FEDERAL COURT OF AUSTRALIA

Brindle v The Corporation of the Trustee of the Roman Catholic Archdiocese of Brisbane operating as Brisbane Catholic Education [2019] FCA 609

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), Mr Glen Brindle be appointed as litigation representative for the first applicant, Ms Savannah Brindle.

2.    Henceforth, that the first applicant be described in the title heading to documents filed in this proceeding as “Savannah Brindle (by her litigation representative, Glen Brindle)”.

3.    Subject to Orders 1, 4 and 5, pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) and s 59(1) of the Public Trustee Act 1978 (Qld), the settlement of this proceeding set out in the Deed of Release annexed and marked PN-1 to the affidavit of Ms Phuong Nguyen dated 18 March 2019 be approved.

4.    The apportionment of the settlement sum for legal fees of $25,000.00 be paid to the trust account of Anderson Fredericks Turner within 45 days of the date of this Order.

5.    Pursuant to s 59 of the Public Trustee Act 1978 (Qld), the first applicant’s apportionment of the settlement sum be paid to the Public Trustee within 45 days of the date of this Order for the benefit of the first applicant to be administered for her educational and development needs as the Public Trustee deems fit, with any balance remaining at the time of the first applicant reaching majority to be paid to the first applicant directly.

6.    The applicants have leave to file a notice of discontinuance of this proceeding 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

REEVES J:

INTRODUCTION

1    Ms Savannah Brindle, one of the named applicants in this proceeding, who I will refer to throughout as “Savannah”, is 10 years old. When this proceeding was commenced in September 2018, she was nine years old. It follows that Savannah has, at all material times, been a minor and therefore a person under a legal incapacity as defined in the Dictionary to Schedule 1 of the Federal Court Rules 2011 (Cth) (the Rules).

2    Having that status, r 9.61 required that this proceeding be commenced, on her behalf, by a litigation representative. Instead, it was commenced in her name and in the names of her parents. To attempt to overcome this irregularity, an application has now been made to have Savannah’s father appointed as her litigation representative. Mr Brindle has consented to that course.

3    It has been held that a proceeding commenced in this manner is not a nullity and it may be regularised after the event by an application of this kind (see, for example, Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1619 at [26]–[28] per Mansfield J). I am satisfied that Mr Brindle is an appropriate person to act as Savannah’s litigation representative and I will order accordingly.

4    That brings me to the second part of this application: an application to approve a compromise of this proceeding under r 9.70 of the Rules. Notwithstanding his late appointment to the role of litigation representative, I will treat this application as having been brought by Mr Brindle in that capacity, relying upon r 1.34 of the Rules.

5    Rule 9.71 sets certain prerequisites for an application to approve a compromise under r 9.70. It 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.

6    In compliance with r 9.71(2)(a), Ms Phuong Nguyen, Mr Brindle’s lawyer, filed an affidavit in support of this application. Further, in compliance with r 9.71(2)(b) above, Ms Nguyen annexed to her affidavit a copy of a Deed of Release which contains the terms of the compromise agreement (the Deed). That Deed is dated 6 March 2019 and is signed by Mr Brindle as Savannah’s litigation representative. Finally, in purported compliance with r 9.71(2)(c) above, Ms Nguyen also annexed to her affidavit a Memorandum of Advice dated 11 February 2019 prepared by Mr Peter Roney QC. Mr Roney, it should be noted, has appeared for the applicants from the outset of this proceeding, evidenced by the fact that his name appears on the original statement of claim as having settled that document.

7    During and subsequent to the first case management hearing of this application, I raised a number of concerns relating to the terms of the Deed and to compliance with the provisions of r 9.71 above. Shortly thereafter, a number of further affidavits were filed in support of the application, together with a set of written submissions prepared by Ms Kylie Hillard of Counsel and a set of draft orders.

