FEDERAL COURT OF AUSTRALIA

Biasin v Hume City Council [2009] FCA 723

BLAKE BIASIN (BY HIS NEXT FRIEND, KAREN BIASIN) v HUME CITY COUNCIL

VID 776 of 2008

NORTH J

30 JUNE 2009

MELBOURNE

THE COURT ORDERS THAT:

1.                  Pursuant to Order 43 Rule 9 of the Federal Court Rules, the Court approves the settlement between the parties as contained in Exhibit “KB-1” to the Affidavit of Karen Biasin, affirmed on 29 June 2009.

2.                  Subject to paragraph 4 hereof, the Exhibits to the Affidavit of the Applicant’s Next Friend, Karen Biasin, affirmed on 29 June 2009 be treated as confidential by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.

3.                  On or before 14 July 2009 the Respondent pay into Court the settlement sum specified in clause 3 of Exhibit “KB-1” to the Affidavit of Karen Biasin, affirmed 29 June 2009.

4.                  A Registrar be entitled to access the said Exhibits for the purposes of administering the said payment into Court.

5.                  The Registrar invest the settlement sum in Court in an interest bearing account for the benefit of the Applicant.

6.                  The Registrar be authorised to make payments out of the fund in Court for the benefit of the Applicant:

6.1              for educational and vacation care purposes, for so long as the Applicant remains at school; and

6.2              thereafter, for the general welfare of the Applicant.

7.                  Such payments are to be made on application by the Applicant’s next friend to the Registrar in a manner stipulated by the Registrar including by letter or orally.

8.                  The Registrar release to the Applicant, or his guardian if one has been appointed, any remaining funds upon the Applicant attaining the age of 18 years.

9.                  The Application made on behalf of the Applicant to the Court on 24 September 2008 pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed.

10.              The Respondent pay the Applicant’s costs of the proceeding, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Before the Court is an application pursuant to Order 43 Rule 9 of the Federal Court Rules, which requires Court approval of a settlement where agreement is made by the next friend of a minor to resolve proceedings filed in the Court.

2                     The applicant was, at the commencement of proceedings, an 11 year old boy suffering from a number of mild physical and intellectual disabilities. Pursuant to Order 43, Rule 1 of the Federal Court Rules, the action was filed by his mother, Karen Biasin, as his next friend.

3                     The respondent is a local government authority which provides services including the organisation ofa vacation care program for children. Since 2003, the applicant has been a regular participant in activities run by the respondent as part of the vacation program.

4                     On 24 January 2008, the applicant lodged a complaint against the respondent with the Human Rights and Equal Opportunity Commission alleging breaches of the Disability Discrimination Act 1992 (Cth) (the Act).

5                     In the complaint, the applicant alleged that, by reason of his disabilities, the respondent prevented him from participating in a number of excursions organised by the respondent as part of its vacation care program in January of 2008 in breach of ss 5, 6 and 24 of the Act.

6                     Following a conciliation conference between the parties held on 27 June 2008, the complaint was terminated on 28 August 2008 by the President under s 46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) on the ground that there was no reasonable prospect of the matter being settled by conciliation.  

7                     On 25 September 2008, the applicant filed an application in the Federal Court pursuant to s 46PO(1) of the HREOC Act to have the allegations decided by the Court. The matter was referred to mediation by a registrar of the Court, during which settlement was reached between the parties.

8                     The terms of the settlement are contained in a Deed of Release.  Whilst it has been necessary to disclose the settlement in general terms for the Court to make the orders sought, in all other respects the parties ask that the terms of the settlement remain confidential.  This raises the tension between, on the one hand, the desirability of encouraging parties to arrive at settlements in disputed litigation and, on the other hand, the value to the community of having resolutions publicly available in order to demonstrate some of the outcomes which might arise from such litigation, and also, the requirement for the courts to operate in an open fashion.

9                     Each case must be dealt with and determined on its own facts.  In this case, I am satisfied from the terms of the affidavit of Ms Biasin, which includes written advice from the solicitors for the applicant recommending the acceptance of the settlement, that the terms of this settlement are generous to the applicant.  It has been made clear by Ms Mortimer, who appeared as senior counsel for the respondent, that the confidentiality term is an essential part of the settlement and, consequently, that if that aspect of the agreement were unacceptable to the Court, then the settlement would not be available to the applicant.  It was also pointed out by Ms Mortimer that were the applicant not a minor then he would be free to settle on a confidential basis without the sanction of the Court. 

10                  The written legal advice obtained by the applicant refers to a number of relevant factors, such as the uncertainty of litigation and the likely costs of a contested case.  It also refers to the outcomes in comparable cases and expresses an informed view about the value of the settlement to the applicant.  Thus the next friend has been given an informed legal opinion and her affidavit indicates that she has accepted that advice.  In these circumstances I am prepared, in this case, to approve the settlement despite the requirement in the agreement that the detail of the terms of the settlement be kept confidential.  In this case the terms of settlement seem particularly favourable to the applicant and it would be wrong to deny him that advantage for the sake of disclosing the terms publicly.  It should not be thought that this reasoning is applicable in every case. 

Associate:

Dated:         7 September 2009