Barton v State of Victoria (Department of Education and Training)
[2020] FCA 687
•20 May 2020
FEDERAL COURT OF AUSTRALIA
Barton v State of Victoria (Department of Education and Training) [2020] FCA 687
File number: VID 1111 of 2019 Judge: KERR J Date of judgment: 20 May 2020 Catchwords: PRACTICE AND PROCEDURE – claim of discrimination in education contrary to the Disability Discrimination Act 1992 (Cth) – application for appointment of mother as litigation representative of infant children pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) ahead of listed mediation – whether mother has interest in the proceeding adverse to children – appointment capable of revocation – application granted Legislation: Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth) ss 6, 22
Federal Court Rules 2011 (Cth) rr 9.62 9.63, 9.64, 9.65, 9.70
Cases cited: Slaveski v Victoria [2009] VSC 596; 25 VR 160 Date of hearing: Determined on the papers Date of last submissions: 19 May 2020 (Applicants)
19 May 2020 (Respondents)Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Solicitor for the Applicants: Mr T McCredie of Mazzeo Lawyers Solicitor for the Respondents: Ms C Ible of MinterEllison ORDERS
VID 1111 of 2019 BETWEEN: KEISHA BARTON
First Applicant
OAK BARTON
Second Applicant
AVALON BARTON
Third Applicant
AND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)
First Respondent
BERNARD BOULTON
Second Respondent
NEIL THOMSON
Third Respondent
JUDGE:
KERR J
DATE OF ORDER:
20 MAY 2020
THE COURT ORDERS THAT:
1.The time for the First Applicant to file an application for her appointment as litigation representative for the Second and Third Applicants be extended nunc pro tunc to 5:00pm 18 May 2020, and the application be determined on the papers.
2.Pursuant to r 1.34 any requirements of the Federal Court Rules 2011 (Cth) as have not been complied with in respect of the appointment of the First Applicant as litigation representative of the Second and Third Applicants be dispensed with.
3.The First Applicant be appointed as litigation representative of the Second and Third Applicants, pursuant to r 9.63 of the Federal Court Rules 2011 (Cth).
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
KERR J:
On 18 October 2019, an originating application under the Australian Human Rights Commission Act 1986 (Cth) was filed in these proceedings. The application identified Keisha Barton as the First Applicant; Oak Barton (by his next friend Keisha Barton) as the Second Applicant; and Avalon Barton (by her next friend Keisha Barton) as the Third Applicant.
The State of Victoria (Department of Education and Training) was identified as the First Respondent. For the purposes of these reasons, it is not necessary to identify the further Respondents.
The Applicants’ claims as were identified in the originating application included a claim that the First Respondent had failed to provide the Second and Third Applicants with reasonable adjustments in the course of their schooling, and had discriminated against them on the basis of their disabilities. Other claims were also advanced on their behalf. The First Applicant was identified as being the mother of the Second and Third Applicants, who were each infants under the age of 18 years.
No separate claim was advanced in the originating application on the First Applicant’s part. The originating application simply asserts that the Second and Third Applicants bring their application by their next friend and mother Keisha Barton.
However whilst Ms Barton’s appointment as their litigation representative was thus asserted, Ms Barton was yet to apply - let alone be appointed by the Court - in that regard.
Accordingly, when the matter came before the Court for the first time on 31 January 2020 I ordered by consent that:
2.By 4:00pm on Friday 28 February 2020, the Applicants are to file and serve an application for the appointment of a litigation guardian with respect to the Second and Third Applicants.
I further ordered by consent that the matter proceed on the basis of concise statements, and that it be listed for mediation on a date to be fixed by the Court not before 29 May 2020.
I understand that Registrar Gitsham originally listed the matter for mediation on 2 June 2020. I also understand that the mediation was later relisted (I assume for the convenience of the parties) for 25 May 2020. That date is of significance because the mediation cannot conveniently proceed if a litigation representative for Oak and Avalon Barton is yet to be appointed.
No party takes any issue with the relisting of the mediation, notwithstanding that it is now to take place at an earlier point of time than that provided for in the orders of the Court.
On 27 February 2020, the First Applicant filed an affidavit in which she affirmed:
1. I am the First Applicant in this proceeding.
2.I am the mother of Oak Barton and Avalon Barton, the Second and Third Applicants.
3.I consent to being appointed the litigation guardian of Oak Barton and Avalon Barton. In this regard I have previously signed my consent to act as Oak Barton and Avalon Barton's litigation guardian.
Now produced and shown to me marked "KB-1 '' are true copies of my signed consent to act as litigation guardian dated 18 February 2020.
4.I confirm that l have no interest in this proceeding adverse to either Oak Barton or Avalon Barton.
5.I acknowledge that the contents of this Affidavit are true and correct and I make it knowing that a person making a false Affidavit may be prosecuted for the offence of perjury.
The terms of the two certificates marked KB-1 as were exhibits to that affidavit were as follows:
I, Keisha Barton of [address], consent to be the litigation guardian of Oak Barton in relation to the proceeding brought against the Respondent. I declare I have no interest in the proceeding adverse to Oak Barton.