8    At this point, it should be noted that Ms Nguyen’s affidavit and the further affidavits in support mentioned above, together with the annexures described thereto, have been the subject of confidentiality orders under s 37AG of the Federal Court of Australia Act 1976 (Cth). Accordingly, I will not rehearse their contents in these reasons.

9    Based on the body of materials that has now been filed, I am satisfied that the proposed compromise of this proceeding is in Savannah’s best interests and should be approved. I will briefly explain why I have reached this conclusion without transgressing the confidentiality orders mentioned above. Before doing so, it is convenient to outline the three main issues that arose in the course of this application. They are:

(a)    whether Mr Roney’s advice should be accepted as the opinion of an “independent lawyer” as required by r 9.71(2)(c);

(b)    whether the settlement is in Savannah’s best interests; and

(c)    what arrangements are proposed for the retention and administration of the settlement sum pending Savannah reaching her majority.

FACTUAL BACKGROUND

10    The factual background to this application was conveniently summarised in Ms Hillard’s written submissions as follows:

18.    On or about 28 September 2018 [Savannah and Mr and Mrs Brindle] filed a Claim against [Brisbane Catholic Education] alleging that:

(a)    [Savannah] had been discriminated against directly or indirectly in the area of education;

(b)    Each of [Mr and Mrs Brindle] had been discriminated against as an Associate of [Savannah];

(c)    That discrimination centred around the School’s changes to the End of School Plan that enabled [Savannah] to cope with the end of [sic] school day, and where that plan was necessary so that she could attend School;

(d)    The change to the End of School plan on 7 November 2017 was alleged to have [sic] made unilaterally without any consultation in breach of the Disability Standards for Education 2005;

(e)    The success of the case would rise or fall on the factual issues, and establishing that the School acted in a discriminatory manner towards [Savannah] by changing the End of School Plan;

(f)    The success of the case, and award of damages, would rise or fall on the establishment of hurt or harm to [Savannah] prior to her removal from the School; and

(g)    Damages were payable either jointly or individually by [Brisbane Catholic Education] to any one or more of [Savannah and Mr and Mrs Brindle].

19.    On or about 30 November 2018 [Brisbane Catholic Education] filed [its] Defence wherein [it]:

(a)    Accepted that [Savannah] had the stated disabilities;

(b)    Accepted vicarious liability;

(c)    Accepted they were bound by the Disability Standards for Education 2005 and that they had an obligation to consult the parents pursuant to those standards;

(d)    Accepted that the End of School Plan was changed, pleaded that it had an end date and that the change made on 7 November 2017 was not a final decision;

(e)    Pleaded that [Mr and Mrs Brindle] had no case and / or were not entitled to be joined in the matter;

(f)    Pleaded reasonable adjustments; and

(g)    Denied any liability or unlawful discrimination to any of [Savannah and Mr and Mrs Brindle], individually or otherwise.

20.    [Savannah and Mr and Mrs Brindle’s] Reply filed on or about 14 January 2019 broadly maintained the matters contained in the Statement of Claim and that [Mr and Mrs Brindle] were entitled to be joined.

21.    On 7 February 2019, the matter proceeded to a mediation facilitated through the Court, and was mediated by Registrar Buckingham.

22.    On 6 March 2019 the parties signed the Deed of Release (“the Deed”), that was annexed to the affidavit of Ms Nguyen …

(Footnotes omitted)

CONSIDERATION

11    Against this factual background, I now turn to consider the three main issues mentioned above.

(a)    The “independent lawyer” issue

12    In Wade v State of Victoria (No 2) [2012] FCA 1080, Bromberg J held that the requirement in r 9.71 for the opinion of an “independent” lawyer did not mean that the opinion in question had to be obtained from a lawyer with no prior association with the proceeding, but rather that the lawyer providing the opinion did so “in furtherance of the lawyer’s duty to assist the Court and not in furtherance of any duty the lawyer may have to a party in the proceeding” (at [9]). Since that judgment, a number of Judges have followed the same approach. They include Hickey v Public Advocate (Victoria) [2012] FCA 1203 per Gray J; Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041 (Modra) per Tracey J; Jones v State of Victoria [2014] FCA 1404 per North J; and Koenders v State of Victoria [2016] FCA 842 per Davies J. Unsurprisingly, I propose to adopt the same approach in this matter.

