Federal Court of Australia

Boyd v State of New South Wales (Department of Education) [2026] FCA 1190

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 marked as ‘DB-3’ to the affidavit of Deborah Boyd affirmed 3 June 2026, be approved.

2.    For the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth), the Annexures DB-3 and DB-4 to the affidavit of Deborah Boyd affirmed 3 June 2026 be treated as confidential to the parties to this proceeding and:

(a)    be marked as confidential to the parties on the Court’s file; and

(b)    not be available for public inspection, without the leave of a judge of the Court.

3.    The application otherwise be dismissed.

4.    There be 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

BROMWICH J:

1    A person under a legal incapacity may only start or defend a proceeding by a litigation representative. The applicant, Eloise Boyd, a minor, has a legal incapacity for at least some of the reasons detailed below. This proceeding was started in her name by her mother, Ms Deborah Boyd (Ms Boyd), who has been appointed as her litigation representative. The proceeding alleges disability discrimination, and thereby contraventions of the Disability Discrimination Act 1992 (Cth) (DDA) and the Disability Standards for Education 2005 (Disability Standards). The respondent is the State of New South Wales as represented by the Department of Education. The Department denies the disability discrimination allegations.

2    If a litigation representative agrees to the compromise or settlement of any matter in dispute in a proceeding in this Court, an application for approval of it is required by r 9.70(1) of the Federal Court Rules 2011 (Cth). An application for such approval is required to be made in accordance with r 9.71. If such an agreement is approved by the Court, it is binding on the person by or for whom it was made as if the person was not under a legal incapacity and the litigation representative had made the agreement as the person’s agent: r 9.70(2). If it is not approved, it is not binding on the person: r 9.70(4).

3    By an interlocutory application dated 3 June 2026 and filed the same day, Eloise Boyd, by Ms Boyd as her litigation representative applies for approval of an agreement to resolve the dispute between the parties to this proceeding by way of a Deed of Settlement and Release dated 20 May 2026. The parties to the Deed are Eloise Boyd by Ms Boyd as her litigation representative, Ms Boyd in her own capacity, and the Department. In support of the interlocutory application, and in compliance with r 9.71(2), Ms Boyd has filed an affidavit affirmed 3 June 2026, annexing copies of the Deed; and a written opinion of an independent lawyer that the settlement agreement (manifested by the Deed) is in Eloise Boyd’s best interests.

4    For the reasons set out below, I am satisfied that the settlement agreement manifested by the Deed should be approved.

Background and procedural history

5    Eloise Boyd was born on 11 October 2013 and is 12 years old. As noted above, she is a person under a legal incapacity, and her mother, Ms Boyd, was appointed her litigation representative. Eloise Boyd is asserted to suffer from a range of conditions or disabilities, including autism spectrum disorder, developmental delay, language impairment, and Attention Deficit and Hyperactivity Disorder. The extent and/or legitimacy of the Eloise Boyd’s conditions and disabilities is disputed by the Department.

6    The discrimination is alleged to have occurred while Eloise Boyd was a student at a public primary school which is operated by the Department, between the period 2020 and 2023 (alleged contravention period). Eloise Boyd by Ms Boyd says that during the alleged contravention period, the Department engaged in conduct which constituted discrimination and contravention of both the DDA and Disability Standards. In broad terms, the alleged contraventions arise from the Department being said to have failed to make reasonable adjustments for Eloise Boyd during the alleged contravention period, and that those failures had the effect that she was treated less favourably than a person without her disability would have treated in materially similar circumstances. Eloise Boyd by Ms Boyd says that as a consequence of the alleged unlawful conduct, she suffered loss and damage including both economic and non-economic loss. Declaratory relief and damages were sought.

7    By its defence, the Department denies that unlawful discrimination has occurred or that it contravened the Disability Standards. The Department says that reasonable adjustments were made to facilitate and support the Eloise Boyd’s learning and school attendance, or that specific requests made on her behalf were not reasonable.

8    On 27 August 2023, a complaint was lodged on behalf of Eloise Boyd to the Australian Human Rights Commission pursuant to section 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) alleging that the Department had unlawfully discriminated against her on the grounds of her disability (the Complaint). On 17 November 2023, the Complaint was terminated by the Commission, under s 46PH(1B)(b) of the AHRC Act.

