In Victorian courts claims are often brought by a litigation guardian or VCAT appointed administrator on behalf of a minor, or a person with a disability such as acquired brain injury or dementia. As a person under disability is unable to consent to the compromise of their claim against a defendant, such compromise must be approved by the court in order to be valid. In the Supreme Court such court usually constituted by an Associate Judge.

Rule 15.08 of the Supreme Court (General Civil Procedure) Rules 2005 states:

‘Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to claim be valid without the approval of the Court.’

Similar or identical provision appears in both the County Court Rules and the Magistrates’ Court Rules.

The principles relating to in Rule 15.08 are closely considered in the Supreme Court judgment of Robson, J in Elderfield v Transport Accident Commission [2010] VSC 116 (12 April 2010).

His Honour concludes that the central consideration in making an order pursuant to Rule 15.08 is whether or not the acceptance of the claim is outweighed by the possibility of a better outcome being obtained for the plaintiff at trial.