A on behalf of B v State of NSW (Department of Education and Training) (No 2)

[2013] FCA 551

FEDERAL COURT OF AUSTRALIA

A on behalf of B v State of NSW (Department of Education and Training) (No 2) [2013] FCA 551

Citation:		A on behalf of B v State of NSW (Department of Education and Training) (No 2) [2013] FCA 551
Parties:		A ON BEHALF OF B v STATE OF NSW (DEPARTMENT OF EDUCATION AND COMMUNITIES)
File numbers:		NSD 947 of 2011 ; NSD 689 of 2012
Judge:		GRIFFITHS J
Date of judgment:		30 May 2013
Catchwords:		PRACTICE AND PROCEDURE - application by litigation representative for approval of settlement – consideration of relevant requirements
Legislation:		Disability Discrimination Act 1992 (Cth) ss 5, 6, 11, 15, 22, 23 29A and 32 Federal Court Rules 2011 rr 9.70, 9.71
Cases cited:		Bannister v State of Victoria [2012] FCA 1341 Smith v Marriott Support Services [2013] FCA 312 Hickey v Public Advocate (Victoria) [2012] FCA 1203 Wade v State of Victoria (No 2) [2012] FCA 1080
Date of hearing:	30 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	Mr P French
Solicitor for the Applicant:	NSW Disability Discrimination Legal Centre
Counsel for the Respondent:	Ms K Nomchong SC
Solicitor for the Respondent:	Hicksons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 947 of 2011; NSD 689 of 2012

BETWEEN:	A ON BEHALF OF B Applicant
AND:	STATE OF NSW (DEPARTMENT OF EDUCATION AND COMMUNITIES) Respondent
JUDGE:	GRIFFITHS J
DATE OF ORDER:	30 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The settlement between the parties recorded in the Deed dated 27 February 2013 (Exhibit JS1 to the Affidavit of A dated 27 March 2013 (the affidavit of A) is approved.

2.Pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), in order to protect the due administration of justice that the following documents are to be treated on a confidential basis by being placed in a sealed envelope and marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”:

·Form 167 attaching the Notice of Termination and Complaint in the Australian Human Rights Commission in matter number NSD 947/2011, filed 17 June 2011;

·Statement of claim in matter number NSD 947 of 2011, filed 17 June 2011;

·Originating application pursuant to the Australian Human Rights Commission Act in matter number NSD 689 of 2012, filed 17 May 2012;

·Amended and consolidated statement of claim in matters numbers NSD 947 of 2011 and NSD 689 of 2012;

·Defence in matter numbers NSD 947 of 2011 and NSD 689 of 2012 filed 30 October 2012; and

·The affidavit of A including the Deed annexed thereto.

3.The proceedings be dismissed with no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 947 of 2011; NSD 689 of 2012

BETWEEN:	A ON BEHALF OF B Applicant
AND:	STATE OF NSW (DEPARTMENT OF EDUCATION AND COMMUNITIES) Respondent

JUDGE:	GRIFFITHS J
DATE:	30 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings are brought under Rule 9.70 of the Federal Court Rules 2011 (the 2011 FCRs) seeking approval of a settlement which has been reached by the parties in a mediation conducted by the Court Registry on 27 February 2013.

2. On 9 April 2013, I made certain orders, including a suppression order (see A on behalf of B v State of NSW (Department of Education and Training) [2013] FCA 331).

3. In accordance with r 9.70(1), if a litigation representative agrees to compromise or settle any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement. If the Court approves the agreement, the agreement is binding on the person by or for whom it was made as if that person was not under a legal incapacity. The Court is empowered by r 9.70(3) of the 2011 FCRs to require, as a condition of approval, that any money payable for the benefit of a person under a legal capacity be dealt with by way of a settlement, or in any other way that the Court considers appropriate.