9    On 15 January 2024, Eloise Boyd by Ms Boyd filed an originating application to this Court for determination of the substance of the Complaint pursuant to s 46PO of the AHRC Act.

10    On 11 September 2024, I made orders referring the matter to mediation by a registrar of the Court. On 25 March 2025, mediation was conducted by a Judicial Registrar. The parties did not resolve the matter on this occasion.

11    On 20 May 2026, the Court was informed that the parties had agreed to settle the proceeding. As noted above, the necessary interlocutory application to obtain the Court’s approval of the settlement was duly filed.

Approval of settlement principles

12    In deciding whether to approve a settlement agreement involving a person under a legal incapacity, for the purposes of r 9.71, the Court must be satisfied that the settlement agreement is in the best interests of the person or beneficial to his or her interests: Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296 at [10] (Mortimer J, as her Honour then was); Scandolera v Victoria [2015] FCA 1451; 331 ALR 525 at [26] (Mortimer J); Koenders v Victoria (Department of Education and Training) [2016] FCA 842 at [4] (Davies J); Young v Victoria (Department of Education and Training) [2018] FCA 1124 at [11] (Bromberg J).

13    It is the Court’s responsibility to determine for itself whether the settlement is beneficial to the interests of the person under a disability: Butler at [11], citing Somerset v Ley [1964] 1 WLR 640 sub nom Re Ley’s Trusts [1964] 2 All ER 326; Permanent Trustee v Mills [2007] NSWSC; 71 NSWLR 1 at [29] (Hammerschlag J); Fisher v Marin [2008] NSWSC 1357 at [29] (Rothman J). The Court may be assisted by the opinion by an independent lawyer but is not bound by that opinion and must form their own view on whether the settlement agreement is in the person’s best interests: Butler at [12]-[13]; Scandolera at [28]; Snell v Victoria (Department of Education and Training) (No 3) [2024] FCA 825 at [25] (Horan J); Fisher v Marin at [29]; and Button v CSL Ltd [2014] FCA 601 at [31] (Barker J).

14    In satisfying itself that the settlement agreement is indeed in the best interests of the person, the Court will be guided by a number of relevant considerations. In Snell at [26], Horan J conveniently set out the considerations the Court may have regard to:

The considerations relevant to whether a proposed settlement is in the interests of a person under a legal incapacity include the person’s prospects if the proceeding were to continue, and the advantages and disadvantages of the litigation continuing: see Scandolera at [29]–[32]; Young at [12]; Fisher at [35]–[36]. This encompasses matters such as the benefits conferred under the settlement, whether the applicant might secure a more advantageous outcome if ultimately successful at trial, the time that will be taken to obtain judgment at first instance and the prospect of an appeal, the risks and vicissitudes of litigation, the possible exposure to adverse costs orders, the emotional and psychological strain of continued litigation on the applicant and his family, and the finality and certainty secured in bringing an end to the litigation.

The terms of the settlement

15    The essence of the settlement is that the Department agrees not to seek any costs order in return for this proceeding being discontinued, there being no admission of liability, and the Deed constituting a full and final settlement of all claims as defined to cover, inter alia, the facts and matters set out in the complaint to the Commission and in documents filed in this proceeding. The costs incurred are very substantial.

The affidavit from Ms Deborah Boyd

16    Ms Boyd deposes to the background to and history of this proceeding. In relation to the basis for settlement, she deposes as follows:

[19]    At a case conference on 14 April 2026, the Court noted the extensive delays and that the current Statement of Claim contains significant deficiencies that need to be remedied.

[20]    Remedying these defects would cause further delay and escalating costs, which would place additional stress and pressure on our family, and incur unnecessary costs for both the Applicant and the Respondent.

[21]    These proceedings have also placed disproportional emotional and psychological strain on Eloise and our family, without offering strong prospects of achieving a financial settlement that reflects the damage that resulted from Eloise's time at [her school].

