FEDERAL COURT OF AUSTRALIA

Young v State of Victoria (Department of Education and Training) [2018] FCA 1124

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to Rule 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in the Deed of Release dated 30 May 2018 (“Deed of Release”) exhibited as “CP-1” to the affidavit of Claire Pirie, affirmed on 13 June 2018, be approved.

2.    The affidavit of Claire Pirie, affirmed on 13 June 2018, and the exhibits thereto, be treated as confidential and hard copies thereof be placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THIS COURT”.

3.    Costs be paid in accordance with the terms of the Deed of Release.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant’s litigation representative has applied for approval of a settlement of this proceeding. The Court’s approval is required by r 9.70 of the Federal Court Rules 2011 (the “Rules”). This rule provides that, if a litigation representative agrees to the compromise or settlement of any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement.

2    The application is supported by the following documents:

(1)    An affidavit of Ms Claire Pirie, a solicitor employed by the applicant’s solicitors, dated 13 June 2018, stating the material facts upon which the litigation representative relies in support of its application, and stating that in Ms Pirie’s opinion, the settlement is in the best interests of the applicant;

(2)    a deed of release between the parties (the “Settlement Deed”) (being an annexure to Ms Pirie’s affidavit); and

(3)    an opinion of Mr David Hancock of counsel dated 8 June 2018 (also annexed to Ms Pirie’s affidavit).

3    Mr Hancock was briefed to act on behalf of the applicant in the proceeding, together with Mr Heaton QC. Mr Hancock expresses the view that the agreement contained in the Settlement Deed is in the best interests of the applicant.

4    The applicant is currently 10 years of age and is a minor and a person under a legal incapacity within the meaning of r 9.61 of the Rules. The applicant alleges that he suffers from the following disabilities each of which are alleged to fall within the definition of “disability” for the purposes of the Disability Discrimination Act 1992 (Cth) (“DDA”):

(1)    Attention Deficit Hyperactivity Disorder (traits);

(2)    Oppositional Defiant Disorder (traits);

(3)    Depression;

(4)    Anxiety;

(5)    Autism Spectrum Disorder (traits);

(6)    Development Coordination Disorder;

(7)    Significant Disruptive Behaviour Disorder;

(8)    behaviours of concern, being a symptom or manifestation of his multiple disabilities, including:

(a)    property destruction;

(b)    injury to self;

(c)    injury to others; and

(d)    absconding

(together, the “disabilities”).

5    The period of the applicant’s claim is February 2013 to February 2016 (the “relevant period”). In that period, the applicant attended the respondent’s schools Drouin South Primary, Drouin Primary and Ripplebrook Primary.

6    In broad terms, the applicant claims that, because of his disabilities, during the relevant period he was the subject of unlawful discrimination of a direct nature (as defined in s 5 of the DDA) and of an indirect nature (as defined in s 6 of the DDA). The applicant makes nine allegations in support of his claim. Those allegations of discrimination are relied upon to allege that the respondent breached s 22 of the DDA.

7    The applicant alleged that the respondent limited and/or denied, and proposed to limit and/or deny, the applicant’s access to benefits provided by the respondent, in breach of s 22(2)(a). Those benefits were:

(1)    full access to the academic curriculum;

(2)    an environment that promoted successful socialisation with other students;

(3)    a safe school environment;

(4)    Student Support Groups established and operating in accordance with the respondent’s guidelines;

(5)    a Functional Behaviour Assessment and Behaviour Support Plan;

(6)    an appropriately trained integration Aide.

8    The applicant also claims that the respondent has subjected and/or proposed to subject him to detriment, consisting of suspension and expulsion, in breach of ss 22(2)(b) and (c) of the DDA.

9    The respondent generally denies any liability for discriminatory conduct.

10    On 30 May 2018, and after the third mediation of the matter, the parties agreed to and made the Settlement Deed. Subject to the approval sought by this application, the Settlement Deed provides for the settlement and discontinuation of these proceedings.

11    It is the Court’s responsibility to determine, for itself, whether the settlement is beneficial to the interests of the person under the disability: Scandolera v Victoria (Department of Education and Early Childhood Development) (2015) 331 ALR 525 (“Scandolera”) at [26]-[27] (Mortimer J). In this determination, the Court should be concerned only with the benefit of the applicant:  Gillespie v Alperstein [1964] VR 749 (Gillard J); Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041 (“Modra”) at [12] (Tracey J).

