Andrews v Marriott Support Services - [2013] FCA 310

FEDERAL COURT OF AUSTRALIA
Andrews v Marriott Support Services [2013] FCA 310

Citation: Andrews v Marriott Support Services [2013] FCA 310

Parties: PETER ANDREWS v MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)

File number: VID 283 of 2011

Judge: TRACEY J

Date of judgment: 10 April 2013

Catchwords: PRACTICE AND PROCEDURE – Application by litigation representative for approval of settlement – applicant intellectually disabled – consideration of relevant requirements – settlement approved.

Legislation: Fair Work Act 2009 (Cth) – ss 369, 371
Federal Court Rules 2011 (Cth) – rr 9.70, 9.71

Cases cited: Gillespie v Alperstein [1964] VR 749 – cited
Hickey v Public Advocate (Victoria) [2012] FCA 1203 – cited
Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 – considered, applied
Wade v State of Victoria(No 2) [2012] FCA 1080 – cited

Date of hearing: Determined on the papers

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Solicitor for the Applicant: AED Legal Centre

Solicitor for the Respondent: Middletons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 283 of 2011

BETWEEN:
PETER ANDREWS
Applicant

AND:
MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

10 APRIL 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. Pursuant to Rule 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in the deed of release exhibited as KW-1 to the affidavit of Ms Kairstien Wilson sworn on 3 April 2013 be approved.
2.The affidavit of Kairstien Wilson sworn on 3 April 2013 and the exhibits thereto be treated as confidential and be placed in a sealed envelope 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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 283 of 2011

BETWEEN:
PETER ANDREWS
Applicant

AND:
MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)
Respondent

JUDGE:

TRACEY J

DATE:

10 APRIL 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Mr Peter Andrews suffers from an intellectual disability. He is aged 55 years.
From March 2008 Mr Andrews was employed by the respondent pursuant to a contract of employment. He performed his duties in a sheltered environment as a supported employee.
In July 2010 the respondent advised Mr Andrews that, as from 6 September 2010, his work hours would be reduced to two and a half days per week and that, from 30 June 2011, his paid employment would be terminated.
Mr Andrews commenced a proceeding in Fair Work Australia. He alleged that the respondent had dismissed him from employment in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (“the Act”). The respondent sought to justify its actions on the ground of economic necessity. Attempts by Fair Work Australia to resolve the dispute were unsuccessful. On 29 March 2011 Commissioner Blair issued a certificate pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCA 310
Decision Date

CaseChat Overview and Summary

In Andrews v Marriott Support Services, the applicant, Peter Andrews, who has an intellectual disability, brought a proceeding against Marriott Support Services, his former employer, in the Federal Court of Australia. The case revolved around Mr Andrews' termination of employment and the subsequent settlement agreement. The legal issues at hand were whether the settlement was in Mr Andrews' best interest and whether the Court should approve the settlement under Rule 9.70 of the Federal Court Rules 2011.

Justice Tracey considered the requirements for approving a settlement in cases involving intellectually disabled individuals, emphasizing the importance of the disabled person's benefit. The Court placed significant weight on the opinions of Mr Andrews' legal advisers, including his solicitor and independent counsel, who recommended settling the case due to the scope and complexity of the legal and factual disputes. The Court also took into account the advice of the applicant's litigation guardian, Mrs Joan Andrews.

After reviewing the settlement agreement and the opinions of Mr Andrews' legal advisers, Justice Tracey concluded that the compromise of the proceeding on the proposed terms was in Mr Andrews' best interests. The Court approved the settlement, acknowledging that although Mr Andrews' intellectual disability limited his understanding of the terms, he had a basic understanding of at least some of them and was looking forward to moving on with his life.

The Court granted the application for approval of the settlement, and the settlement agreement was approved. The affidavit of Kairstien Wilson and its exhibits were treated as confidential and placed in a sealed envelope marked "NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THIS COURT."

Orders