FEDERAL COURT OF AUSTRALIA

Kemp v State of Victoria (Department of Education and Training) [2018] FCA 1327

ORDERS

THE COURT ORDERS THAT:

1.    The settlement of this proceeding set out in the Deed of Settlement and Release marked as Exhibit CP-1 to the affidavit of Claire Pirie affirmed 27 July 2018 be approved.

2.    For the purposes of s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), to prevent any prejudice to the proper administration of justice, Exhibit CP-1 to the affidavit of Claire Pirie affirmed 27 July 2018 must be treated as confidential to the parties in this proceeding and until further order:

(a)    must be marked as confidential to the parties on the Court’s Electronic Court File; and

(b)    must not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

3.    For the purposes of s 37AG(2) of the Federal Court of Australia Act, to prevent any prejudice to the proper administration of justice, Exhibit CP-2 to the affidavit of Claire Pirie, affirmed 27 July 2018, must be treated as confidential to the applicant in this proceeding and until further order:

(a)    must be marked as confidential to the applicant on the Court’s Electronic Court File; and

(b)    must not be available for inspection by the respondent or for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

4.    Costs in relation to the interlocutory application filed on 27 July 2018 are to be costs in the proceeding.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application for approval of a settlement for the applicant, who is currently almost 12 years old. The settlement relates to claims of disability discrimination contrary to s 22, read with ss 5 and 6, of the Disability Discrimination Act 1992 (Cth) as well as alleged contraventions of s 32 of the DDA.

2    For the reasons set out below, I am satisfied that the settlement should be approved.

Background

3    The applicant, Thomas, is contended to have a number of disabilities within the meaning of s 4 of the DDA, including Autism Spectrum Disorder, fine and gross motor skill delay and an intellectual disability. It is also contended that Thomas has a range of behaviours which are alleged to be manifestations of his disabilities (including slapping, biting, exposure and breaking items). He brings this proceeding through his litigation representative, Ms Melissa Kemp, who is his mother.

4    The respondent, through the Department of Education and Training, operates Mount View Primary School and Eastern Ranges School, both of which Thomas attended during the period of the alleged discrimination, which runs from February 2012 to 17 December 2017. At least at the time the respondent filed its defence in April 2018, Thomas was still attending Eastern Ranges School. There is no dispute that the respondent is an educational authority and an educational provider for the purposes of ss 4 and 22 of the DDA.

5    The respondent admits, by reference to medical evidence, that Thomas has Autism Spectrum Disorder and an intellectual disability, and that he has severe expressive language impairment and severe receptive language impairment. It is apparent from the pleadings that Thomas’s educational and social needs are, in the context of a school environment, considerable.

6    In September 2016, a complaint was made on Thomas’s behalf to the Australian Human Rights Commission, under s 46P of the Australian Human Rights Commission Act 1986 (Cth). That complaint was terminated by the Commission on 7 July 2017, and the applicant commenced proceedings in this Court on 5 September 2017. After he had commenced proceedings, a second complaint he had lodged in the Commission was terminated (on 9 May 2018) and amendments were made to the current proceeding to bring into this proceeding the substance of the allegations in the second complaint. The allegations made in both sets of complaints to the Commission were set out in an amended statement of claim dated 7 March 2018. The settlement that has been reached by the parties deals with all allegations made on behalf of Thomas.

7    The conduct alleged to constitute unlawful discrimination falls into several categories. There are allegations that:

(a)    Throughout his schooling, Thomas has been subjected to segregation and exclusion;

(b)    The respondent failed to provide a reasonable adjustment to Thomas, namely a “functional behaviour assessment” of the kind alleged in the amended statement of claim;

(c)    The respondent failed to provide a reasonable adjustment to Thomas, namely what is described as a “functional communication method” in order to enable him to communicate effectively while he was at school; and

(d)    The respondent failed to provide a reasonable adjustment to Thomas, namely what is described as a “structured social skills program” which would assist him in socialising with his peers and interacting with them.

8    Each of the four categories of conduct above are also alleged to involve breaches of the Disability Standards for Education 2005 (Cth), made under s 31 of the DDA. It is further alleged that the respondent indirectly discriminated against Thomas by imposing a condition or requirement on him that he access the education curriculum at the two schools without what is described in the amended statement of claim as a “functional behaviour assessment/ behaviour intervention plan”. In other words, the allegation at [7(b)] above is put as both direct and indirect discrimination.

9    Declaratory relief and damages were sought in relation to all the claims.

10    By its defence, the respondent denies that any unlawful discrimination has occurred, and denies that there have been any contraventions of the Disability Standards. It contends that, to the extent necessary, Thomas was provided with “specialist support services” within the meaning of the Disability Standards, and that reasonable adjustments within the meaning of the DDA have been provided to Thomas to assist him to access and participate in his education.

11    In its defence, the respondent sets out an extensive list of the support services and adjustments it contends it has provided to Thomas during the period of the alleged discrimination. It also denies there was any segregation or exclusion of the kind alleged by the applicant, and contends that any arrangements which had been in place for Thomas at his schools in terms of seating were made taking into account not only Thomas’s needs, but the needs of other students, together with any risks to the health and safety of other students posed by Thomas’s behaviour or, at times, by his state of health. The respondent disputes the need for the kind of “functional behaviour assessment” the applicant contended should have been provided and contested the characterisation of such an assessment (at least as alleged by the applicant) as a reasonable adjustment. The respondent denies that Thomas “required” an augmentative and alternative communication method of the kind alleged by the applicant in order to communicate. It further contends that in terms of the social skills which were included in Thomas’s curriculum, specific and appropriate methods were used to teach Thomas necessary social skills and to incorporate them into his interactions with his peers.

