Edmonds (by his litigation guardian Edmonds) v Director General, Department of Education WA

[2023] FedCFamC2G 958

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Edmonds (by his litigation guardian Edmonds) v Director General, Department of Education WA [2023] FedCFamC2G 958

File number:

PEG 204 of 2021

Judgment of:

JUDGE LADHAMS

Date of judgment:

26 October 2023 

Catchwords:

HUMAN RIGHTS – disability – alleged discrimination of school student – settlement of a proceeding – approval of settlement by Court.

PRACTICE AND PROCEDURE – applicant is a minor – approval of settlement by Court – requirement that application be accompanied by opinion of independent lawyer – settlement approved.    

Legislation:

Australian Human Rights Commission Act 1986 (Cth) s 46PH(1B)(b)

Disability Discrimination Act 1992 (Cth) s 4

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 1.06, 11.07

Federal Court Rules 2011 rr 9.70, 9.71

Cases cited:

Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA (No 3) [2022] FCA 1240

Shaw v Leist (No 2) [2021] FCCA 1750

Wade v State of Victoria (No 2) [2012] FCA 1080

Division:

Division 2 General Federal Law

Number of paragraphs:

17

Date of last submissions:

4 October 2023

Date of hearing:

11 September 2023

Place:

Perth

Counsel for the Applicant:

Mr G McIntyre SC

Solicitor for the Applicant:

Leading Edge Legal

Counsel for the Respondents:

Ms J Pallot

Solicitor for the Respondents:

State Solicitor’s Office

ORDERS

PEG 204 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GYTON EDMONDS BY HIS LITIGATION GUARDIAN JESSICA EDMONDS

Applicant

AND:

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION WA

First Respondent

YVONNE DENHAM

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	26 OCTOBER 2023

THE COURT ORDERS THAT:

1.Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) the applicant and the respondents have leave to compromise the action in accordance with the terms of the Deed of Settlement and Release between the applicant and the respondents, annexed to the affidavit of Jessica Edmonds filed on 25 July 2023.

2.The applicant has leave to consent to the dismissal of this application.

3.Pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) and unless and until further order, the affidavit of Robert John Lilley filed on 4 October 2023 and the annexure to that affidavit, be treated as confidential to the applicant and:

(a)must be marked as confidential on the Court’s electronic court file; and

(b)must not be made available for inspection by the respondent or the public, disclosed in open court, or disclosed on the open part of any court transcript.

4.There be no order as to costs of the application.

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

JUDGE LADHAMS:

INTRODUCTION

1. The application before the Court is an interlocutory application for the approval of a settlement of a proceeding. The proceeding was commenced by Gyton Edmonds, who is a minor, through his litigation guardian, who is his mother, and the litigation has been conducted by the litigation guardian on the applicant’s behalf.

2. The need for a minor to have a litigation guardian in a proceeding arises from r 11.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules). The Court needs to approve the settlement in this case because of the terms of rr 9.70 and 9.71 of the Federal Court Rules 2011 (FCA Rules), which apply in the present matter by reason of r 1.06 of the GFL Rules.

   SUBSTANTIVE PROCEEDING BEFORE THE COURT

3. The applicant was, at the relevant time for the purposes of this application, enrolled as a student at Port Hedland Primary School. The second respondent is the principal of that school and the first respondent is described in the statement of claim filed on 20 January 2022 as having ‘the functions, powers and duties of the Chief Executive under the Education and Children’s Services Act 2019 (WA), which include implementing policies relating to the provision of education and reviewing the special needs of particular groups of children (including those living with a disability) and promoting the involvement of parents who are responsible for children in the provision of education’.  

4. The applicant’s parents lodged a complaint against the respondents with the Australian Human Rights Commission (AHRC) in or about January 2021 alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act). The matter was conciliated by the AHRC and on 30 July 2021 the AHRC terminated the conciliation pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth).

5. The applicant, by his litigation guardian, commenced proceedings in this Court on 28 September 2021. In the statement of claim, the applicant identified that he had been diagnosed with three medical conditions and claimed that because of these diagnoses, he was at all material times known by the respondents to suffer from a disability within the meaning of that term in s 4(f) and/or 4(g) of the Disability Discrimination Act, in that he suffers from:

   (a)a disorder or malfunction that results in him learning differently from a person without the disorder or malfunction; and/or

   (b)a disorder, illness or disease that affects his thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

6. The applicant alleges that the respondents discriminated against him on the grounds of his disability by treating him less favourably than they would treat a person without the disability and by not making reasonable adjustments for him.

