Federal Court of Australia

Tsirigotis v State of Victoria (Department of Education and Training) [2020] FCA 1771

ORDERS

THE COURT ORDERS THAT:

1.    The settlement of these proceedings, as set out in the Deed of Release marked as Annexure “DT-2” to the affidavit of Dina Tsirigotis, affirmed 2 November 2020, be approved pursuant to r 9.70 of the Federal Court Rules 2011 (Cth).

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, Annexures “DT-2” and “DT-3” to the affidavit of Dina Tsirigotis, affirmed 2 November 2020, must be treated as confidential to the parties to 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.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

introduction

1    By an application dated 4 November 2020, Mrs Dina Tsirigotis, the First Applicant’s mother and litigation guardian, applies for approval of a settlement pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) and seeks confidentiality orders under s 37AF of the Federal Court Act 1976 (Cth) (approval application). The application is made with the Respondents’ consent.

2    For the following reasons, I am satisfied that the settlement is in the best interests of the First Applicant and should be approved. I am also satisfied that it is appropriate to make the confidentiality orders sought by the parties, in order to prevent prejudice to the proper administration of justice: see s 37AG(1)(a) of the Act.

background

Relevant circumstances

3    The First Applicant, Stephanie Tsirigotis, was born on 3 July 2007 and is currently 13 years old. The First Applicant has a number of disabilities, including autism spectrum disorder and imputed borderline IQ. Mr Frank Tsirigotis and Mrs Tsirigotis are the First Applicant’s primary caregivers.

4    From February 2018 to June 2019, the First Applicant attended Alphington Primary School, a school operated and administered by the State of Victoria and Department of Education and Training. However, since proceedings were commenced in November 2018, the First Applicant’s circumstances, as well as those of her family, have changed significantly.

5    The First Applicant no longer attends that school. She is currently undertaking a placement at Irabina Autism Services, which is funded by the National Disability Insurance Scheme (NDIS). However, it is anticipated that the First Applicant will transition back to attending a school operated by the State in due course. Further, Mrs Tsirigotis has recently been diagnosed with a serious illness, a circumstance which undoubtedly bears upon the First Applicant’s best interests.

Procedural history

6    The First Applicant and Mrs Tsirigotis (together, the Applicants) commenced three separate but related proceedings in this Court:

(a)    Stephanie Tsirigotis (by her next friend, Dina Tsirigotis) and Dina Tsirigotis v State of Victoria (Department of Education and Training) and Christopher Thompson (VID1514/2018) (the First Federal Court Proceeding);

(b)    Stephanie Tsirigotis (by her next friend, Dina Tsirigotis) and Dina Tsirigotis v State of Victoria (Department of Education and Training) and Christopher Thompson (VID679/2019) (the Second Federal Court Proceeding); and

(c)    Stephanie Tsirigotis (by her next friend, Dina Tsirigotis) v State of Victoria (Department of Education and Training) (VID 1159/2019) (the Third Federal Court Proceeding),

  collectively, the Proceedings.

7    In summary, the Proceedings concern allegations of unlawful discrimination and victimisation, which the Applicants allege occurred while the First Applicant attended Alphington Primary School. The Amended Statement of Claim is a lengthy and complex document, which alleges, inter alia, direct and indirect discrimination within the meaning of ss 5 and 6 of the Disability Discrimination Act 1992 (Cth).

8    The Respondents have previously foreshadowed that aspects of the Applicants’ pleaded claims were fundamentally deficient and indicated they would apply to the Court for the pleaded case to be struck out, or for the provision of further and better particulars. However, prior to any interlocutory applications being heard by the Court, the parties agreed to settle the Proceedings on terms set out in the Deed of Release.

9    All parties consider that the settlement is in the best interests of the First Applicant and that settlement should occur before the parties incur significant additional costs in the matter, including in relation to interlocutory applications, re-drafting of claims and / or the resolution of the matter at trial.

10    For completeness, I note that Mrs Tsirigotis made an application pursuant to r 9.63 of the Rules to be appointed the First Applicant’s litigation representative in the First Federal Court Proceeding on 21 February 2019. For reasons that are not presently clear, that application was never determined. Accordingly, I made orders on 4 September 2020 to the effect that Mrs Tsirigotis be appointed the First Applicant’s litigation guardian nunc pro tunc in each of the First, Second and Third Federal Court Proceedings.

settlement approval

11    Rule 9.70(1) of the Rules requires Mrs Tsirigotis, as litigation guardian, to apply to the Court for approval of the settlement or compromise. If the Court approves the settlement, the agreement is binding on the First Applicant as if she were not under a legal incapacity: r 9.70(2). If the Court does not approve the settlement, the agreement is deemed not to be binding on the First Applicant: r 9.70(4).

