Murrell v Mansfield Autism Statewide Services

Case [2020] FCA 943

FEDERAL COURT OF AUSTRALIA

Murrell v Mansfield Autism Statewide Services [2020] FCA 943

File number: VID 1316 of 2018
Judge: MORTIMER J
Date of judgment: 7 July 2020
Catchwords: HUMAN RIGHTS – disability discrimination – application by litigation guardian for approval of settlement – whether settlement should be approved – applicable principles – settlement approved
Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth)

Disability Standards for Education 2005 (Cth)

Federal Court of Australia Act 1976 (Cth) s 37AF(1)(b)

Federal Court Rules 2011 (Cth)

Supreme Court (General Civil Procedure) Rules 2015 (Vic)
Cases cited:

Elliott v State of Victoria [2018] FCA 1029

Fisher v Marin [2008] NSWSC 1357

James v WorkPower Inc [2019] FCA 1239

Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525
Date of hearing: Determined on the papers
Date of last submissions: 25 May 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 19
Solicitor for the Applicant: Berrill & Watson
Solicitor for the Respondent: Lander & Rogers Lawyers

ORDERS

VID 1316 of 2018
BETWEEN:

LACHLAN MURRELL (BY HIS NEXT FRIEND EMILY DIVE)

Applicant
AND:

MANSFIELD AUTISM STATEWIDE SERVICES

Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

7 JULY 2020

THE COURT ORDERS THAT:

1.The settlement of this proceeding, as set out in the Agreement marked as Annexure “MJB-1” to the affidavit of Michael James Bates, affirmed 28 May 2020, be approved.

2.If the Senior Master of the Supreme Court makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that the settlement sum referred to in cl 1 of the Agreement marked as Annexure “MJB-1” to the affidavit of Michael James Bates, affirmed 28 May 2020 be held in court for the benefit of the applicant, born on 14 July 2008, until he attains the age of 18 years:

(a)The respondent shall pay the settlement monies to the Senior Master for the benefit of the applicant; and

(b)The applicant has leave to file a notice of discontinuance of this proceeding with no order as to costs. For the avoidance of doubt, this constitutes an order otherwise for the purposes of r 26.12(7).

3.If the Senior Master of the Supreme Court does not make the order described in paragraph 2 by 4 August 2020 the matter be listed for case management on a date to be fixed.

4.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, Annexures “MJB-1” and “MJB-2” to the affidavit of Michael James Bates, affirmed 28 May 2020 must be treated as confidential to the parties in this proceeding and until further order:

(a)must be marked as confidential to the parties on the Court’s Electronic Court File; and

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

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Murrell v Mansfield Autism Statewide Services [2020] FCA 943
Case
[2020] FCA 943
Decision Date

CaseChat Overview and Summary

The case of Murrell v Mansfield Autism Statewide Services involved a legal dispute concerning disability discrimination. The applicant, Lachlan Murrell, through his litigation guardian, sought approval for a settlement with the respondent, a not-for-profit organisation delivering educational and training programs for individuals with Autism Spectrum Disorder and other disabilities. The central issue was whether the settlement, which the parties had reached, should be approved by the Court. The settlement pertained to allegations that the respondent had unlawfully discriminated against Lachlan by subjecting him to temporary seclusion and restraint during the period he received services from the respondent.

The court was tasked with determining the appropriateness of the settlement by considering the principles applicable to such approvals. It was required to assess whether the settlement was in the best interests of Lachlan, taking into account factors such as the potential benefits of the settlement, the efficiency of resolving the matter through settlement, and the overall fairness of the terms to the applicant. The court also needed to ensure that the settlement did not contravene any statutory requirements or the principles of natural justice.

In its reasoning, the court found that the settlement was in Lachlan's best interests, given the potential benefits of the settlement amount, the resolution of the dispute without the need for a lengthy trial, and the efficiency with which the proceedings had been managed by the current solicitors. The court concluded that approving the settlement would serve the interests of justice by avoiding the risks and uncertainties of litigation and providing a resolution that was satisfactory to both parties. Therefore, the court approved the settlement, subject to certain conditions regarding the handling of the settlement funds.