I, Keisha Barton of [address], consent to be the litigation guardian of Avalon Barton in relation to the proceeding brought against the Respondent. I declare I have no interest in the proceeding adverse to Avalon Barton.
However, no application for Ms Barton’s appointment in those respects was then pursued.
On 27 March 2020, the Applicants filed and served their Concise Statement.
With one exception, the matters that are raised in the Applicants’ Concise Statement all relate to claims advanced exclusively on either Oak or Avalon’s behalf. However, at paragraphs [29] to [31] it is alleged that the First Respondent imposed a requirement or condition upon the parents of children attending the relevant school that the parents develop “Individual Education Plans” through a “Student Support Group Meeting”. In that regard, it is contended that Ms Barton herself has a disability such that she was unable to sufficiently process information in a meeting setting. It is alleged that that requirement thereby disadvantaged people with her disabilities, because they could not process information quickly enough to negotiate educational planning in that environment.
On 8 May 2020, the Respondents filed their Concise Statement in response. In respect of paragraphs [29] to [31] of the Applicants’ Concise Statement, the Respondents deny what the Applicants allege in those paragraphs. I note however that the Respondents take no issue with the circumstance that this claim was not identified in the Applicants’ Originating Application.
From that point, behind-the-scenes correspondence was exchanged between the legal representatives of the parties. That correspondence concerned whether, in circumstances where the First Applicant now was advancing her own claims, orders by consent might be proposed to regularise her appointment as litigation representative of the Second and Third Applicants prior to the mediation scheduled for 25 May 2020. In that regard, I refer to the affidavit of Mr Thomas McCredie filed on 19 May 2020. That affidavit exhibits a significant volume of such correspondence.
On 18 May 2020, those negotiations not having led to agreement the Applicants sought to file an urgent interlocutory application seeking the following orders:
1.Keisha Barton is appointed litigation representative, in this proceeding, of Oak Barton (Second Applicant) and Avalon Barton (Third Applicant), pursuant to rule 9.63 of the Federal Court Rules 2011.
2.The Respondents pay the Applicants’ costs of this application.
3.Such further or other orders as the Court considers appropriate.
Given the asserted urgency my associate contacted the parties at my request (the Court being then unaware of the status of the discussions as had taken place between them) to draw their attention to certain procedural issues and noting that consent orders might be sought.
In response to that communication, on 19 May 2020 the First Respondent’s legal representatives advised the Court as follows:
The Respondents' position with respect to the appointment of Mrs Keisha Barton as the Second and Third Applicants' litigation representative, is as follows:
(a)at the directions hearing before His Honour Justice Kerr on 31 January 2020, His Honour raised the question as to the appointment of a litigation representative for the Second and Third Applicants, Oak and Avalon Barton;
(b)the Respondents have been presented with proposed consent orders that seek to appoint Mrs Barton as Oak and Avalon's litigation representative;
(c)by reference to the material referred to at (b) above, and in circumstances where Mrs Barton is an Applicant in her own right with her own, separate, interest in the proceeding, the First Respondent does not consent to her appointment in the absence of affidavit material:
(i)setting out Mrs Barton’s understanding of her role as litigation guardian;
(ii)explaining what her understanding of a conflict of interest in the context of this proceeding is and how she would propose to deal with it if one arose; and
(iii)confirming she believes she is able to make decisions in the litigation in Oak and Avalon’s best interests, even if the decision will not necessarily assist or further her own interest in the proceeding.
In the absence of this material, the First Respondent is not satisfied that it is appropriate to appoint Mrs Barton as Oak and Avalon's litigation representative and does not consent to the appointment;
(d)the First Respondent is open to considering the question of consent on receipt of further affidavit material addressing the points identified above. Further, the First Respondent is open to consenting to the appointment of a different person who does not have a separate interest in the proceeding.
The First Respondent has previously made its position in relation to the above known to the Applicants, including in correspondence dated 29 April and 5 May 2020.
The First Respondent does not seek to be heard in relation to the matter of the appointment of Mrs Barton as litigation representative, beyond having the content of this letter considered by the Court, and would be content for the application to be determined on the papers. If the Court determines that the affidavit material filed by the Applicants is sufficient, the Respondents are content to proceed on that basis.
We note paragraph 2 of the orders sought by the Applicants in the interlocutory application filed 18 May 2020. The Respondents object to paying costs of the application. The application is a necessary step in proceedings brought on behalf of a minor and while the First Respondent does not consent on the basis of the material that has been provided, that position does not add to the cost of the application, nor is it unreasonable in all the circumstances of the case.
There is no identifiable basis on which the Respondents should be made to pay the Applicants costs. The Respondents submit that costs should be reserved.
Given the circumstance that the opposing party does not object to this course, I consider it to be in the interests of justice that the Court give leave for the interlocutory application seeking orders appointing Ms Keisha Barton as litigation representative for the Second and Third Applicants to be filed without the allocation of a listing date and for that application to be determined on the papers.