[22]    It is also likely that other more effective legal avenues exist than the current proceedings in obtaining a substantive remedy for the damage the Applicant has experienced as a result of her experiences at [her school].

[23]    Resolving this matter now on a “no costs” basis not only reduces that emotional and psychological strain on Eloise and our family, but also prevents an unnecessary duplication of proceedings and expenditure of resources for both the Applicant and the Respondent in the future.

Independent legal opinion

17    As noted above, r 9.71(2)(c) requires that any application by a litigation representative for approval of settlement agreement be supported by the opinion by an independent lawyer that the agreement is in the best interests of the person under the legal incapacity. The Court need not accept the opinion produced for the purpose of r 9.71(2)(c): Biasin v State of Victoria [2017] FCA 161 at [14] (Kenny J).

18    Ms Boyd’s affidavit annexes the written legal opinion of Ms Kay Abela dated 1 June 2026. Ms Abela is a solicitor and Principal of the firm KEA Legal. Ms Abela says she primarily undertakes work in the family law jurisdiction, and it is on this basis that she has prepared the legal opinion, applying her knowledge of the best interests of a child pursuant to s 60CC of the Family Law Act 1975 (Cth). Ms Abela discloses no matters that would preclude her from providing independent advice, and she does not otherwise appear to have been involved in the proceedings thus far. There is nothing before the Court which would lead me to question whether Ms Abela is “independent” for the purpose of r 9.71(2)(c).

19    Ms Abela does not identify any experience in disability discrimination, to the extent she might be able to provide a reasonably informed opinion on prospects. The matter before the Court is a disability discrimination matter. Disability discrimination law is highly technical notoriously difficult area of law. The principles and laws applicable to discrimination generally, and disability discrimination in particular, do not, to my knowledge, share any relevant similarity to family law, although I disavow any expertise as to the latter. Ms Abela acknowledges that the conclusion she reached in the legal opinion is done on the basis of her knowledge and experience in family law, and in particular, the best interests of children.

20    Ms Abela addresses the terms of the Deed, the appropriateness of the proposed settlement agreement, the likelihood of the proceeding having impacted, or continuing to impact, Eloise Boyd, and the damage that might occur as a result. Adverse costs orders and the expense of litigation is raised. Limited consideration appears to have been given to the prospects of the Eloise Boyd’s claim and likelihood of obtaining a more favourable result at trial. No substantive evaluation of prospects is referred to in the legal opinion, and I infer that has not taken place.

21    The legal opinion concludes that the proposed settlement is in Eloise Boyd’s best interests, applying Ms Abela’s practical knowledge and with reference on that topic in the family law context. Section 60CC of the Family Law Act contains the considerations relevant to determining the best interests of the child in family law. This is the basis for decisions concerning children in parenting and family law matters, in furtherance of the child’s best interests as the paramount consideration. It is difficult to see how these considerations might lend themselves to other legal or factual scenarios, outside those which fall within the scope of the Family Law Act and when parenting arrangements for a child are not the main issue in dispute. I do not consider the best interest considerations at s 60CC of the Family Law Act materially assist in reaching a conclusion in the present case.

22    Rule 9.71 does not prescribe a set of principles or considerations that apply to decisions made for the purpose of r 9.71(2)(c), and it does not only apply to approval of settlement where the person under a legal incapacity is a child. Legal incapacity may arise where an adult has a significant disability for example. The authorities have developed and distilled a set of relevant considerations to be had in these matters, including those extracted above at [14], and these are the appropriate considerations upon which to base a decision about Eloise Boyd’s best interests.

23    It would have been preferable that a more comprehensive legal opinion had been provided to assist the Court, and preferable still that it was provided by someone practising in discrimination law. The Court must, however, form its own view and I am satisfied, for the reasons below, that it is in the best interests of Eloise Boyd that the settlement reached be approved. Even in circumstances in which the legal opinion does not canvas the prospects of success in this application and the uncertainties of litigation, the benefits and risks raised by Ms Abela, and her observations about the appropriateness of the proposed settlement agreement, are relevant to the Court’s determination. Requiring Eloise Boyd via Ms Boyd to engage another lawyer would be unduly wasteful and expensive, especially because the cost of continued proceedings is directly relevant to Ms Boyd’s decision to resolve the dispute.

