FEDERAL COURT OF AUSTRALIA

Moore v State of New South Wales [2014] FCA 477

THE COURT ORDERS THAT:

1.    Approval be given to the compromise or settlement between the parties, contained in the Deed of Settlement and Release, a copy of which is Annexure A to the affidavit of Ian Anderson sworn on 21 February 2014.

2.    The proceeding be dismissed with 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

(REVISED FROM TRANSCRIPT)

1     Ian Anderson is the litigation representative of Axel Moore, the applicant in this proceeding. Mr Anderson was appointed as the applicant’s litigation representative by order made on 18 September 2013.

2     Mr Anderson applies under r 9.71 of the Federal Court Rules 2011 (Cth) (the Rules) for approval of an agreement to compromise or settle all matters in dispute in the proceeding.

Background

3    On 30 October 2012, Mr Anderson lodged a complaint with the Australian Human Rights Commission (AHRC) on behalf of the applicant, pursuant to s 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The complaint alleged that the respondents had unlawfully discriminated against the applicant on the grounds of disability, contrary to ss 5, 6 and 24 of the Disability Discrimination Act 1992 (Cth) (DDA) (the complaint). The complaint also contained allegations of victimisation in contravention of s 42 of the DDA.

4    The complaint concerned the applicant’s attendance and participation in an after-school care program conducted by the second respondent. At the relevant time, the third respondent was the Principal of the primary school attended by the applicant, and the fourth respondent was the President of the second respondent.

5    On 22 March 2013, the parties to the complaint attended a conciliation conference convened by the AHRC. Unfortunately, the complaint did not resolve. On 27 May 2013, a delegate of the President of the AHRC terminated the complaint, pursuant to s 46PH(1)(i) of the AHRC Act, on the basis that there was no reasonable prospect of the matter being settled by conciliation.

The proceeding in this Court

6    The proceeding in this Court was commenced on 25 July 2013. As I have noted, Mr Anderson was appointed as the applicant’s litigation representative on 18 September 2013. On 20 September 2013, an amended statement of claim was filed. On 30 September 2013, I made orders by consent that the matter be referred to mediation before a registrar of the Court. On 26 November 2013, the parties participated in that mediation, and were able to reach a compromise or settlement of all matters in dispute in the proceeding.

The application for approval

7    Rule 9.70(1) provides that if a litigation representative agrees to the compromise or settlement of any matter in dispute in a proceeding, that representative must apply to the Court for approval of the agreement. If approval is given to the agreement, it will be binding on the person by or for whom it was made, as if the person was not under a legal incapacity, and the litigation representative had made the agreement as the person’s agent: r 9.70(2).

8    Rule 9.71 provides:

(1)    An application by a litigation representative for approval of an agreement must be made by filing an interlocutory application.

(2)    The interlocutory application must be accompanied by the following: (a) an affidavit stating the material facts on which the application relies;

(b) the agreement that is sought to be approved;

(c) an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.

9     In the present case, the relevant interlocutory application was filed on 24 February 2014 and was supported by an affidavit filed by Mr Anderson on the same date. That affidavit sets out the background to the matter and the terms of the compromise or settlement. A copy of the Deed of Settlement and Release, entered into by the parties and embodying the compromise or settlement reached, was annexed, together with an opinion from David Hillard, solicitor, in compliance with the requirement of r 9.71(2)(c).

10    Mr Hillard is a partner at Clayton Utz. He has practised in anti-discrimination law since 1994. He has expressed the opinion that the settlement reached is in the best interests of the applicant. In reaching this opinion, Mr Hillard has stated that he has considered the originating application under the AHRC Act, the amended statement of claim filed on 20 September 2013, and the respective position papers of the parties to the mediation. He also had regard to the terms of a draft of the deed.

11    On the first day of the hearing, a supplementary affidavit from Mr Hillard was provided in order to clarify the identity of the draft deed to which he had regard in providing his opinion. Following the first day of the hearing, further affidavits were filed by Mr Anderson and Mr Hillard to provide further information to the Court. These affidavits were read today. They are responsive to observations I made on the first day of the hearing about the adequacy of the evidence given to support the approval that is sought.

12    The evidence shows that the applicant is a person with a disability within the meaning of s 4 of the DDA, in that he has a partial loss of bodily function, being verbal dyspraxia (aphasia) and partial loss of mental function, being intellectual disability and Autism Spectrum Disorder. These latter disorders result in the applicant learning differently from others without those disorders and affect his thought processes and emotions, as well as result in disturbed behaviour.

13    At the time of the complaint, the applicant was attending Bateau Bay Public School. As I have noted, the complaint and hence the subject matter of this proceeding, concerns his attendance and participation in an after-school care program. More specifically, it relates to the applicant’s exclusion from the program after a short trial period.

14    Mr Anderson’s evidence is that the applicant’s disabilities are such that he does not appreciate or understand the circumstances giving rise to the present proceeding. Mr Anderson, his wife (the applicant’s mother) and the applicant’s sister have now moved to Queensland. This has been for reasons unrelated to the subject matter of this proceeding. The applicant now attends a local public school in Queensland. From Mr Anderson’s observations, and reports from staff at the school made to him, the applicant has fitted in well and enjoys his time there.

15    In his affidavits, Mr Anderson has set out the basis on which he considers the agreement is in the applicant’s best interests. He has given evidence that if the proceeding were not to resolve at this time, with the risk of adverse costs if unsuccessful, the lengthy time it would take, the practical difficulties for him and his family now living interstate, and the stress that it would impose on them, he would have to seriously question whether it was in his family’s best interests to continue with the proceeding at all. Although referring to the family’s best interests, those interests also reflect the applicant’s interests, as an important unit in that family.

16    In his further affidavit, Mr Hillard has expressed the opinion that even if the applicant were to be successful in this proceeding, the loss claimed is minimal. The alleged unlawful acts occurred over one or two days in the life of an eight-year old boy. He has noted, correctly in my view, that there would likely be issue taken at a contested hearing about whether, given his age and particular disabilities, the applicant even had a sense that he had been arguably treated differently or unfairly. That observation is supported by Mr Anderson’s own evidence to which I have referred.

17    Mr Hillard has also expressed the opinion, that, if the applicant were to be unsuccessful, the likely costs awarded against him would be well in excess of any compensation provided by the settlement. In particular, as there are four respondents, the applicant would face multiple adverse costs orders if unsuccessful. In my view those observations are well made.

18    Mr Hillard has expressed the opinion that the settlement sum agreed upon will provide the applicant and his family some sense of vindication of having pursued the complaint, while avoiding the stress, uncertainty, inconvenience, additional legal expense, and significant financial risk which would be caused if the matter were to proceed to a contested hearing.

19    No defence has been put on in the present proceeding because mediation intervened. However, I have been informed in the course of submissions, and accept, that there would be a real and genuine contest on liability if the matter were to proceed to a contested hearing; in particular, whether the acts complained of were taken as a result of the applicant’s disability as opposed to some other legitimate reason. Moreover, as Mr Hillard’s opinion explained, it is likely that the respondents will rely on the fact that the acts took place over a very short period of time, and in circumstances where there would be real and difficult questions about the assessment of damages, should liability be established.

Consideration

20    Having considered the amended statement of claim, Mr Anderson’s evidence and the opinion and reasons expressed by Mr Hillard, and having taken into account the matters advanced in submissions, I am of the view that the compromise or settlement contained in the deed should be approved.

Disposition

21    Orders will be made accordingly.

Associate: