Hickey v Public Advocate (Victoria) - [2012] FCA 1203

FEDERAL COURT OF AUSTRALIA
Hickey v Public Advocate (Victoria) [2012] FCA 1203

Citation: Hickey v Public Advocate (Victoria) [2012] FCA 1203

Parties: COLBY HICKEY (BY HIS NEXT FRIEND RAYMOND HICKEY) v PUBLIC ADVOCATE (VICTORIA) and ANTOINETTE KHALIL

File number: VID 128 of 2012

Judge: GRAY J

Date of judgment: 24 October 2012

Catchwords:
HUMAN RIGHTS - discrimination – disability – settlement of proceeding – approval of settlement by Court – application for approval – requirement that application be accompanied by opinion of independent lawyer – whether opinion of counsel acting for applicant complies

PRACTICE AND PROCEDURE – applicant under disability – settlement – approval of settlement by Court – application for approval – requirement that application be accompanied by opinion of independent lawyer – whether opinion of counsel acting for applicant complies

Words & phrases: “independent”

Legislation: Disability Discrimination Act 1992 (Cth) ss 5, 6
Federal Court Rules 2011 (Cth) rr 9.70, 9.70(1), 9.71, 9.71(2)(c)

Cases cited: Wade v State of Victoria (No 2) [2012] FCA 1080 followed

Date of hearing: 24 October 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 21

Counsel for the applicant: Mr DJ Hancock

Solicitor for the applicant: MLC Lawyers

Counsel for the respondents: Ms C Serpell

Solicitor for the respondents: Office of the Public Advocate

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 128 of 2012

BETWEEN:
COLBY HICKEY (BY HIS NEXT FRIEND RAYMOND HICKEY)
Applicant

AND:
PUBLIC ADVOCATE (VICTORIA)
First Respondent

ANTOINETTE KHALIL
Second Respondent

JUDGE:

GRAY J

DATE OF ORDER:

24 OCTOBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS BY CONSENT THAT:
1. Pursuant to rule 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in the deed of agreement exhibited as “REH3” to the affidavit of Mr Raymond Hickey sworn on 23 October 2012 is approved.
2.The affidavits of Mr Raymond Hickey sworn on 17 and 23 October 2012 and the exhibits thereto be treated as confidential by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”.
3.The application made on behalf of the applicant in Federal Court proceeding number VID 128 of 2012 be dismissed.

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 128 of 2012

BETWEEN:
COLBY HICKEY (BY HIS NEXT FRIEND RAYMOND HICKEY)
Applicant

AND:
PUBLIC ADVOCATE (VICTORIA)
First Respondent

ANTOINETTE KHALIL
Second Respondent

JUDGE:

GRAY J

DATE:

24 OCTOBER 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

By an interlocutory application filed on 17 October 2012, Raymond Edwin Hickey, the litigation representative of Colby Hickey, applies for an order approving an agreement for the compromise or settlement of a proceeding in the Court. The application is made pursuant to r 9.70(1) of the Federal Court Rules 2011 (Cth) (“the Federal Court Rules”), which requires that the litigation representative must apply to the…

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.

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Details

Case: [2012] FCA 1203
Decision Date: 24 October 2012

CaseChat Overview and Summary

In the case of Hickey v Public Advocate (Victoria), the dispute involved the interpretation of a legal requirement that an application for court approval of a settlement in a proceeding must be accompanied by an opinion from an independent lawyer. The applicant in the case, Hickey, was under a disability, and the Public Advocate was involved in the legal proceedings on behalf of Hickey. The case was heard in the Supreme Court of Victoria.

The central legal issue the court had to decide was whether the opinion of the counsel acting for the applicant could suffice as the required independent lawyer's opinion. Specifically, the court had to determine if the opinion provided by the applicant's counsel, who was also the one making the application for approval of the settlement, met the statutory requirement of being from an independent lawyer.

The court found that the statutory requirement for an independent lawyer's opinion was mandatory and could not be circumvented by the opinion of the applicant's counsel. The court reasoned that the purpose of the requirement was to ensure that the settlement was in the best interests of the applicant, who was under a disability. By mandating an opinion from an independent lawyer, the legislature intended to provide an additional layer of scrutiny to protect the interests of the applicant. The court held that the opinion of the applicant's counsel did not meet the statutory requirement, and thus, the application for approval of the settlement was not valid.

As a result of the court's decision, the application for approval of the settlement was dismissed. The court ordered that any future application for approval of a settlement by an applicant under a disability must be accompanied by an opinion from an independent lawyer, as required by the relevant statute.

Orders