Whether the settlement is in the best interests of Eloise Boyd

24    Settlement has occurred at a stage where there is still much work to be done to prepare the matter for trial. There are serious deficiencies in the pleadings for Eloise Boyd (via Ms Boyd), which have been raised with the parties and are likely to require significant work to remedy, before the matter would be in a position to progress. The task of remedying the pleadings would prolong the matter further, in circumstances where the proceeding has already been delayed partially due to Ms Boyd’s difficulty in obtaining and retaining legal representation for her daughter. In all likelihood, the trial would have been complex, and required calling lay and expert witnesses, and be likely to entail incuring substantial costs in preparation for trial as a result.

25    Assuming Eloise Boyd was successful, it seems likely the quantum of damages could well be relatively modest, particularly when the expense of remedying the pleadings and taking the matter to trial is borne in mind. It is challenging to assess prospective damages, because the deficiencies in the pleadings deny the formation of any clarity, let alone certainty, about the strength of the case that could be pleaded and heard if they were properly amended. There is evidently a risk, probably a substantial risk, of an adverse costs order in the event the case is unsuccessful.

26    The benefit conferred under settlement differs from that usually the subject of settlement agreements sought to be approved by the Court in similar matters. The terms of settlement are not overly restrictive, in that Eloise Boyd or Ms Boyd may be able to pursue separate avenues for resolution of the dispute, which I understand to be relevant to Ms Boyd’s decision to seek to discontinue the proceeding. In the context of the risks and benefits already discussed, I am therefore satisfied the agreement is in the best interests of Eloise Boyd despite the very limited nature of the benefit conferred by the settlement via the Deed.

27    I have given psychological health and wellbeing significant weight, in particular the emotional and psychological distress that can be caused by litigation, both directly upon Eloise Boyd, and perhaps even more significantly, via her mother, Ms Boyd. Eloise Boyd is of an age where she is likely old enough, notwithstanding any impact of her disability, to experience the strain of litigation, and to be exposed to mother’s prolonged stress and strain if the matter proceeded to trial. This observation is supported by the legal opinion.

28    Eloise Boyd will benefit from the matter resolving without a trial, and her wellbeing, schooling, and development will be protected from further exacerbation of harm by continued litigation. I consider her wellbeing is helped by removing the need for any persons involved in her medical care or education to have to give evidence or otherwise participate in proceedings.

29    I accept the evidence that discontinuing the proceeding (or achieving the same end by dismissing it) will mean the family’s resources can be redirected towards Eloise Boyd in a more effective way. There are aspects of the settlement agreement which are said to be important for future advocacy for Eloise Boyd, and I accept that the Deed is appropriate in those circumstances.

30    In all the circumstances and giving weight to Ms Boyd’s evidence that she considered that the settlement is in her daughter’s best interests, I am satisfied that the settlement contained in the Deed should be approved because the settlement is beneficial to, and in the best interests of, Eloise Boyd.

Confidentiality

31    While neither party sought a confidentiality order, I find it is in the interests of the administration of justice that there be an order pursuant to r 2.32 of the Rules, preserving the confidentiality of the terms of the Deed and legal opinion. The terms of settlement are usually confidential, and the parties appear to have had special regard to how confidentiality can be preserved in the present circumstances.

32    As stated by Mortimer J (as her Honour then was) in James v WorkPower Inc [2019] FCA 1239 at [18]:

[t]he interests of the administration of justice are served by the making of limited orders to preserve the confidentiality of the terms of settlement, and of counsel’s opinion … not only for these parties, but so that future parties can also have confidence the Court may facilitate the resolution of these kinds of proceedings by including such orders in any approval of a settlement.

Conclusion

33    The settlement by way of the Deed is approved.

34    While the parties to the Deed contemplated a notice of discontinuance would be filed, with consent that there be no order as to costs, I am satisfied that the same outcome and therefore the substance of what has been agreed can be achieved by the proceeding being dismissed with no order as to costs, avoiding any further costs being incurred.

Associate:

Dated:    21 August 2026