FEDERAL COURT OF AUSTRALIA

Hartigan-Dunn v State of Victoria (Department of Education and Early Childhood Development) [2019] FCA 1146

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the settlement of this proceeding set out in the settlement deed marked as Annexure MC1 to the affidavit of Maria Civisic sworn on 25 June 2019 be approved.

2.    The settlement moneys set out in the settlement deed be paid to the litigation representative Kelly Hartigan, to be held on trust for the applicant Brydie Hartigan-Dunn and used for her benefit.

3.    The applicant has leave to file a notice of discontinuance of this proceeding with no order as to costs.

4.    Pursuant to s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), Annexures MC1 and MC2 to the affidavit of Maria Civisic dated 25 June 2019 are to be retained in envelopes marked and treated as confidential and are to be marked “not to be opened without the permission of a Judge of this Court”.

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

REASONS FOR JUDGMENT

(Revised from transcript)

DAVIES J:

1    Application has been made by the applicant’s litigation representative for approval of a settlement reached between the parties in this proceeding. The Court’s approval is required by virtue of r 9.70 of the Federal Court Rules 2011 (Cth) (“the Rules”), which provides as follows:

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.

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

2    Rule 9.71 also sets out what must accompany the application for approval:

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.

3    As required by r 9.71, the application is supported by an affidavit of Ms Maria Civisic, the solicitor for the applicant and her legal representative. The affidavit exhibits a copy of the proposed deed of settlement and a legal opinion of Mr David Hancock of counsel. The legal opinion given by Mr Hancock is that the settlement is in the applicant’s best interests to accept. Ms Civisic has also deposed that she is of the opinion that the settlement is in the best interests of the applicant.

4    In deciding whether or not to approve a settlement under r 9.70 of the Rules for the purpose of making it binding on an applicant under a legal disability, the Court must be satisfied that the settlement is in the best interests of the applicant or beneficial to her interests: Tsirigotis v The Ivanhoe Grammar School [2018] FCA 2038 at [12] (Mortimer 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).

5    By her litigation representative, the applicant has brought proceedings against the State of Victoria under the Disability Discrimination Act 1992 (Cth), seeking damages and other relief on the basis that the State of Victoria committed unlawful disability discrimination against her in the provision of education services. The claims are defended by the respondent.

6    In his legal opinion, counsel expressed his view about the likely prospects of success in this proceeding as well as various other matters which, in counsel’s opinion, materially bear upon the reasonableness of the settlement reached between the parties. Those matters include a comparison of awards of compensation made in other cases where children have been successful in establishing claims of unlawful discrimination, counsel’s view of the damages likely to be awarded to the applicant if the matter proceeded to trial and the claims were established, the possible exposure of the applicant to an adverse costs order if the applicant were unsuccessful if the matter proceeded to trial, and the fact that the settlement sum will not be reduced by legal fees taken out by the applicant’s lawyers. The opinion also addresses the stress that the litigation has caused the applicant’s family and the benefits of certainty of outcome and peace of mind for the applicant going forward.

7    Mr Hancock has acted on behalf of the applicant in the proceeding but, although he has been involved in the proceeding as counsel for the applicant, I accept that the opinion given by him meets the description of an opinion of an “independent lawyer” required by r 9.71(2)(c) of the Rules. As the authorities show, the requirement for the opinion of an independent lawyer does not necessitate the provision of an opinion from a lawyer who has had no previous association with the proceeding: Lewis v Victoria [2019] FCA 714 at [13] (Kenny J). Rather, the requirement is for an opinion provided by a lawyer “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). There is no reason to doubt that the opinion given by Mr Hancock was consistent with his duty to the Court.

8    In addition to considering the deed of settlement and Mr Hancock’s opinion, I have also reviewed the court documents and the witness statements filed. Taking all matters into account and giving weight to the opinion given by Mr Hancock for the reasons that he set out in some detail, I am satisfied that the settlement contained in the proposed deed of settlement should be approved because the settlement is beneficial to, and in the best interests of, the applicant.

9    The amount of the settlement sum is relatively small and the deed provides for the payment of the settlement sum to the litigation representative to be held on trust for the applicant and to be used for her benefit. In view of the quantum of the settlement sum, it seems to me that such an arrangement is appropriate in the present case for the preservation of the settlement sum for the applicant’s benefit and that this is not a case where the Court should consider an order that the amount be paid into the Victorian Supreme Court under the administration of the Senior Master.

10    An order is also sought that both the settlement deed and the opinion of Mr Hancock be kept confidential. I am satisfied that it is appropriate for such an order to be made in the administration of justice and will so make that order.

Associate:    

Dated:    30 July 2019