12    This task requires that I weight the benefits to the applicant under the settlement against what he may secure at trial. I must also weight into the balance the vicissitudes of litigation and the advantages to a litigant of securing, through a settlement, a reasonable compromise which might avoid the financial burdens and potential risks of litigation, as well as the pressure upon an applicant and his or her family that the litigation will likely entail. There are both tangible and intangible benefits to an applicant in arriving at a reasonable compromise of his or her proceeding and those matters need to be taken into account when the Court assesses whether a settlement is beneficial to the interests of the applicant. As I stated in Wade v State of Victoria (No 2) [2012] FCA 1080 (“Wade”) at [6], the task faced by the Court will usually be difficult and heavily reliant upon the opinion provided by an independent lawyer as required by r 9.71(2)(c) of the Rules. For this reason, as Megarry J observed in Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191, as cited by Tracey J in Modra at [12], “[e]xpressing 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    The opinion prepared by Mr Hancock contains a clear and detailed discussion of the claim and appears to be well reasoned. The opinion properly canvasses each of the allegations made by the applicant and the respondent’s defence to those allegations. It includes Mr Hancock’s assessment of the strength of the applicant’s case and the likelihood of its success. Mr Hancock reviewed awards of compensation made in similar cases and the likely quantum of damages if the matter proceeded to trial and the claims were established. He has also taken into account the vicissitudes of litigation and the possible exposure of the applicant’s litigation representative to an adverse costs order. The trial would have been lengthy and complex and would have involved a significant number of lay and expert witnesses and the expenditure of significant legal resources.

14    Mr Hancock has taken into account each of the components of the settlement and assessed the benefit to the applicant of each such component, including taking account of the personal circumstances of the applicant and the importance of particular terms of the settlement to him and his family.

15    The opinion of Mr Hancock deals with the issue of the emotional and psychological strain of the litigation on the applicant and his family. In this respect, in addition to providing certainty to the applicant and his family, I note that the Settlement Deed allows the applicant and his family to say that the proceedings have resolved in the applicant’s best interests, and that the result is a good one for the applicant.

16    Mr Hancock concluded that the offer made by the respondent is fair and reasonable and that overall the settlement represents a good outcome for the applicant. He considers that acceptance of the settlement is in the applicant’s best interests in both the short term and in relation to the applicant’s ongoing needs for the future.

17    The Settlement Deed provides for the payment of the settlement sum to the Supreme Court of Victoria Senior Master’s Fund. In Scandolera at [42], Mortimer J considered orders designed to enable the settlement sum to be paid to that fund to be “the most appropriate orders” in the circumstances of that case. I consider the payment of the settlement sum to that fund to be similarly appropriate in this instance.

18    A separate question arises as to whether I should accept the opinion of Mr Hancock as an “opinion of an independent lawyer” for the purposes of r 9.71(2)(c), in circumstances where Mr Hancock had been briefed to act for the applicant in the proceeding. In Wade at [7]-[9] I construed the reference to an “intendent lawyer” in r 9.71(2)(c) as not excluding a lawyer who may have had a prior association with the proceeding but whose opinion was provided in furtherance of that lawyer’s duty to assist the Court and not in furtherance of any duty the lawyer may have had to a party in the proceeding. I noted that in many cases the substantial additional costs involved in obtaining the opinion of a lawyer with no prior knowledge or familiarly with the proceeding may be prohibitive. I observed that the Court has a capacity to dispense with the requirement of r 9.71(2)(c). In that case, I determined that if it were the case that r 9.71(2)(c) required that an opinion be provided by a lawyer who had no prior association with the proceeding, I would dispense with the requirement made by that Rule. Wade has since been followed in Modra at [9] (Tracey J), Hickey v Public Advocate (Victoria) [2012] FCA 1203 at [10]-[11] (Gray J), Koenders v Victoria [2016] FCA 842 (Davies J) and Biasin v State of Victoria [2017] FCA 161 at [15]-[16] (Kenny J).

19    In the circumstances of this case, I consider it appropriate to receive and rely upon the opinion of Mr Hancock. It would be productive of unnecessary expense disproportionate to the circumstances of the proceeding to require another lawyer to be engaged to prepare an opinion. Accordingly, I propose to follow the same course here as that which I adopted in Wade.

20    Based on the comprehensive and reasoned opinion of Mr Hancock and my own consideration of the pleadings and the terms of the Settlement Deed, I am satisfied that the settlement amount and the settlement terms are in the applicant’s best interests and should be approved.

21    Consistent with the terms of the Settlement Deed, I will also make orders that the affidavit of Ms Pirie annexing the Settlement Deed and Mr Hancock’s opinion be treated as confidential and that costs be dealt with in accordance with the terms of the Settlement Deed.

Associate:

Dated:    31 July 2018