FEDERAL COURT OF AUSTRALIA

Lewis v The State of Victoria (Department of Education and Training) [2019] FCA 714

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the settlement of this proceeding as set out in the Deed of Settlement and Release marked Annexure AG-1 to the affidavit of Allanah Goodwin affirmed on 19 February 2019 be approved.

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the affidavit of Allanah Goodwin affirmed on 19 February 2019, together with Annexure AG-1 and Annexure AG-2 thereto, are not to be published or disclosed except in accordance with an order of a Justice of this Court, on the ground identified in s 37AG(1)(a), namely, that it is necessary to prevent prejudice to the proper administration of justice.

3.    The affidavit of Allanah Goodwin affirmed on 19 February 2019 and Annexure AG-1 and Annexure AG-2 thereto are to be placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.

4.    The costs of and associated with the interlocutory application dated 19 February 2019 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

KENNY J:

1    Approval is sought of a settlement of this proceeding pursuant to r 9.70 of the Federal Court Rules 2011 (Cth). By his litigation representative, the applicant has brought proceedings against the State of Victoria under the Disability Discrimination Act 1992 (Cth) (DDA) seeking damages (and other relief) on the basis that the State of Victoria committed unlawful disability discrimination against the applicant in the provision of education services.

2    For the reasons set out below, I would approve the settlement.

Background

3    The applicant, Bryce Lewis, is 14 years of age. The State of Victoria accepts that he has a number of disabilities, including Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Anxiety, Severe Language Disorder – Childhood Apraxia of Speech, Post-Traumatic Stress Disorder (with panic attacks) and symptoms of depression.

4    After the applicant’s complaints to the Australian Human Rights Commission alleging disability discrimination in breach of the DDA was terminated by the Commission, the applicant commenced a proceeding in this Court by an originating application filed on 19 April 2018. The proceeding is VID 435/2018.

5    In proceeding VID 435/2018, the applicant by his litigation representative (his mother, Ms Jacinta Lewis) has claimed that the respondent’s conduct contravened s 22(2)(a) of the DDA (discrimination in education) on the basis that his access to benefits provided by the respondent as an educational authority was limited or denied, and that it was also proposed to limit or deny access to relevant benefits. These benefits were:

(a)    full access to the curriculum (both academic and social);

(b)    specialised support designed to assist a student to achieve his or her educational and developmental potential through the engagement of professional and targeted services contracted by the respondent; and

(c)    a safe environment.

The applicant further claimed that the respondent has subjected or proposed to subject him to detriment, in breach of s 22(2)(c) of the DDA. With respect to his claims, the applicant variously relied on ss 5(1), 5(2) and 6(1) of the DDA.

6    The applicant claimed that, by reason of less favourable treatment, failure to provide reasonable adjustments, and imposition of requirements and/or conditions as pleaded, he experienced physical and psychological injury; was denied access to full-time schooling; and was ultimately forced to leave his school (or had no option but to leave it).

7    The respondent denied any discriminatory wrongdoing. It said that it had complied with the Disability Standards for Education 2005 and relied on s 34 of the DDA. The respondent alleged that the applicant had failed to identify a “benefit” within s 22(a) of the DDA. It further alleged that the applicant had not identified “less favourable treatment” and the means by which causation was satisfied. It challenged the applicant’s pleading with respect to “reasonable adjustments”; and positively pleaded that it has actively supported the applicant by making “a number of adjustments over time to address [the applicant’s] needs”. The respondent alleged that the applicant’s pleading of indirect discrimination was fundamentally deficient, and also denied the claims made against it in that regard.

8    The parties attended mediation before a Registrar of this Court in October 2018. At mediation, the parties reached an “in principle” agreement to settle the proceeding. After the mediation, the parties agreed to and made a Deed of Settlement and Release, the terms of which are to remain confidential.

Application for approval of settlement

9    Rule 9.70(1) of the Federal Court Rules requires Ms Jacinta Lewis, as the applicant’s litigation representative, to apply to the Court for approval of the settlement agreement. If the Court approves the agreement, the agreement is binding on the applicant: see r 9.70(2). If the Court does not approve the agreement, the agreement is not binding on the applicant: see r 9.70(4).