   APPROVAL OF DEED OF SETTLEMENT AND RELEASE

7. The parties signed a Deed of Settlement and Release on or about 19 September 2022. The applicant filed an interlocutory application on 25 July 2023 to seek approval of the settlement.

8. Rule 9.70(1) of the FCA Rules requires that a litigation representative who agrees to the compromise or settlement of any matter in dispute in a proceeding must apply to the Court for approval of the agreement.

9. Rule 9.71 provides sets out the requirements for such an application to the Court and provides:

   (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.

10. Judge Lucev provided the following summary of the legal principles relevant to the approval of a settlement agreement in Shaw v Leist (No 2) [2021] FCCA 1750 at [13]:

    (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 the Court must be satisfied the settlement is in the best interests of the legally incapable person: see Gillespie v Alperstein [1964] VR 749; Smith v Marriot Support Services [2013] FCA 312 per Tracey J at [12];

    (b)when making this determination, pursuant to the FC Rules, r 9.71(2)(c), the Court should be assisted by the opinion of an independent lawyer;

    (c)in Wade v State of Victoria (No.2) [2012] FCA 1080 (“Wade (No.2)”) and Hickey v Public Advocate (Victoria) [2012] FCA 1203 (“Hickey”), lawyers acting for the party in each case were found to be an independent lawyer for the purposes of r 9.71(2)(c) of the FC Rules provided the opinion was in furtherance of the lawyer’s duty to assist the Court: see Wade (No.2) at [8]-[9] per Bromberg J and Hickey at [10]-[11] per Gray J; and

    (d)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 & Anor [2014] FCCA 2260 at [12] per Judge Lucev and In Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974] 1 All ER 1188 at [1191] per Megarry J.

11. In assessing whether the proposed settlement is in the best interests of the applicant, the Court may consider ‘the circumstances relevant to the proceeding, including what may be secured at trial; the vicissitudes of litigation; the advantages of securing a reasonable compromise that may avoid financial burden and risk of litigation; and any pressure upon an applicant and their family: Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA (No 3) [2022] FCA 1240 (Rowe) at [9], per Jackson J.

12. When the application in a proceeding first came before me on 11 September 2023, it was supported by an affidavit of Jessica Edmonds filed on 25 July 2023. The contents of that affidavit are confidential and are not disclosed here. For present purposes, it is sufficient to note that I was not satisfied that any advice annexed to the affidavit amounted to an opinion of an independent lawyer that the settlement was in the applicant’s best interests. I invited the applicant to provide an opinion to meet the requirements of r 9.71(2)(c) of the FCA Rules.

13. The applicant filed an affidavit of Robert John Lilley on 4 October 2023. Mr Lilley is a solicitor who has acted for the applicant in the matter. His affidavit annexes an opinion prepared by Mr Greg McIntyre SC. Mr McIntyre acted for the applicant in a pro bono capacity in this proceeding. Having reviewed the opinion, I am satisfied that in providing this opinion, Mr McIntyre is ‘independent’ in the sense that he has provided the affidavit in furtherance of his duty to assist the Court and not in furtherance of his duty to the applicant: see Wade v State of Victoria (No 2) [2012] FCA 1080 at [9], per Bromberg J.

14. Mr McIntyre’s opinion is carefully considered and thorough. The views that he has reached are consistent with the authorities to which the Court would have regard if this matter were to proceed to hearing. I place considerable weight on the opinion of Mr McIntyre.

15. Having regard to the terms of the Deed of Settlement and Release and the documents before the Court, I am satisfied that it is in the applicant’s best interests for the Court to approve the settlement. In reaching this conclusion, I have had regard to matters identified in Rowe, and I have been guided by the authorities referred to above.

16. Given the confidential nature of Mr McIntyre’s opinion, it is neither necessary nor appropriate for the content of Mr Lilley’s affidavit, including the opinion of Mr McIntyre annexed to that affidavit, to be disclosed. I therefore make a confidentiality order in substantially the same terms the confidentiality order that I previously made in relation to Ms Edmonds’ affidavit.

17. Both parties have agreed that there be no order as to the costs of the application and I so order.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       26 October 2023