Harrington v Catholic Education Office & Anor
[2014] FCCA 2260
•1 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRINGTON v CATHOLIC EDUCATION OFFICE OF WESTERN AUSTRALIA & ANOR | [2014] FCCA 2260 |
| Catchwords: PRACTICE AND PROCEDURE – Applicant under disability – minor with a brain injury – settlement –– approval of settlement by Court – requirement that application be accompanied by opinion of independent lawyer – whether opinion of lawyer acting for applicant complies – meaning of independent lawyer – settlement approved. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth) s.46PH(1)(i) Federal Circuit Court Rules 2001 (Cth) rr.1.05(2), 11.08 Federal Court Rules 2011 (Cth) rr.9.70, 9.71(2) |
| Clarke v Catholic Education Office (2003) 202 ALR 340; [2003] FCA 1085 Goldsmith v Yeshivah & Beth Rivkah Colleges Inc [2014] FCA 996 Hickey v Public Advocate (Victoria) [2012] FCA 1203 Purvis v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92; [2003] HCA 62 Smith v Marriot Support Services [2013] FCA 312 Suh v Minister for Immigration & Anor (2009) 175 FCR 515; [2009] FCAFC 42 Wade v State of Victoria (No.2) [2012] FCA 1080 |
| Applicant: | PHELIM HARRINGTON (BY HIS LITIGATION GUARDIANS, ANTHONY AND TERESA HARRINGTON) |
| First Respondent: | CATHOLIC EDUCATION OFFICE OF WESTERN AUSTRALIA |
| Second Respondent | PRENDIVILLE CATHOLIC COLLEGE |
| File Number: | PEG 369 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 October 2014 |
| Date of Last Submission: | 1 October 2014 |
| Delivered at: | Perth |
| Delivered on: | 1 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Longland |
| Solicitors for the Applicant: | Herbert Smith Freehills |
| Counsel for the Respondent: | Ms R Roberts |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
The settlement between the parties recorded in Annexure “A” of the affidavit of Teresa Bernadette Harrington sworn 26 September 2014 (“Harrington Affidavit”) is approved.
The:
(a)Harrington Affidavit, and Annexure “A” thereto; and
(b)the affidavit of Anthony Barry Longland, sworn 26 September 2014;
be treated on a confidential basis by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA”.
The proceedings be dismissed with no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 369 of 2013
| PHELIM HARRINGTON (BY HIS LITIGATION GUARDIANS, ANTHONY AND TERESA HARRINGTON) |
Applicant
And
| CATHOLIC EDUCATION OFFICE OF WESTERN AUSTRALIA |
Respondent
PRENDIVILLE CATHOLIC COLLEGE
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore Reasons for Judgment)
The Court has before it an application in a case for the approval of a settlement in a proceeding. The proceeding was commenced by the applicant, Master Phelim Harrington, through his litigation guardians. At the time this litigation commenced Master Harrington was and, indeed, remains a minor aged 17 years. Litigation was, and has been, conducted on his behalf by his litigation guardians Mr and Mrs Harrington, his father and mother.
The requirement for a litigation guardian in these circumstances arises from the terms of r.11.08 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). The Court needs to approve the settlement in this case because of the terms of r.9.70 of the Federal Court Rules 2011 (Cth) (“FC Rules”) which are applicable in this case by reason of r.1.05(2) of the FCC Rules.
The exposition of the Court’s reasoning in this matter will, to some degree, be circumscribed because of the agreed settlement terms as set out in a deed of settlement executed by the parties, which contains a confidentiality clause preventing the disclosure of the settlement terms. It is obvious that if these reasons were to disclose those terms, the benefit of the confidentiality clause would be reduced.
Master Harrington was a student at the second respondent, Prendiville Catholic College (“the College”), from about February 2010 to February 2013 and on or about 17 April 2010 was involved in a motor vehicle accident as a consequence of which he suffered certain brain injuries. On 16 May 2013 the litigation guardians caused to be lodged a complaint with the Australian Human Rights Commission (“AHRC”) alleging disability discrimination by the College and the first respondent, the Catholic Education Office of Western Australia (“the Office”).
It is unnecessary for present purposes to detail the particulars of the alleged disability discrimination. The matter was conciliated by the AHRC, but no settlement was reached, and a notice of termination under s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) issued on 9 October 2013.
Proceedings in this Court were commenced on 6 December 2013. The proceedings were referred to mediation on 14 February 2014 and mediation occurred on 10 April and 30 May 2014. Thereafter the parties’ representatives had ongoing conferral as a consequence of which a settlement was reached on 12 September 2014. The deed of settlement was subsequently executed by all parties including Master Harrington’s litigation guardians.
Rule 9.70(1) of the FC Rules requires that the litigation representative apply to the court for approval of the agreement. The application in a case was accompanied, as required by r.9.71(2) of the FC Rules, by:
a)an affidavit providing the material facts upon which the application in a case relied;
b)a copy of the settlement deed; and
c)the opinion of an independent lawyer to the effect that the terms of settlement were in the best interests of Master Harrington.