10    Rule 9.71 specifies 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.

11    In compliance with r 9.71, Ms Lewis as the applicant’s legal representative applied for an order approving the settlement agreement by an interlocutory application dated 19 February 2019. The application was supported by an affidavit of Ms Allanah Goodwin, solicitor for the applicant and his legal representative, affirmed on 19 February 2019. A copy of the Deed of Settlement and a legal opinion of a lawyer were annexed to Ms Goodwin’s affidavit. The legal opinion supported the approval of the settlement contained in the Deed of Settlement. Orders were sought to preserve the confidentiality of Ms Goodwin’s 19 February 2019 affidavit, the Deed of Settlement and the legal opinion.

Consideration

12    In deciding whether or not to approve a settlement under r 9.70 of the Federal Court Rules for the purpose of making it binding on an applicant under a legal disability, it is well recognised that the Court must be satisfied that the settlement is in the best interests of the applicant, or beneficial to her interests: see, for example, Tsirigotis v The Ivanhoe Grammar School [2018] FCA 2038 at [12]; Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 at [4] (Davies J); Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525 at [27] (Mortimer J); Davies v State of South Australia [2015] FCA 428 at [6] (Besanko J).

13    I have considered the lawyer’s opinion annexed to Ms Goodwin’s affidavit. It is clear that the opinion is that of a lawyer who has been previously involved in the proceeding, as indicated by the fact that the applicant’s concise statement and statement of claim were prepared by him. This raises the question whether the lawyer who gave the opinion meets the description “independent lawyer” in r 9.71(2)(c). In previous decisions, it has been held that the requirement in r 9.71(2)(c) for the opinion of an “independent lawyer” did not necessitate the provision of an opinion from a lawyer who had no previous association with the proceeding. Rather, this required 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”: see Wade v State of Victoria (No 2) [2012] FCA 1080 at [9] (Bromberg J); see also Young v State of Victoria (Department of Education and Training) [2018] FCA 1124 at [18] (Bromberg J). Other judges have followed the same approach: see Brindle v The Corporation of Trustee of the Roman Catholic Archdiocese of Brisbane (as Brisbane Catholic Education) [2019] FCA 609 at [12]-[13] (Reeves J); Turner v Commonwealth [2019] FCA 463 at [13]-[14] (Logan J); Biasin v State of Victoria [2017] FCA 161 at [15] (Kenny J); Koenders at [3] (Davies J); Jones v Victoria [2014] FCA 1404 at [3]-[4] (North J); Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041 at [9]-[10] (Tracey J). This does not exclude the possibility that, in the appropriate case, the Court may form the view that the opinion of a lawyer with no previous association with the proceeding is needed, as, for example, happened in Gray v State of Victoria (Department of Education and Early Childhood Development [2017] FCA 353 (Murphy J).

14    In the present case, however, I accept that the opinion annexed to Ms Goodwin’s affidavit meets the requirement in r 9.71(2)(c) of the Federal Court Rules, in the sense that the opinion has been provided in discharge of the lawyer’s duty to assist the Court. The opinion is helpful. The Court must, however, determine for itself the essential question on which approval depends: see Fisher v Marin [2008] NSWSC 1357 and Tsirigotis at [15]-[16].

15    As well as the lawyer’s opinion and the 19 February 2019 affidavit of Ms Goodwin, I have considered, amongst other things, the issues that fall for determination, the terms of the Deed of Settlement, the exposure to costs associated with a loss, the quantum of prospective damages if the applicant were successful, and other costs implications, as well as the inherent uncertainties of litigation, the stage the proceedings have reached, the stressful nature of a trial for the applicant, and the importance of peace of mind and certainty of outcome. There is also the fact that the applicant, through his litigation representative (and mother), wishes to accept the settlement.

16    Bearing these matters in mind, I am satisfied that the settlement contained in the Deed of Settlement should be approved because the settlement is beneficial to, and in the best interests of, the applicant, Bryce Lewis.

17    I am also satisfied that the proper administration of justice would be prejudiced if Ms Goodwin’s affidavit and its annexures (being the Deed of Settlement and the lawyer’s opinion dated 15 February 2019) were published or otherwise made public. It is therefore appropriate to make an order for non-publication under s 37AF of the Federal Court of Australia Act 1976 (Cth), by reference to the ground set out in s 37AG(1)(a) of that Act in respect of those documents. The Court will also order that the affidavit of Allanah Goodwin and the annexures thereto be placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.

Associate:

Dated:    21 May 2019