FEDERAL COURT OF AUSTRALIA

Stephens-Sidebottom v State of Victoria (Department of Education and Early Childhood Development) [2011] FCA 893

THE COURT ORDERS THAT:

1.    Ms Sue Bricknall be appointed as tutor for the applicant for the purposes of the proceeding.

2.    The requirements of Order 43 r 2(2) be dispensed with.

3.    The settlement and release agreement, in the terms appearing in exhibit KW-2 to the affidavit of Kairstien Wilson, sworn on 24 June 2011, be approved.

4.    There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    Ms Rosie Stephens-Sidebottom suffers from an intellectual disability and is in the autism spectrum. Between 2004 and early in 2009 she attended the East Gippsland Specialist School which is conducted by the Respondent.

2    On 14 July 2009 Ms Sue Bricknall, Ms Stephens-Sidebottom’s grandmother and guardian lodged a complaint in the Australian Human Rights Commission (“the Commission”). The complaint alleged that Ms Stephens-Sidebottom had been discriminated against by the Respondent during her time at the school because of her race and her intellectual disability. It was alleged that the discriminatory conduct had been directed against Ms Stephens-Sidebottom by fellow students and that the school authorities had not exercised the degree of control necessary to prevent such conduct.

3    The complaint to the Commission was brought by Ms Bricknall because, in July 2009, Ms Stephens-Sidebottom was 17 years old and, therefore, a minor. She turned 18 on 2 February 2010.

4    Attempts by the Commission to conciliate the complaint failed.

5    By application dated 25 May 2010 Ms Stephens-Sidebottom commenced the present proceeding pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The application sought compensation for alleged contraventions by the respondent of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth).

6    The proceeding was referred to a Registrar of the Court for mediation. The mediation continued over a lengthy period because Ms Stephens-Sidebottom had a limited attention span and those involved did not wish her to be subjected to avoidable stress.

7    The mediation ultimately proved successful. Terms were agreed and signed in May 2011. Both Ms Stephens-Sidebottom and Ms Bricknall signed the agreement in the presence of Ms Kairstien Wilson, the legal practitioner engaged by them to conduct the proceeding on behalf of Ms Stephens-Sidebottom.

8    It was a term of the agreement that Ms Stephens-Sidebottom would instruct her legal advisers to seek on her behalf the approval of the Court of the settlement pursuant to O 43 of the Federal Court Rules. Those instructions were, I infer, given and the application was made on 24 June 2011. It was supported by an affidavit sworn by Ms Wilson in which she:

    Exhibited advice from counsel concerning the merits of the proceeding and the terms of an offer from the Respondent which were, on counsel’s advice, subsequently incorporated in the terms of settlement.

    Recounted the discussions she had had with Ms Stephens-Sidebottom and Mr and Mrs Bricknall in which she explained the proposed terms of settlement and obtained their informed consent to those terms.

    Expressed the opinion that the proposed settlement is in the best interests of Ms Stephens-Sidebottom having regard to the strength of her case, the risk of costs being awarded against her should the proceeding be dismissed and the desirability of Ms Stephens-Sidebottom being able to put the legal proceeding behind her and “move on” to the next stage of her life.

    Exhibited the written consent of Ms Bricknall to be appointed as Ms Stephens-Sidebottom’s tutor under O 43 of the Federal Court Rules and certifying that she (Ms Bricknall) supported and endorsed the terms of settlement.

9    As already noted the present application is made under O 43 of the Federal Court Rules. Rule 2 provided that the Court may appoint a tutor for a person under disability. Relevantly, rr 5 and 9 provided:

“5(1) Subject to the Rules, where a person under disability is a party to any proceedings, anything which would, if he were not a person under disability, be required or authorised by these Rules to be done by him shall or may be done by his tutor.

(2) A tutor must act by a solicitor.

…

9(1) Where a proceeding has been commenced, and afterwards an agreement is made by the tutor in the proceeding of a person under disability, for the compromise or settlement of any matter in dispute in the proceeding, the tutor shall apply to the Court for approval of the agreement and the Court may approve or disapprove the agreement.

(2) An agreement approved by the Court under sub rule (1) is as binding on the person under disability as if the person under disability were not a person under disability and his tutor were his agent to make the agreement.”

10    I am satisfied that Ms Stephens-Sidebottom suffers from an intellectual disability. It is, therefore, appropriate that a tutor be appointed for the purpose of dealing with the present application. Ms Bricknall is an appropriate person to act in that role and she is willing to so act. I will, therefore, appoint her. Ms Stephens-Sidebottom is well aware of the application for her appointment. It is not necessary that notice of it be given to her. An order will be made pursuant to O 43 r 2(2), dispensing with the requirement that notice should be given to her.

11    In the circumstances, it may be that the proceeding should have been commenced by a tutor. The absence of a tutor is an irregularity only and does not affect the efficacy of the proceeding which has continued without objection by the respondent: see Spellson v George (1987) 11 NSWLR 300.

12    In determining whether to sanction a compromise under O 43 r 9 the Court is concerned only with the benefit of the disabled person: see Gillespie v Alperstein [1964] VR 749. In forming the necessary judgment significant weight will be given to the opinions of the applicant’s legal advisers and, in some cases at least, the views of the applicant’s tutor. In Re Barbour’s Settlement [1974] 1 All ER 1188 at 1191, Megarry J, speaking of an application made on behalf of a minor, said that:

“Second, there is the important matter of the minor’s benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned.”

13    In the present case Ms Stephens-Sidebottom has also been consulted and has endorsed the central elements of the settlement.

14    Ms Wilson has explained the manner in which she formed the opinion in favour of the settlement. Her views are founded, in part, on the advice of counsel with which she agrees. I have read counsel’s advice. It is supportive of the settlement of the proceeding and the terms on which it is proposed to do so. It is not appropriate that I summarise the advice which goes to the strength and weaknesses of Ms Stephens-Sidebottom’s case.

15    The terms of settlement include a clause which requires the parties to maintain, in confidence, the terms of their agreement. I have read the agreement and am satisfied that the compromise of the proceeding on the terms proposed is in Ms Stephens-Sidebottom’s best interests. In forming this view I have taken into account the carefully expressed opinions of her legal advisers and her guardian and grandmother. Whilst Ms Stephens-Sidebottom’s intellectual disability undoubtedly limits to some extent her capacity fully to appreciate the proposed terms, I am satisfied that she has a basic understanding of at least some of them and looks forward to certain agreed action being taken by the Respondent.

16    The terms of the settlement will be approved.

Associate:

Dated:    8 August 2011