 7 See Duffell v Duffell [2015] ACTSC 123 [48] - [50] cited in Secure Funding Pty Ltd v AB [No 3] [21]. -- 13 of 14 -- [2026] WASC 259 STRK J Page 14 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CR Associate to the Honourable Justice Strk 24 JUNE 2026 -- 14 of 14 --