Attard v Marriott Support Services - [2013] FCA 311

FEDERAL COURT OF AUSTRALIA
Attard v Marriott Support Services [2013] FCA 311

Citation: Attard v Marriott Support Services [2013] FCA 311

Parties: ANDREW ATTARD v MARRIOTT SUPPORT SERVICES (A.C.N. 094 426 061)

File number: VID 282 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 Group

Solicitor for the Respondent: Middletons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 282 of 2011

BETWEEN:
ANDREW ATTARD
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 282 of 2011

BETWEEN:
ANDREW ATTARD
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 Andrew Attard suffers from autism, type 2 diabetes, echolalia and a mild intellectual disability. He is 39 years old.
From March 2000 Mr Attard 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 Attard 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 Attard 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 his actions on the ground of economic necessity. Attempts by Fair Work Australia to resolve the dispute were unsuccessful. On 29 March 2011 Commissioner…

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.

Continue reading Attard v Marriott Support Services

Details

AGLC: Attard v Marriott Support Services [2013] FCA 311
Case: [2013] FCA 311
Decision Date

CaseChat Overview and Summary

In the case of Attard v Marriott Support Services, the Federal Court of Australia was asked to approve a settlement between Andrew Attard and Marriott Support Services. Andrew Attard, who has autism, type 2 diabetes, echolalia, and a mild intellectual disability, had been employed by Marriott Support Services in a sheltered environment since 2000. In 2010, Marriott Support Services informed Attard that his work hours would be reduced and that his employment would be terminated in 2011. Attard subsequently filed a complaint with Fair Work Australia, which led to a certificate being issued under the Fair Work Act 2009, allowing Attard to commence a proceeding in the Federal Court. The matter was referred for mediation, but the parties were unable to reach an agreement. Following unsuccessful mediation, Attard's mother, Mrs Robyn Attard, was appointed as his litigation representative.

The legal issues in this case involved the approval of the settlement between the parties, considering Attard's intellectual disability and the requirements of the Federal Court Rules 2011. The Court had to determine whether the settlement was in Attard's best interests, taking into account the opinions of his legal advisers and the views of his litigation representative.

The Court found that the settlement was in Attard's best interests, primarily based on the opinions of his legal advisers and the advice provided by an independent lawyer. The Court noted that the settlement would avoid the need for a contested hearing, which would have involved complex legal and factual disputes. Furthermore, the Court found that Attard had a basic understanding of the settlement terms and wished to move on with his life. The Court approved the settlement and ordered that the affidavit of Kairstien Wilson and the exhibits be treated as confidential and sealed.

In summary, the Federal Court of Australia approved the settlement between Andrew Attard and Marriott Support Services, taking into account Attard's intellectual disability and the opinions of his legal advisers. The Court found that the settlement was in Attard's best interests, and it ordered the approval of the settlement and the sealing of the affidavit and exhibits.

Orders