12    In determining whether to approve a settlement under r 9.70 of the Rules, it is well established that the Court must be satisfied that the settlement is in the best interests of the applicant, or beneficial to her interests: see, eg, Lewis v The State of Victoria (Department of Education and Training) [2019] FCA 714 at [12] (Kenny J). This, in turn, requires the Court to consider the relative advantages and disadvantages of the litigation continuing: Murrell v Mansfield Autism Statewide Services [2020] FCA 943 at [17] (Mortimer J).

13    This includes considering the following factors:

(a)    whether, and to what extent, the settlement contains a substantive benefit to the applicant: see, eg, Tsirigotis v The Ivanhoe Grammar School [2018] FCA 2038 at [15] (Mortimer J); James v WorkPower Inc [2019] FCA 1239 at [11] (Mortimer J);

(b)    whether the applicant might be able to secure a more advantageous outcome if the matter proceeds to trial: see, eg, Murrell at [17];

(c)    the prospects of the applicant at trial if the proceedings were continued (Fisher v Marin [2008] NSWSC 1357 at [35]-[37] (Rothman J)), including the prospects of an appeal: Murrell at [17]; and

(d)    other consequences of continuing the litigation, such as costs pressures imposed upon the applicant and / or her family, and the emotional and psychological strain of litigation on the applicant and / or her family: see, eg, Murrell at [17]; James at [14].

14    Further, r 9.71 of the Rules provides that an application for approval of a settlement in this context must be accompanied by the following:

(a)    an affidavit stating the material facts on which the application relies: r 9.71(2)(a);

(b)    the agreement or compromise that is sought to be approved: r 9.71(2)(b); and

(c)    an independent legal opinion explaining why the agreement is in the best interests of the person under a legal incapacity: r 9.71(2)(c).

15    In this matter, the approval application is relevantly supported by an affidavit of Mrs Tsirigotis, affirmed 2 November 2020. That affidavit annexes an undated Deed of Release entered into between all parties to the proceedings and an independent opinion of Dr Laura Hilly of counsel, dated 14 October 2020 (Confidential Opinion), which supports the settlement being approved by the Court. The parties also filed joint submissions in relation to the approval application on 4 December 2020.

16    The only question which remains is therefore whether the settlement is in the best interests of the First Applicant. Although I am constrained in the matters I am able to expressly refer to, there are three considerations which I consider support the approval of the settlement.

17    First, a number of circumstances have changed since the proceeding was originally filed. The First Applicant no longer attends the school where the alleged discrimination occurred and the materials filed indicate that her placement at Irabina has been beneficial. The family is also now experiencing additional challenges, on account of Mrs Tsirigotis’ illness.

18    Second, it is apparent that the pleadings are complex and require refinement. A great deal of time and expense will be required before the matter can be listed for trial. These considerations suggest that the risk of a protracted trial and expense of continuing the litigation are likely not to be commensurate with the prospects of success at trial.

19    Third, without disclosing anything substantive about the Deed of Release or Confidential Opinion, I am satisfied that the terms of the settlement are beneficial to the First Applicant. In this respect, I have taken into account willingness of the State to facilitate the First Applicant’s ongoing education, deposed to in the affidavit of Mrs Tsirigotis.

confidentiality orders

20    Sections 37AF of the Act provides that the Court may make orders prohibiting or restricting the publication of information lodged or filed with the Court. One of the grounds for making such an order is where it is necessary to prevent prejudice to the proper administration of justice. I am satisfied that the confidentiality is an important factor in encouraging and facilitating the resolution of proceedings such as the present and that settlement may not have been achieved without such protection: Elliott v State of Victoria (Department of Education & Training) [2018] FCA 1029 at [24] (Mortimer J), cited with approval in Kemp v State of Victoria (Department of Education and Training) [2018] FCA 1327 at [15] (Mortimer J). The Court has routinely made confidentiality orders to similar effect in other proceedings (see, eg, Hartigan-Dunn v State of Victoria (Department of Education and Early Childhood Development) [2019] FCA 1146 at [10] (Davies J); Lewis at [17]; James at [18]) and I see no basis to depart from that approach. It is plainly important that parties have confidence that the terms of a settlement deed, or the independent opinion of counsel, will remain confidential.

disposition

21    For the reasons above, I am satisfied that the settlement should be approved and make orders preserving confidentiality of the Deed of Release and Confidential Opinion.

Associate:

Dated:    10 December 2020