I have before me in that regard Ms Barton’s affidavit filed 27 February 2020, deposing that she has no interest in the proceeding adverse to that of either of Oak or Avalon Barton. The First Respondent does not in terms gainsay that proposition. Rather, it identifies Ms Barton’s own interest in the proceeding as a relevant consideration. Against that circumstance it declines to consent to her appointment in the absence of an affidavit:
(i) setting out Mrs Barton’s understanding of her role as litigation guardian;
(ii)explaining what her understanding of a conflict of interest in the context of this proceeding is and how she would propose to deal with it if one arose; and
(iii)confirming she believes she is able to make decisions in the litigation in Oak and Avalon’s best interests, even if the decision will not necessarily assist or further her own interest in the proceeding.
At least as presently advised, I apprehend that the possibility of Ms Barton having an interest adverse to that of either of her children in these proceedings is more hypothetical than real. The relevant paragraphs of the Applicants’ Concise Statement refer to s 6 of the Disability Discrimination Act 1992 (Cth) (the DDA), as is relevant to the disadvantage suffered by Ms Barton by reason of the asserted indirect discrimination. They also refer to s 22 of the DDA, as is relevant to the pleaded impact of that discrimination against Ms Barton on the children. While no submissions have yet been made I understand that what is contended is that by excluding the mother, in consequence of her disabilities, from involvement in planning her children’s education the school also impeded the development of an appropriate curriculum for them.
I do not exclude the possibility that as the matter proceeds, an actual circumstance of conflicting interest might be shown. However, on the facts as I understand them to be presently before me I reject the proposition that Ms Barton is a person who “has a different interest in the proceeding” to either of her children within the meaning of r 9.62(1)(b) of the Federal Court Rules 2011 (Cth) (the Rules).
In my view, the words “a different interest” are to be understood as meaning an inconsistent interest: rather than a consistent interest also articulated on his or her own account. Such a reading is reflected in the language of rr 9.63 and 9.64 of the Rules, which refer to affidavits and certificates being provided attesting to the proposed litigation representative having no interest in the proceeding that is adverse to the interest of the person under a legal incapacity. That reading does not require that person to have no interest in the proceeding, so long as their interest is consistent with the interests of the person under a legal disability. I am accordingly satisfied that Ms Barton is not excluded at the threshold from consenting to being appointed as litigation representative for the infant Second and Third Applicants.
I have not been made aware of the reason why Ms Barton’s application was not filed and served before 4:00pm on 28 February 2020, as I had made provision for in my orders of 31 January 2020. However, the First Respondent takes no point in that regard. I will order that the time for that application to be made be extended nunc pro tunc to 5:00pm 18 May 2020.
I am reinforced in my conclusion that I am entitled to make the order sought appointing Ms Barton as litigation representative of the Second and Third Applicants by the circumstance that what is in the immediate offing is no more and no less than the scheduled mediation of this proceeding. I see no reason why Ms Barton might have any interest adverse to the interests she would press on behalf of the Second and Third Applicants in that mediation. The First Respondent has not articulated any such reason.
If that mediation proves successful then pursuant to r 9.70 of the Rules, any compromise or settlement (including a settlement in Ms Barton’s individual favour, having regard to the breadth of the rule) will in any event require the approval of the Court.
I also note that if I appoint Ms Barton as litigation representative for her children then her lawyer must file a certificate in terms of r 9.64 of the Rules before she can take any step in these proceedings.
Further, I note that if I appoint Ms Barton as such then that appointment is not irrevocable. Rule 9.65 provides that the Court may remove a litigation representative. I respectfully adopt what was said in Slaveski v Victoria [2009] VSC 596; 25 VR 160 by Kyrou J at [51], as it is also applicable to the power of this Court in that regard:
51.… The Court has inherent jurisdiction to remove a litigation guardian where that course is required by the interests of justice, including where the litigation guardian’s conduct prevents the Court from ensuring a fair trial for all parties. If Mrs Slaveska’s conduct as litigation guardian is such as to prejudice Mr Slaveski’s interests or to prevent this Court from ensuring a fair trial for all parties, then the Court could consider her removal of its own motion or on the application of Mr Slaveski or the defendants.
At least for the present, I consider it to be in the interests of justice that I appoint Ms Barton as her children’s litigation representative. I will order that so much of the Rules as would prevent the Court making that appointment be dispensed with, and that she be so appointed.
It will remain always open to the Respondents to apply for cause shown for Ms Barton’s removal in that capacity.
As is implicit in my reasons, I do not regard Ms Barton’s participation in the pending mediation scheduled for 25 May 2020 (whether on her own account or as litigation representative for her children Oak and Avalon) as her taking a “step in the proceeding’” as would be prohibited under r 9.64 pending her lawyer filing the outstanding certificate required.
I am satisfied that the First Respondent is correct that there is no proper basis upon which they or the Second and Third Respondents should be required to pay the Applicants’ costs of Ms Barton’s application. I am equally satisfied that the order having been made, there is no basis for Ms Barton to meet the any of the Respondents’ costs. I reject that costs should be reserved. I am satisfied that there should be no order as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate:
Dated: 20 May 2020
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