4. Under r 9.71, an application by a litigation representative for approval of an agreement must be made by filing an interlocutory application, which has to 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; and

   (c)an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity;

5. In considering whether to approve a settlement agreement, the question is not whether the amount of damages would have been awarded if the matter went to trial, but rather is whether the settlement itself is a reasonable one, and is for the benefit of the person under the relevant legal incapacity, having regard to all the circumstances of the case.  Although the Court must consider for itself whether the compromise is in the best interests of the person under the relevant legal incapacity, significant weight will be given to the views of the applicant’s legal advisers (see Smith v Marriott Support Services [2013] FCA 312 at [12] per Tracey J).

6. For the reasons which follow, I have determined that the Court should give its approval to the settlement reached. 

   Background

7. B is an Aboriginal minor aged 11 years.  A is B’s mother.  She acts as B’s legal representative having regard to B’s age.  B lives with a significant disability, being a mild intellectual impairment and a post-traumatic stress disorder.  B’s childhood has unfortunately been marked by some serious episodes and events, the details of which need not be provided, which have evidently had an enduring impact upon B.  For example, B has witnessed and experienced serious domestic and other personal violence, which has caused B to develop an emotional disorder which has been diagnosed as a post-traumatic stress disorder.  The pleadings suggest that B has engaged in serious misbehaviour and misconduct over many years. 

8. The applicant claims unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (DD Act).  In particular, the applicant claims a breach of:

   ·ss 5, 6, 11, 15, 22 and 23 up to 5 August 2009;

   ·ss 5, 6, 11, 22, 29A and 32 from 5 August 2009 to 5 October 2010; and

   ·Parts 3, 4, 5, 6 and 7 of the Disability Standards for Education 2005 (the DSE). 

9. In addition to seeking declaratory relief, and an apology, the applicant sought damages in the amount of $50,000 for loss of education and $50,000 for hurt, stress and humiliation, as well as compensation for the costs of past and future counselling, and costs of the proceeding. 

10. In broad terms, the applicant alleges in a consolidated and amended statement of claim that:

    ·the respondent contravened DSE 5.2 and 5.3 by failing or, alternatively, failing to take reasonable steps, to ensure that B was able to participate in primary school courses and programs, and use facilities and services on an equal basis with other children.  In particular, it is alleged that the respondent failed to make adequate alternative adjustments necessary to ensure that B was able to participate in education on an equal basis with others;

    ·the respondent contravened DSE 7.2 and 7.3 by failing or, alternatively, failing to take reasonable steps, to ensure that B was provided with the specialised support services B required to participate in education on an equal basis with others, taking into account his disability;

    ·the respondent’s conduct constituted unlawful direct discrimination against B on the basis of his disability contrary to ss 5, 22(2) and 24 of the DD Act; and/or

    ·the respondent’s conduct constituted unlawful indirect discrimination against B on the basis of B’s disability contrary to ss 6, 22(2) and 24 of the DD Act.

11. The respondent defended the claims.  In its defence, it raises numerous serious allegations regarding B’s behaviour, including disobedience to teachers’ directions, harassing and assaulting other students, harassing and assaulting teachers and staff, using gross and offensive language and engaging in behaviour in the school environment which is said to be inappropriate, uncooperative, sexualised and violent.  The respondent denied the allegations of unlawful discrimination and said that it had provided educational services to B to the best of its ability, given the circumstances of the matter. 

12. The parties engaged in a Court-ordered mediation on 27 February 2013 and, agreed, without any admission as to liability, to settle their dispute on the terms and conditions set out in a Deed dated that day. 

13. The Deed contains a confidentiality clause. 

14. A has provided evidence which indicates that she is content to settle the proceedings on behalf of B on the terms set out in the Deed, taking into account the following matters:

    (a)the settlement sum, which she considers to be a reasonable compromise;

    (b)the respondent’s agreement to pay B’s legal costs, which means that the quantum of the settlement sum will not be eroded by legal costs;

    (c)both A and B are in a continuing relationship with the respondent and it is important for the parties to move forward in a more positive and collaborative way which focuses on B’s education development;

    (d)the likely delay in the matter being brought to a final hearing, bearing in mind that it is estimated that it may require up to 15 hearing days; and

    (e)the uncertainties, stress and costs associated with litigation generally.