13    In my view, Mr Roney’s advice squarely meets this requirement for an independent opinion which is directed to assisting the Court. As Ms Hillard pointed out in her written submissions, Mr Roney has over 40 years’ experience as Counsel at the Independent Bar. He was appointed one of Her Majesty’s Counsel approximately nine years ago and he has practised extensively in the area of discrimination law. He also sits as a sessional member in the Queensland Civil and Administrative Tribunal in its discrimination jurisdiction. Furthermore, the structure and content of Mr Roney’s advice establishes it is of the character referred to above. As to its structure, that was summarised in Ms Hillard’s written submissions as follows:

(a)    Reference to the relevant background in short form;

(b)    Consideration of the pleadings;

(c)    The background of the [Australian Human Rights Commission] proceedings, offers at mediation on 7 February 2019 and the length of time for the mediation;

(d)    The case was a novel one with complex legal and factual issues;

(e)    The weaknesses of [Savannah and Mr and Mrs Brindle’s] case;

(f)    [Mr and Mrs Brindle] relinquishing their claim in favour of [Savannah] receiving payout;

(g)    Reference to two Queensland decisions where schools had been found to engage in discriminatory conduct where in each case the award was $25,000;

(h)    Compared those cases to the present case as they had more serious conduct and consequences;

(i)    The benefits of [Mr and Mrs Brindle] being relieved of legal costs;

(j)    The toll the litigation was taking on [Mr and Mrs Brindle] that he said was evident.

(Footnotes omitted)

14    In view of the confidentiality orders, it is not appropriate for me to elaborate on the contents of Mr Roney’s advice in these reasons. It suffices to say that, having read it, I am satisfied that it complies with r 9.71(2)(c).

(b)    Savannah’s best interests

15    In Modra, Tracey J set out the approach to be taken when the Court is asked to approve a compromise under r 9.70 as follows (at [12]):

In determining whether to sanction a compromise under Rule 9.70(1) of the Rules the Court is concerned only with the benefit of the disabled person: see Gillespie v Alperstein [1964] VR 749. In forming the necessary judgment significant weight will be given to the opinions of the applicant’s legal advisers. In Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191, Megarry J, speaking of an application made on behalf of a minor, said that:

“… there is the important matter of the minors’ benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing 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.”

It is appropriate, therefore, to summarise the views that have been provided to the Court about the present compromise.

16    As well as providing the summary of the structure of Mr Roney’s advice set out above, Ms Hillard reviewed its contents which, for the reasons already stated above, I will not elaborate in these reasons. Thereafter, Ms Hillard referred to a number of comparable decisions or awards in discrimination matters. She then proceeded to identify a number of factors that supported the conclusion that this proposed compromise was in Savannah’s best interest. They included:

[a]    This matter was one of some complexity which is apparent from the pleadings where the Amended Statement of Claim comprises 24 pages and the Reply a further 19 pages. This matter included legal concepts concerning associates where the law regarding this issue has not previously been tested and where there is virtually no case law regarding associates under the Act. The complexity of this matter going to trial is also set out in the affidavit of Mr Anderson, would require numerous witnesses and would require expert evidence …

[b]    The Court cannot fully assess the damages without the benefit of evidence, which Counsel was appraised of when providing his advice …. Mr Roney QC was briefed with relevant matters, and evidence, the pleadings … and other materials …

[c]    When considering the quantum, [Brisbane Catholic Education:] denied the crucial matters of whether there was discrimination[,] whether there was associates discrimination, pleaded reasonable adjustment defences and the mitigation of damages from [Savannah’s] removal from the school … The case also depended on the breach of the Standards if established, giving rise to damages. All of these matters are matters to be overcome at trial and if [Brisbane Catholic Education] succeeded in any, [Savannah and Mr and Mrs Brindle’s] case would almost certainly fail.

