Burmester v Scouts Association of Australia, Western Australia Branch
[2023] FedCFamC2G 600
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burmester v Scouts Association of Australia, Western Australia Branch [2023] FedCFamC2G 600
File number: PEG 72 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 7 July 2023 Catchwords: INDUSTRIAL LAW – Fair work – termination of employment – underpayment – exercising of workplace right – false or misleading representation about the workplace – discrimination on basis of sex – matter settled at mediation – where applicant under a disability – approval of settlement by the Court
PRACTICE AND PROCEDURE – Approval of settlement by Court – best interests of the applicant – settlement approved
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 351
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.06
Federal Court Rules 2011 (Cth) rr 9.70, 9.71
Cases cited: Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296
Gillespie v Alperstein [1964] VR 749
Harrington v Catholic Education Office of Western Australia & Anor [2014] FCCA 2260
Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour and others [1974] 1 All ER 1188
Reid & Anor v Marilandy Pty Ltd [2017] FCCA 2403; (2017) 325 FLR 235
Smith v Marriot Support Services [2013] FCA 312
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submission: 7 July 2023 Date of hearing: 7 July 2023 Place: Perth Applicant: By her litigation guardian, Ms N Whiteside Counsel for the Respondents: Mr J Walker Solicitor for the Respondents: Gilchrist Connell ORDERS
PEG 72 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CAROLYN BURMESTER BY HER LITIGATION GUARDIAN, NATALIE WHITESIDE
Applicant
AND: THE SCOUTS ASSOCIATION OF AUSTRALIA, WESTERN AUSTRALIA BRANCH
First Respondent
SHERRY DONALDSON
Second Respondent
DAVID TURNER (and others named in the Schedule)
Third Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the deed of settlement and release between the parties dated 16 May 2023 and recorded in annexure CB3 of the affidavit of Natalie Whiteside affirmed on 22 June 2023 is approved.
2.No order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and edited)JUDGE LUCEV
Before the Court is an Application in a Proceeding (“Approval Application”) for the approval of a settlement agreement (“Settlement Deed”). The applicant is Ms Carolyn Burmester and is represented in the proceedings before this Court by a litigation guardian, Mrs Natalie Whiteside.
The Settlement Deed will not be binding unless the Court grants the Approval Application pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) (“FC Rules”), which are applicable by reason of r 1.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), the GFL Rules being insufficient for present purposes in that they do not provide an approval mechanism for settlement in cases such as this.
The Settlement Deed includes a confidentiality clause preventing the disclosure of the terms of settlement. For this reason, the Court's published reasoning in this matter will, to some extent, be restricted.
The Originating Application together with a Form 2 Claim under the Fair Work Act 2009 (Cth) (“FW Act”) alleging dismissal in contravention of a general protection was filed on 15 October 2020. It is sufficient to observe that the claim relates to and relies upon ss 340, 341, 342 and 351 of the FW Act.
On 23 January 2023 the Court made consent orders referring the matter to mediation and on 1 May 2023 the parties attended mediation before a Registrar of this Court where the matter was settled in principle with the parties to enter into a deed of settlement and release on terms as agreed at the mediation.
On 27 June 2023 Ms Whiteside filed the Approval Application and this was accompanied by an affidavit of Ms Whiteside (“Whiteside Affidavit”), annexing the Settlement Deed together with an opinion from an independent lawyer, Mr Chris Booth (“Mr Booth”).
Orders are sought for approval of the formal agreement made between the parties (and reflected in the Settlement Deed) in settlement of all matters in dispute.
Rules 9.70 and 9.71 of the FC Rules concern an application by a litigation representative for approval of an agreement where proceedings have already commenced in the Court.
Rule 9.71 of the FC Rules allows a litigation representative to apply to the Court for approval of an agreement. Rule 9.71 of the FC Rules requires that:
(1) An application by a litigation representative for approval of an agreement must be made by filing an interlocutory application.
(2) The interlocutory application must 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;
(c)an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.
The relevant legal principles were summarised as follows in Reid & Anor v Marilandy Pty Ltd [2017] FCCA 2403; (2017) 325 FLR 235 at [12]-[15] per Judge Lucev as follows:
(a)in Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296 (“Butler”), when determining whether or not to approve a settlement agreement, Mortimer J at [10] stated that the Court must be satisfied the settlement is in the best interests of the legally incapable person: citing Gillespie v Alperstein [1964] VR 749; Smith v Marriot Support Services [2013] FCA 312 at [12] per Tracey J;
(b)when making this determination, pursuant to r 9.71(2)(c) of the FC Rules the Court should be assisted by the opinion of an independent lawyer;
(c)in respect of the person under a disability, the Court should rely to a considerable extent on the views of those who may have access to more material and have been afforded greater opportunity to weigh the matter than the Court: Harrington v Catholic Education Office of Western Australia & Anor [2014] FCCA 2260 at [12] per Judge Lucev and Re Barbour’s Settlement; National Westminster Bank Ltd v Barbour and others [1974] 1 All ER 1188 at 1191 per Megarry J.
It is the opinion of Mr Booth that the terms of the Settlement Deed are reasonable and in Ms Burmester’s interests. The Court is satisfied that Mr Booth is an independent lawyer. Noting the relevant factors identified by Mortimer J in Butler at [15] and [17], the independent legal opinion has accounted for and weighed all relevant considerations in concluding the Settlement Deed is in the best interests of Ms Burmester. The Court therefore sees no reason not to accept Mr Booth’s opinion in this case.
With respect to the confidentiality requested by the parties, it is neither necessary nor appropriate for the contents of the Whiteside Affidavit or Mr Booth’s opinion, to be exposed.
In Butler at [16] per Mortimer J opined that the jurisdiction of the Court to approve a settlement for a person under a disability is inherently protective:
16.I take that to mean protective not only of the financial interests of the person under a disability, but also protective of her interests in being as well and as healthy as she can, of living as comfortably as she can, with a good quality of life.
Having read the Whiteside Affidavit (which meets the requirements of r 9.71(2)(a) of the FC Rules), Mr Booth’s opinion and the Settlement Deed, and noting the consent of Ms Whiteside, the litigation guardian, and without any objections having been raised by the respondents, the Court is satisfied that the terms of the Settlement Deed are in Ms Burmester’s best interests, and further that the quantum of the agreed settlement amount is appropriate to Ms Burmester’s circumstances and sufficient to satisfy the protective function referred to in Butler.
The Court approves the Settlement Deed annexed to the Whiteside Affidavit.
Pursuant to r 9.70(2) of the FC Rules this approval by the Court will be from the date of execution of the Settlement Deed by the party last executing, and will thereunto be binding upon the parties.
In the circumstances there will be orders that:
(a)pursuant to r 9.70 of the FC Rules, the Settlement Deed between the parties dated 16 May 2023 and recorded in annexure CB3 of the affidavit of Natalie Whiteside affirmed on 22 June 2023 is approved; and
(b)no order as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 7 July 2023
SCHEDULE OF PARTIES
PEG 72 of 2021 Respondents
Fourth Respondent:
MARIA SUCUR
Fifth Respondent:
MATTHEW NUSSEY
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