The “independent” lawyer who provided the advice was a lawyer who had been acting for the applicant in these proceedings. In Wade v State of Victoria (No.2) [2012] FCA 1080 (“Wade (No.2)”) and Hickey v Public Advocate (Victoria) [2012] FCA 1203 (“Hickey”), which are judgments of the Federal Court binding on this Court (and the Court refers to Suh v Minister for Immigration & Anor (2009) 175 FCR 515; [2009] FCAFC 42 in that respect), the Federal Court opined that a lawyer acting for a party could be an independent lawyer for the purposes of r.9.71(2)(c) of the FC Rules, if the opinion was provided in furtherance of the lawyer’s duty to assist the court, and not in furtherance of a duty to a party in the proceeding: see Wade (No.2) at paras.8 and 9 per Bromberg J and Hickey at paras.10 and 11 per Gray J.
The Court accepts that Master Harrington’s lawyer, Mr Longland, is well equipped by the reason of lengthy experience in discrimination law as a partner and solicitor with a major national and now international law firm since 1995 to provide advice on Master Harrington’s claim, and that he has done so, as he says in his affidavit, in pursuance or furtherance of his professional duty to assist the Court. Mr Longland’s independent advice is that the proposed terms of settlement are in Master Harrington’s best interests and are reasonable having regard to all of the circumstances.
The Court notes that in arriving at that view Mr Longland has taken account of and weighed relevant considerations, including:
a)the content of the statement of claim;
b)comparable relief for proceedings of similar kind, and the Court notes that in submissions today reference was made to the judgment at first instance in Purvis v State of New South Wales(Department of Education and Training) & Anor (2003) 217 CLR 92; [2003] HCA 62 (“Purvis”), and to the judgment of the Federal Court in Clarke v Catholic Education Office (2003) 202 ALR 340; [2003] FCA 1085 (“Clarke”) in relation to the quantum of damages in not dissimilar types of cases; and
c)the scope of the agreed release deed, the likely course and duration of the litigation if it were to proceed, having particular regard to the defences maintained by the first and second respondents; and
d)the likely costs which might be awarded against Master Harrington if he were to be unsuccessful in whole or in part in the litigation.
As the Federal Court observed in Smith v Marriot Support Services [2013] FCA 312 at para.12 per Tracey J:
In determining whether to sanction a compromise under Rule 9.70(1) of the Rules the Court is concerned only with the benefit of the disabled person. See Gillespie v Alperstein [1964] VR 749. In forming the necessary judgment significant weight will be given to the opinions of the applicant’s legal advisers. In Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974]1 All ER 1188 at 1191, Megarry J, speaking of an application made on behalf of a minor said that:
“…there is the important matter of the minor’s benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned.”
Those considerations are similarly relevant for present purposes and especially where the minor concerned has the added complication of a brain injury. As will already be evident, the Court has read the independent lawyer’s advice which supports the proposed terms of settlement. It is neither necessary nor appropriate given the terms of confidentiality in the deed of settlement for the Court to further expose the bases for the advice given. It suffices to say, as the Court has indicated above, that all relevant considerations have been accounted for and weighed in rendering the independent lawyer’s advice.
Having read the independent lawyer’s advice and having read the deed of settlement, having noted the approval and consent of Mrs Harrington as one of the litigation guardians to the terms of settlement, and noting that the terms of settlement are agreed by the respondents, the Court is satisfied that the terms of settlement are in Master Harrington’s best interests and are, therefore, approved by the Court. The Court also notes, as it did earlier, that the quantum of damages issue has been considered by the applicant’s advisers and reference is made, as the Court indicated earlier, to both Purvis and Clarke in that regard. Further, there is a non-financial component to the settlement which is and will be of importance in the future to Master Harrington and that is embodied in schedule 1 of the deed of settlement. Such non-financial components have been matters which have weighed in favour of the settlement in earlier Federal Court cases: see Goldsmith v Yeshivah & Beth Rivkah Colleges Inc [2014] FCA 996 at paras.10 and 15 per North J and Hickey at para.17 per Gray J. The Court notes that there is to be no order as to costs, and no issue as to Master Harrington’s costs arises as his lawyer has acted pro bono.
By reason of the terms as to confidentiality it will be necessary to make orders for the respective affidavits of Mrs Harrington and Mr Longland to be treated on a confidential basis by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA”.
The Court, therefore, indicates that there will be orders as follows:
a)The settlement between the parties recorded in Annexure “A” of the affidavit of Teresa Bernadette Harrington sworn 26 September 2014 (“Harrington Affidavit”) is approved.
b)The:
i)Harrington Affidavit, and Annexure “A” thereto; and
ii)the affidavit of Anthony Barry Longland, sworn 26 September 2014;
be treated on a confidential basis by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA”.
c)The proceedings be dismissed with no order as to costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 7 October 2014.
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