FEDERAL COURT OF AUSTRALIA

Davies v State of South Australia [2015] FCA 428

THE COURT ORDERS THAT:

1.    Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) the Court approves the agreement between the parties which is reflected in the “Deed of Release and Discharge” which is Exhibit “FEA1” to the affidavit of Frances Ellen Anderson sworn on 10 March 2015.

2.    The affidavit and exhibits thereto of Frances Ellen Anderson sworn on 10 March 2015 be confidential and be placed in a sealed envelope and marked “Not to be opened without the order of a judge”.

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

REASONS FOR JUDGMENT

1    The applicant commenced this proceeding on 17 January 2014. It is a proceeding under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) alleging discrimination by the respondent under the Disability Discrimination Act 1992 (Cth), and claiming various forms of relief with respect to that alleged discrimination. The applicant alleges that the respondent engaged in conduct which was unlawful within the terms of s 24 or s 25, or both, of the Disability Discrimination Act 1992 (Cth).

2    On 14 August 2014, the applicant sought an order that the Public Trustee of South Australia (“the Public Trustee”) be appointed as the applicant’s litigation representative. The Court’s power to make such an order is contained in r 9.63 of the Federal Court Rules 2011 (Cth) (“the Rules”). The legal incapacity alleged in the case of the applicant was that she was a mentally disabled person. That expression is defined in the Dictionary in the Rules as, “a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding”. The applicant’s application for the appointment of a litigation representative was supported by a medical report from Dr Raji Guterres. Dr Guterres is a psychiatrist.

3    On 12 September 2014, I made an order that the Public Trustee be appointed as litigation representative for the applicant pursuant to r 9.63 of the Rules.

4    The applicant has made an application for approval of a settlement she has reached with the respondent after a mediation on 15 October 2014 and 11 November 2014 and negotiations which took place after the mediation. The application is made pursuant to r 9.70 of the Rules. It is supported by two affidavits. The first affidavit is an affidavit of Ms Frances Ellen Anderson sworn on 10 March 2015. Ms Anderson is general manager at the Public Trustee. Exhibited to Ms Anderson’s affidavit is an unexecuted copy of a Deed of Release and Discharge (“Deed”) between the applicant by her litigation representative, the Public Trustee, and the Crown in right of the State of South Australia. Secondly, Ms Anderson’s affidavit exhibits a lengthy opinion from senior counsel acting for the applicant. In that opinion, counsel states that, in her opinion, the proposed Deed is a beneficial outcome for the applicant, and she recommends that the applicant enters into the Deed. Thirdly, Ms Anderson’s affidavit exhibits a second report from Dr Guterres and it is dated 4 February 2015. In that report, Dr Guterres expresses the opinion that the applicant is capable of managing her financial affairs and, in particular, is capable of managing any funds which may come to her as a result of a settlement. Dr Guterres sets out her reason for distinguishing between the applicant’s ability to instruct her solicitors in the proceeding which is addressed in her first report, and her capacity to manage her financial affairs. The applicant seeks an order that this affidavit and its exhibits be confidential.

5    The second affidavit filed by the applicant in support of the application for approval is an affidavit of Ms Lindley Margaret Gilfillan sworn on 24 March 2015. Ms Gilfillan is the applicant’s solicitor. In her affidavit, Ms Gilfillan deals with a particular matter which had arisen in the proceeding. On 12 January 2015, the applicant wrote to my chambers stating (to put the matter generally for reasons of confidentiality) that she did not consider the settlement proposed by the Public Trustee and the respondent to be an appropriate one. On 12 March 2015, the applicant wrote a second letter wherein she stated that she was satisfied with the proposed settlement.

6    I have read the documents carefully. I am satisfied, based on the material put before me, that the settlement is a reasonable one and that it is in the best interests of the applicant that the proposed Deed be executed. As I understand it, once that is done and certain other steps are taken, the applicant will seek an order that the proceeding be dismissed with no order as to costs. I am also satisfied that I should make an order that the affidavit of Ms Anderson sworn on 10 March 2015 be confidential. It is always open to parties to settle proceedings without making the terms of settlement public. It seems to me that the applicant should not be in a worse position because a litigation representative has been appointed due to a mental disability.

7    I will make an order under r 9.70 of the Rules that the agreement embodied in the proposed Deed exhibited to Ms Anderson’s affidavit be approved. I will also make an order that the affidavit of Ms Anderson be and remain confidential. It is to be placed in a sealed envelope and marked “Not to be opened without the order of a judge”.

Associate:    

Dated:    7 May 2015