15. An affidavit was also sworn on behalf of the applicant by Mr Phillip French, the applicant’s solicitor in the proceedings. I am satisfied that his evidence is in compliance with r 9.71(2)(c) of the 2011 FCRs. In his capacity as an officer of the Court, Mr French states that he is of the view that the proposed settlement is in B’s best interests.

16. In coming to that view, Mr French says that he has taken into account the following matters:

    (a)the contents of the consolidated amended statement of claim;

    (b)the contents of the defence;

    (c)the continuing relationship between A and B and the respondent, including in relation to B’s future educational needs;

    (d)the likelihood that these proceedings will not be concluded for some time should they proceed to hearing;

    (e)the uncertainties, stress and costs associated with litigation; and

    (f)the relief that may be awarded to B in proceedings of this kind as compared with what has been agreed by the parties by way of proposed compromise.  In particular, Mr French deposes that he has specially considered the comparative case law in relation to disability discrimination claims in the area of education. 

17. In his affidavit, Mr French deliberately did not discuss the strengths or weaknesses of B’s claim, against the possibility that if the settlement was not approved, the matter would go to a hearing and it would prejudice B’s case if those matters were canvassed by him.  I agree with that assessment. 

18. I accept Mr French’s opinion that the proposed settlement is in B’s best interests, having regard to the matters which have informed that opinion.  Although he is the applicant’s solicitor, I shall follow the approach which has been taken in other cases to such evidence (such as Wade v State of Victoria (No 2) [2012] FCA 1080, Hickey v Public Advocate (Victoria) [2012] FCA 1203 and Bannister v State of Victoria [2012] FCA 1341). In my view, the opinion of the applicant’s solicitor is an opinion of an “independent lawyer” within the meaning of r 9.71(2)(c) in the sense that the legal representative is acting in this respect in discharge of his or her duty to assist the Court. Alternatively, the Court is able to dispense with the requirement imposed by the relevant rule and allow the legal representative’s opinion to be relied upon. I will be prepared to take that course if necessary.

19. After giving careful consideration to the affidavits of both A and Mr French, as well as reviewing the contents of the Deed, I am satisfied that the settlement should be approved on the basis that it is in B’s best interests.  I note that the parties have agreed to the issue of costs in the Deed and, accordingly, the Court need not make any order as to costs. 

20. I am also satisfied that the due administration of justice would be prejudiced if the affidavit of A, the contents of the Deed, or the pleadings and relevant papers on the Court’s file were published. Accordingly, I will make an order for non-publication under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) in respect of those documents.

21. For these reasons, I make the following orders:

    1.The settlement between the parties recorded in the Deed dated 27 February 2013 (Exhibit JS1 to the Affidavit of A dated 27 March 2013 (the affidavit of A) is approved.

    2.Pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), in order to protect the due administration of justice that the following documents are to be treated on a confidential basis by being placed in a sealed envelope and marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”:

    ·Form 167 attaching the Notice of Termination and Complaint in the Australian Human Rights Commission in matter number NSD 947/2011, filed 17 June 2011;

    ·Statement of claim in matter number NSD 947 of 2011, filed 17 June 2011;

    ·Originating application pursuant to the Australian Human Rights Commission Act in matter number NSD 689 of 2012, filed 17 May 2012

    ·Amended and consolidated statement of claim in matters numbers NSD 947 of 2011 and NSD 689 of 2012;

    ·Defence in matter numbers NSD 947 of 2011 and NSD 689 of 2012 filed 30 October 2012; and

    ·the affidavit of A including the Deed annexed thereto.

    3.The proceeding be dismissed with no order as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       6 June 2013