Woodward v State Of Victoria [2009] FCA 1122

FEDERAL COURT OF AUSTRALIA

HUMAN RIGHTS –discrimination – disability – child with alleged disabilities – settlement of claim – proper orders to make on approval of terms of settlement

DRUIAN WOODWARD (BY HIS NEXT FRIEND, MEREDITH WOODWARD) v STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT)

VID 830 of 2008 / VID 604 of 2009

GORDON J

1 OCTOBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 830 of 2008 / VID 604 of 2009
GENERAL DIVISION

BETWEEN:

DRUIAN WOODWARD (BY HIS NEXT FRIEND, MEREDITH WOODWARD)

Applicant

AND:

STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT)

Respondent

JUDGE:	GORDON J
DATE OF ORDER:	1 OCTOBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to Order 43, rule 9 of the Federal Court Rules 1979 (Cth), the settlement between the parties recorded in Exhibit “MW-A” of the affidavit of Meredith Woodward sworn on 1 October 2009 (“the Woodward Affidavit”) is approved.

2. The applications made on behalf of the Applicant on 3 October 2008 in proceeding VID 830 of 2008 and on 14 August 2009 in proceeding VID 604 of 2009 pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) are dismissed.

3. Subject to paragraph 5 herein, the Woodward Affidavit and exhibits thereto be treated on a confidential basis by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.

4. On or before 15 October 2009, the Respondent pay into Court the sum specified in clause 2.3.6 of Exhibit “MW-A” to the Woodward Affidavit (“the Sum”).

5. A Registrar of the Court is entitled to have access to the Woodward Affidavit and exhibits for the purpose of administering the Sum.

6. The Registrar invest the Sum in an interest bearing account for the benefit of the Applicant.

7. The Registrar be authorised to make payments out of the Sum for the benefit of the Applicant:-

a) for educational purposes for so long as the Applicant remains at school; and

b) thereafter for the general welfare of the Applicant.

8. Any payments out in accordance with paragraph 7 of these Orders are to be made on application by the Applicant’s next friend to the Registrar as is stipulated by the Registrar including by letter or orally.

9. Upon the Applicant attaining the age of 18 years, the Registrar release to the Applicant, or his guardian if one has been appointed, the remaining part of the Sum (if any).

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 830 of 2008 / VID 604 of 2009
GENERAL DIVISION

BETWEEN:

DRUIAN WOODWARD (BY HIS NEXT FRIEND, MEREDITH WOODWARD)

Applicant

AND:

STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT)

Respondent

JUDGE:	GORDON J
DATE:	1 OCTOBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 By his next friend, Mrs Meredith Woodward, the Applicant brought proceedings against the Respondent under the Disability Discrimination Act 1992 (Cth) (“the DDA”) seeking compensation and a declaration that the Respondent had committed unlawful discrimination against the Applicant since January 2001 and that that discrimination is continuing. There are in fact two proceedings – one commenced on 3 October 2008 (VID 830 of 2008) and the other on 14 August 2009 (VID 604 of 2009). In each proceeding, the Applicant complained of discrimination in the provision of educational services by the Respondent, the State of Victoria, pursuant to the DDA.

2 Trial of the proceedings commenced on Monday, 28 September 2009. On Tuesday, 29 September 2009, the proceedings were referred to a Registrar for mediation and were ultimately resolved. The terms of the resolution are recorded in signed terms. The terms are confidential.

3 By O 43, r 12 of the Federal Court Rules 1979 (Cth), the Court has power to approve a settlement of a proceeding brought by a person under a disability. The approval can be on terms. For example, the Court may require that any money payable, or applicable to or for the benefit of such a person, be dealt with by way of settlement or otherwise, as the Court thinks fit, for the benefit of that person.

4 In support of the application for approval of the settlement, an affidavit sworn by Mrs Woodward has been filed. That affidavit addresses the adequacy of the settlement. It does so by reference to a number of facts and matters including:

1. the Applicant’s disabilities;

2. the nature of the claims that has been made;

3. the advice given about the risks of litigation including the possible liability for costs in the event that the proceedings are unsuccessful;

4. the stress of the litigation to the Applicant and the other members of his family; and

5. the fact that in the opinion of the Applicant’s counsel, the terms of settlement are within the range of what might be awarded and, in fact, include terms which it is unlikely a Court would be able to order.

5 In the circumstances, I will approve the settlement and order that:

3. Subject to paragraph 5, the Woodward Affidavit and exhibits thereto be treated on a confidential basis by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.