[d]    … This case would likely involve trauma to [Savannah and Mrs Brindle] in giving evidence – a clear factor in favour of settlement for all of the parties it would seem …

[e]    There is a real risk that the continued litigation or further negotiation efforts would be untenable for [Mr and Mrs Brindle] given the impact and stress of litigation if the matter does not settle which is a strong factor in favour of [Savannah’s] best interests to favour settlement – such stress can only have a flow on effect to [Savannah] in the home.

(Footnotes omitted)

17    Finally, it is important to record one of the main changes that has been made to the distribution of the settlement sum under the Deed. Originally, approximately 35% of that sum was to be applied to Savannah’s benefit and 65% to legal costs. The revised proposal reverses that distribution so that approximately 65% is to be applied to Savannah’s benefit.

18    Having regard to all of these matters, I am satisfied that this proposed compromise is in Savannah’s best interests.

(c)    Holding and administering the settlement sum

19    Rule 9.70(3) provides:

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.

20    The draft orders submitted by Mr Brindle propose that, until such time as Savannah reaches her majority, the settlement sum should be held by the Public Trustee of Queensland and “administered for her educational and development needs as the Public Trustee deems fit”. In a set of supplementary submissions, I was referred to the proscription in s 59 of the Public Trustee Act 1978 (Qld) as follows:

(1)    In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall, as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such person under a legal disability, whether by verdict, settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the next friend of the plaintiff or to the plaintiff’s solicitor or to any person other than the public trustee unless the court otherwise directs.

…

(4)    All money or damages paid to the public trustee under this section shall, subject to any general or special direction of a court upon application made in that behalf, be held and applied by the public trustee on trust for the person under a legal disability.

(Emphasis added)

21    For guidance, I was also referred to the Supreme Court of Queensland Practice Direction No 15 of 2018 relating to “Persons under a legal disability”. Consistent with the above provisions, paragraph 11 of that Practice Direction provides:

Where the plaintiff is a child, the order should provide for the appointment of a trustee to receive, hold and manage the balance of the compromise sum or judgment sum until the plaintiff reaches 18 …

22    In the circumstances of this matter, I consider that the arrangements proposed by the draft orders for holding and administering the settlement sum are appropriate and I will therefore make orders in those terms.

CONCLUSION

23    For these reasons, I am satisfied that the proposed compromise of this proceeding is in Savannah’s best interests and should, therefore, be approved. Accordingly, the orders will be:

1.    Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), Mr Glen Brindle be appointed as litigation representative for the first applicant, Ms Savannah Brindle.

2.    Henceforth, that the first applicant be described in the title heading to documents filed in this proceeding as “Savannah Brindle (by her litigation representative, Glen Brindle)”.

3.    Subject to Orders 1, 4 and 5, pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) and s 59(1) of the Public Trustee Act 1978 (Qld), the settlement of this proceeding set out in the Deed of Release annexed and marked PN-1 to the affidavit of Ms Phuong Nguyen dated 18 March 2019 be approved.

4.    The apportionment of the settlement sum for legal fees of $25,000.00 be paid to the trust account of Anderson Fredericks Turner within 45 days of the date of this Order.

5.    Pursuant to s 59 of the Public Trustee Act 1978 (Qld), the first applicant’s apportionment of the settlement sum be paid to the Public Trustee within 45 days of the date of this Order for the benefit of the first applicant to be administered for her educational and development needs as the Public Trustee deems fit, with any balance remaining at the time of the first applicant reaching majority to be paid to the first applicant directly.

6.    The applicants have leave to file a notice of discontinuance of this proceeding with no order as to costs.

Associate:    

Dated:    2 May 2019