FEDERAL COURT OF AUSTRALIA

Bannister v State of Victoria [2012] FCA 1341

THE COURT ORDERS THAT:

1.    The settlement between the parties recorded in the Settlement Deed dated 25 October 2011, which is exhibit “LB-3” of the affidavit of Lucy Bannister sworn 22 November 2012 (“the Bannister affidavit”), is approved.

2.    The settlement monies are to be paid into a trust to be created named the Daniel Bannister Trust as set out in exhibit “LB-5” to the Bannister affidavit, to be administered pursuant to that trust.

3.    The opinion of independent lawyer David Hancock dated 22 November 2012 which is exhibit “LB-4” to the Bannister affidavit 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.    The proceeding be dismissed with no order as to costs.

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

REASONS FOR JUDGMENT

1    This application comes before me for approval of a settlement made on behalf of Daniel Bannister, the applicant, by his mother Lucy Bannister, as his litigation representative. The applicant is 16 years old and unable to manage his own affairs. The settlement is recorded in a Settlement Deed dated 25 October 2011 between the applicant by his litigation representative and the State of Victoria, through the Department of Education and Early Childhood Development.

2    Rule 9.70 of the Federal Court Rules 2011 (“the Rules”) provides that where a litigation representative agrees to a settlement of any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement. If the Court approves the agreement, the agreement then becomes binding on the person by or for whom it was made.

3    I have been provided with the following materials:

(a)    an affidavit of Lucy Bannister sworn 22 November 2012 (“the Bannister affidavit”);

(b)    the Settlement Deed dated 25 October 2011 which is exhibit “LB-3” to the Bannister affidavit;

(c)    a confidential opinion in support of the settlement by independent lawyer David Hancock dated 22 November 2012, which is exhibit “LB-4” to the Bannister affidavit; and

(d)    an undated yet signed trust deed titled the Daniel Bannister Trust Deed, which is exhibit “LB-5” to the Bannister affidavit.

4    The claim arises pursuant to the provisions of the Disability Discrimination Act 1992 (Cth) (“DDA”) and the Australian Human Rights Commission Act 1986 (Cth) (“AHRCA”), and is based in both direct and indirect discrimination. The applicant is currently 16 years old and alleges the following disabilities within the definition of "disability” in the DDA:

(a)    autism spectrum disorder;

(b)    auditory short-term memory and processing difficulties;

(c)    ADHD and oppositional defiant disorder;

(d)    auditory figure ground differentiation delay;

(e)    severe pragmatic language disorder;

(f)    dyslexia; and

(g)    sensory and fine motor difficulties

5    The period of the claim is from January 2002 to November 2010 during which the applicant attended schools operated by the respondent, and contends that he was not given assistance in order to access goods, services and facilities on equal basis with students without his disabilities. He alleges matters such as being refused attendance at a school camp, delays in re-enrolment following expulsion, a failure to provide required assistance, limitations upon his access to the curriculum and participation in the classroom, expelling him due to attributes of the disability, and not permitting him to attend school full-time.

6    The respondent denies liability for any discriminatory conduct. It contends that it made a large number of reasonable adjustments in its provision of educational services to the applicant including, amongst other things, making appropriate funding applications for assistance, often providing a special education teacher or an integration aide, developing a individual learning plan for him by specialist staff, allowing his part-time attendance at school by agreement with his mother and for his benefit, such that the applicant was able to fully participate in this education on the same basis as a student without his disabilities.

7    The parties have reached a confidential settlement. I have been requested by both parties to treat the quantum of the settlement as confidential, although I do so with some disquiet.

8    The terms of the settlement and its quantum are supported by a detailed opinion of independent lawyer Mr David Hancock, barrister, dated 22 November 2012. In his opinion the settlement is fair and reasonable taking into account the early stage of the proceedings, the relative strengths and weaknesses of the cases on both sides, the vagaries of litigation, the exposure of Mrs Bannister to costs, the applicant’s family situation and his assessment of damages that that will likely be recovered by the applicant if he were substantially successful at trial. The opinion is comprehensively and apparently well reasoned.

9    Mr Hancock's opinion also endorses another important part of the settlement, that the settlement sum is to be paid into and thereafter administered by the "Daniel Bannister Trust", a trust to be set up for the sole purpose of management of the settlement sum. This should provide a measure of protection for the applicant in relation to the expenditure of the settlement sum. The alternatives to this trust included simply allowing for the settlement monies to be held by Mrs Bannister or to provide for them to be administered by an independent body such as State Trustees. Independent counsel expressed a view that there was no compelling reason for the money is to be administered by State Trustees noting that it would charge a fee for its services. I accept this in the particular circumstances of this case.

10    This trust was described in the Bannister affidavit as having already been created, and the document exhibited at “LB-5” is already signed by the two trustees. However, it is undated. Counsel for the applicant accepts that the trust is now to be created in the same terms as “LB-5” and the settlement monies paid into it.

11    Having considered the materials, I am satisfied that the compromise is a reasonable one and is in the best interests of the applicant. I am satisfied primarily because of the assessment made by the litigation representative that the settlement is appropriate, which was made at a mediation conducted by a registrar of this Court, together with the opinion of the independent lawyer.

12    It appears that Mr Hancock has not had prior involvement as counsel in this proceeding, but even if he had, I agree with the remarks of Bromberg J in Wade v State of Victoria (No 2) [2012] FCA 1080. His Honour explained that the use of the word "independent" in r 9.71(2)(c) was not intended to effect a change in the long-standing practice which has permitted reliance upon opinion as to adequacy of settlement given by the solicitor or counsel acting for the applicant in the proceedings. When providing such an opinion the solicitor or counsel acting does so as an officer of the Court and so as to inform the Court, rather than on his client’s instructions as an advocate.    

Associate:

Dated:    27 November 2012