The court ordered that the settlement be approved, with specific provisions regarding the payment and holding of the settlement monies by the Senior Master of the Supreme Court if necessary. Additionally, the court made orders to ensure the confidentiality of certain documents related to the settlement, in accordance with statutory provisions. This decision facilitated the resolution of the dispute and provided a just outcome for Lachlan.

Orders

Orders of the court

1. The settlement of this proceeding, as set out in the Agreement marked as Annexure “MJB-1” to the affidavit of Michael James Bates, affirmed 28 May 2020, be approved.

2. If the Senior Master of the Supreme Court makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that the settlement sum referred to in cl 1 of the Agreement marked as Annexure “MJB-1” to the affidavit of Michael James Bates, affirmed 28 May 2020 be held in court for the benefit of the applicant, born on 14 July 2008, until he attains the age of 18 years:

(a) The respondent shall pay the settlement monies to the Senior Master for the benefit of the applicant; and

(b) The applicant has leave to file a notice of discontinuance of this proceeding with no order as to costs. For the avoidance of doubt, this constitutes an order otherwise for the purposes of r 26.12(7).

3. If the Senior Master of the Supreme Court does not make the order described in paragraph 2 by 4 August 2020 the matter be listed for case management on a date to be fixed.

4. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, Annexures “MJB-1” and “MJB-2” to the affidavit of Michael James Bates, affirmed 28 May 2020 must be treated as confidential to the parties in this proceeding and until further order:

(a) must be marked as confidential to the parties on the Court’s Electronic Court File; and

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

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

Background

Background to the litigation

For the reasons set out below, I am satisfied the settlement should be approved.Background The respondent in its defence described itself as “a not for profit organisation which delivers innovative educational and training programs for people with Autism spectrum disorder and other disabilities from infancy to adulthood”. Lachlan Murrell is almost 12 years old. While the respondent did not admit the description of his disabilities as alleged in the Statement of Claim (which included Autism Spectrum Disorder; Attention Deficit Hyperactivity Disorder; Separation Anxiety Disorder and Post-Traumatic Stress Disorder), there is no dispute that Lachlan had disabilities of a kind which were covered by services provided by the respondent. The respondent admitted in its defence that it provided some services to Lachlan, at its premises and at an offsite camp, as well as in his home, at various times between February 2017 and August 2018. It admitted that on some occasions Lachlan was subject to “temporary seclusion” and restraint, which it maintained was used as a “last resort” and was required because of Lachlan’s behaviour, in order to protect his own health and safety and that of others. The use of restraint and seclusion during Lachlan’s time with the respondent was a principal focus of the Statement of Claim. In February 2018 a complaint was made by Ms Dive on behalf of Lachlan to the Australian Human Rights Commission under s 46P of the Australian Human Rights Commission Act 1986 (Cth). The complaint was terminated by the Commission on 16 August 2018, on the basis that there was no reasonable prospect of the matter being settled by conciliation. This proceeding was commenced on 12 October 2018. The respondent has denied engaging in any unlawful discrimination. Initially, Lachlan and his mother as his litigation guardian were represented by a different firm of solicitors to those who are currently on the Court’s record. Little occurred to progress the claim. The present solicitors took over this proceeding with the objective of assisting Ms Dive to progress the claim in a reasonable and efficient manner; these objectives were explained by Mr Bates, the solicitor for the applicant, at several case management hearings. Unfortunately, the claims were still slow to progress, although ultimately the matter was listed for trial in April 2020. However, there were delays in having an amended statement of claim prepared, and delays in trial preparation. Ultimately, after several revisions to the timetable, these delays had the result that the trial date became untenable and the listing was vacated by the Court.The present application In early April 2020, the Court was informed the parties had agreed to settle the proceeding. The settlement approval application is supported by an affidavit of Michael Bates, the applicant’s solicitor. The settlement deed is exhibited to that affidavit, as is an opinion of Mr Bates concerning whether the settlement reached is in Lachlan’s best interests.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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