12    The pleadings having been filed, the matter was referred to mediation before a Registrar and the mediation commenced on 28 May 2018. The Court was informed on 3 July 2018 that the parties had reached an agreed resolution of the proceeding. In the affidavit in support of the application for approval of the settlement, the applicant’s solicitor, Ms Claire Pirie, deposes (at [3]) that the final terms of settlement were executed on 24 July 2018. This application for approval of the settlement was made on 27 July 2018. It is, as I have noted, supported by an affidavit of Ms Pirie, affirmed on 27 July 2018. The settlement deed is exhibited to her affidavit, as is an opinion of counsel concerning whether the settlement reached is in the applicant’s best interests.

13    The Court was informed that the respondent was aware of the interlocutory application, and indeed on 3 July 2017, a Registrar of this Court ordered that the applicant file such an application. The Court was informed that the interlocutory application would be served on the respondent, but that the applicant did not intend to serve a copy of the affidavit as “it contains confidential and legally sensitive information, namely the opinion of Counsel in relation to the settlement”. The applicant requested that “the enclosed documents be treated as confidential and not be released without Court order”.

14    On 22 August 2018, the parties were informed that the Court proposed to make orders substantially in the same form as those made by the Court in Elliott v State of Victoria [2018] FCA 1029, and were given an opportunity to make submissions about that proposed form of order. No submissions were made by either party.

15    In Elliott, at [24]-[25], I said:

I am also satisfied it is appropriate to make limited orders pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth), preserving the confidentiality of the opinion given by counsel, and the terms of settlement. I am satisfied that the protection afforded by the prospect of a confidentiality regime under s 37AG as to the final terms of settlement, including but not limited to any payment made, has encouraged and facilitated the resolution of the proceeding. I consider it unlikely that such a settlement would have occurred without the prospect of such protection. The interests of the administration of justice are served by the making of limited orders to preserve the confidentiality of the terms, and of counsel’s opinion. The interests of justice are served not only for these parties, but so that future parties can also have confidence the Court may be prepared to facilitate the resolution of these kinds of proceedings by including such orders in any approval of a settlement. The resources of the parties and the Court have been conserved, and finality has been brought to a dispute which would have been intensive and time consuming for all concerned. Instead, the parties and potential witnesses on both sides, including the teachers involved, and Jennifer and her family, can move on. It is to be hoped that the future will be positive for Jennifer.

I am not persuaded there is anything about the interlocutory application itself, or the body of the supporting affidavit, which justifies orders under s 37AG. The manner in which an application for final orders is made, and the affidavit evidence to support it (aside from the terms of settlement themselves and counsel’s opinion) do not have the necessary quality of confidence about them. There are no wider interests served by making orders under s 37AG in respect of these documents, and indeed the interests of justice are better served by these documents being publicly available so that the basis for the Court’s final orders has some public form.

16    I adhere to those opinions and propose to adopt the same approach in this proceeding.

Resolution

17    Rules 9.70 and 9.71 of the Federal Court Rules 2011 (Cth) provide:

9.70     Compromise or settlement of matter in proceeding

(1)     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)     If the Court approves the agreement, the agreement is binding on the person by or for whom it was made as if:

(a)     the person were not under a legal incapacity; and

(b)     the litigation representative had made the agreement as the person’s agent.

(3)     The Court may, as a condition of approval, require that any money or other property payable for the benefit of a person under a legal incapacity be dealt with by way of a settlement, or in any other way that the Court considers appropriate.

Note:    The Court may give approval subject to conditions—see rule 1.33.

(4)     If the Court does not approve the agreement, the agreement is not binding on the person under a legal incapacity.

9.71    Application by litigation representative for approval of agreement

(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.

18    In Elliott, at [17]-[19], I set out my opinions in relation to the approach that should be taken to an approval of settlement in a case such as this and I adhere to those opinions and do not repeat them. In the present proceeding, the settlement agreed by the parties includes the payment of a settlement sum to the applicant by the respondent, through the mechanism of payment to the Senior Master of the Supreme Court of Victoria, so that the settlement sum may be held as funds in Court for the benefit of Thomas. This is the same approach that was taken in both Elliott and in Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525, and I accept it is an appropriate approach. The settlement also includes an agreement that the respondent will pay the applicant’s reasonably incurred legal costs, subject to a process set out in the deed of settlement. Ms Pirie deposes that the applicant’s solicitors will not charge the applicant legal fees over and above the amount they recover from the respondent on a party/party basis.

19    The settlement agreement contains other terms which are, I am satisfied, likely to be of practical assistance to Thomas. They are substantive and they are related to his educational needs.

20    I have also considered the opinion of counsel which was exhibited to Ms Pirie’s affidavit.

21    Having considered all the evidence, and taking account of the nature of the allegations against the respondent, which in this proceeding were highly fact-intensive and would have required prolonged and complicated litigation, including involving the teachers at the school Thomas has most recently attended and (although it is not clear on the evidence), may still be attending, I am satisfied it is in Thomas’s best interests for the settlement to be approved. I am satisfied that the terms of settlement as agreed by the parties are likely to be of substantial benefit to Thomas, both in the near future and in the longer term. For the matter to be resolved without a contested hearing will be of considerable benefit to Thomas, and to his family. His schooling, personal and social development can continue not only with the benefit of the settlement, but also in an atmosphere where the stress of litigation has been removed. This includes removing the need for anyone who is currently involved in his medical or educational care to have to give evidence while continuing to treat or assist Thomas, which is a situation more conducive to Thomas’s positive development.

22    Orders will be made in the form foreshadowed to the parties.

Associate:

Dated:    31 August 2018