Federal Court of Australia
Bayles by his litigation representative Bayles v Nationwide News Pty Limited (No 2) [2020] FCA 1393
ORDERS
QUADEN BAYLES BY HIS LITIGATION REPRESENTATIVE YARRAKA BAYLES First Applicant YARRAKA BAYLES Second Applicant | ||
AND: | First Respondent MIRANDA DEVINE Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the agreement to settle the first applicant’s claims, recorded in annexure DF-1 to the affidavit of Duncan Mark McKenzie Fine sworn on 23 September 2020, be approved.
2. The proceeds of the settlement be paid into the bank account held in the name of the Quaden Bayles Trust.
3. The matter be stood over for case management at 9.30am on 6 November 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from transcript)
KATZMANN J:
1 Quaden Bayles is a nine-year old boy who since birth has suffered from a condition known as achondroplasia dwarfism. It is a matter of some notoriety that this year, in early February, his mother, Yarraka, posted on social media a video clip in which Quaden appeared to be in extreme distress after being bullied at school. Her stated purpose was to raise awareness and highlight the impacts of bullying. The video went “viral”, attracting international attention. Many people were moved by it. One such person established a “Go Fund Me” account to raise money to enable Quaden to travel to Disneyland.
2 On or about 20 February claims were made on Twitter that Quaden was an actor and that the video was fake (the tweets). The insinuation was that the video was a money-making scam.
3 Miranda Devine is a well-known Australian journalist and columnist for The Daily Telegraph, published by Nationwide News Pty Ltd. She is currently in New York working on secondment for another News Corp tabloid, The New York Post. Ms Devine re-tweeted some of the tweets on her personal Twitter account and commented on them.
4 On 31 July Ms Bayles instituted proceedings in this Court alleging that Ms Devine had defamed her and her son in these tweets. She alleged that News, for various reasons, including the fact that it was Ms Devine’s employer and promoted her Twitter account, was also liable and she sought damages from them both.
5 No defences have been filed.
6 On 10 September I was informed that the parties had reached a settlement. As Quaden is a child and therefore under a legal incapacity, the settlement of his claim is not binding without the Court’s approval.
7 On 22 September 2020 an interlocutory application was filed seeking that approval pursuant to r 9.70 of the Federal Court Rules 2011 (Cth). The Court’s jurisdiction is a protective one. Its task is to determine whether the settlement is in Quaden’s best interests.
8 The application was supported by an affidavit of Duncan Fine, Special Counsel at Centennial Lawyers who act for the applicants. Annexed to the affidavit are copies of a signed deed of release containing the terms of settlement, advice from an independent lawyer, Vasilios (Bill) Kalantzis, and a deed dated 12 May 2020 establishing a trust fund in Quaden’s name and for his benefit into which it is proposed that the settlement sum be paid.
9 The terms of settlement provide for pecuniary and non-pecuniary relief and the settlement sum is not insubstantial.
10 Since the deed was executed, Ms Devine has published an apology on her Twitter account which has been widely reported. In that post she referred to the comments she made in February and acknowledged that they were “hurtful and untrue”.
11 Mr Kalantzis was provided with a copy of the concerns notices issued to the respondents, the statement of claim, and an unsigned copy of the deed of release. His opinion is that the proposed settlement for Quaden is fair and appropriate, having regard, amongst other things to Quaden’s youth, the inherent risks and uncertainty of litigation, the agreed and “fulsome” apology, and the achievement of vindication at an early stage of the litigation.
12 Mr Kalantzis was admitted as a solicitor in 1992. For over 25 years he has largely practised defamation law, initially as an in-house legal counsel for a publisher of foreign language newspapers and magazines, and later in his own right since which time he has acted for both plaintiffs and defendants. His advice contains a more detailed summary of his relevant experience. I am satisfied that he has had more than enough experience to proffer the opinion.
13 The applicants’ lawyers support the settlement. Their counsel informed the Court that in her opinion the settlement was highly beneficial to Quaden and that her solicitors were of the same view.
14 In determining whether to approve a settlement agreement under r 9.70, significant weight will be attached to the opinions of the applicants’ legal advisers: Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191 (Megarry J); Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041 at [12] (Tracey J).
15 I also heard briefly from Ms Bayles and am satisfied on the basis of her evidence that she supports the settlement and considers it to be in her son’s best interests.
16 In these circumstances the settlement should be approved. I am also prepared to order that the proceeds of the settlement be paid into the nominated account held by the trust. The trust deed was drawn up by a reputable firm of solicitors and the trustees of the trust fund are Ms Bayles and her sister.
17 By consent, the applicants requested that the matter be stood over for case management on 6 November 2020.
18 There will be orders accordingly.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. |
Associate:
