Reeve (by his litigation guardian Reeve) v State of Western Australia
[2024] FedCFamC2G 258
•20 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Reeve (by his litigation guardian Reeve) v State of Western Australia [2024] FedCFamC2G 258
File number: PEG 113 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 20 March 2024 Catchwords: HUMAN RIGHTS – disability – alleged discrimination of school student who is a minor – settlement of proceeding – approval of settlement by Court. Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PH
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 22
Federal Court Rules 2011 (Cth) rr 9.70, 9.71
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 11.07
Cases cited: Burmester v Scouts Association of Australia, Western Australian Branch [2023] FedCFamC2G 600
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
Scandolera v State of Victoria (2015) 331 ALR 525; [2015] FCA 1451
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 hearing: 19 March 2024 Place: Perth Counsel for the Applicant: Mr G McIntyre SC Solicitor for the Applicant: Everyday Justice Counsel for the Respondent: Ms M Lindley Solicitor for the Respondent: State Solicitor’s Office ORDERS
PEG 113 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MASTER JOSHUA EDWARD REEVE BY HIS LITIGATION GUARDIAN MRS GEMMA JULIE REEVE
Applicant
AND: THE STATE OF WESTERN AUSTRALIA
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) the applicant and the respondent have leave to compromise the proceeding in accordance with the terms of the Deed of Settlement and Release dated 21 December 2023, annexed to the affidavit of Lauren Stubbs filed on 9 February 2024.
2.The application is otherwise dismissed.
3.There be no order as to the costs of the application.
4.The Court will publish reasons for the orders made today from Chambers at a later date.
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
On 9 February 2024 the applicant filed an interlocutory application seeking, amongst other things, an order pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) (FCA Rules) that the applicant and respondent have leave to compromise the proceeding in accordance with the terms of the Deed of Settlement and Release dated 21 December 2023 (Settlement Deed). The proceeding was commenced by Joshua Edward Reeve, 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.
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 of the proceeding because of the terms of rr 9.70 and 9.71 of the FCA Rules, which apply by reason of r 1.06 of the GFL Rules: see Burmester v Scouts Association of Australia, Western Australian Branch [2023] FedCFamC2G 600 at [2].
The interlocutory application came before me for hearing on 19 March 2024, at which time I made the following orders:
1.Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) the applicant and the respondent have leave to compromise the proceeding in accordance with the terms of the Deed of Settlement and Release dated 21 December 2023, annexed to the affidavit of Lauren Stubbs filed on 9 February 2024.
2. The application is otherwise dismissed.
3. There be no order as to the costs of the application.
4.The Court will publish reasons for the orders made today from Chambers at a later date.
These reasons are the reasons referred to in order 4 of the Order made on 19 March 2024.
RELEVANT BACKGROUND
At the relevant time for the purposes of this application, the applicant was a student enrolled at Bannister Creek Primary School (the school). The school is administered by the Department of Education Western Australia, who is named as the respondent to this proceeding.
The application made to this Court was filed on 1 June 2022. Prior to making the application to this Court, the applicant’s mother made a complaint to the Australian Human Rights Commission and that complaint was terminated pursuant to s 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth) on 8 April 2022.
In his Statement of Claim, the applicant claimed that he had been diagnosed with a number of medical conditions that are disabilities within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act). The applicant alleged that during the course of his enrolment at the school, the school unlawfully discriminated against him in contravention of s 22(2)(a) and (c) of the Disability Discrimination Act by engaging in both direct discrimination and indirect discrimination, as those terms are defined in ss 5 and 6 of the Disability Discrimination Act respectively, on the basis of his disability. The applicant in his Statement of Claim referred to several incidents during the period from 2018 to 2020 which he says amount to unlawful discrimination.
APPROVAL OF SETTLEMENT DEED
As indicated above, the parties have agreed to a Settlement Deed dated 21 December 2023 and the applicant subsequently filed an interlocutory application to seek approval of the settlement.
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.
Rule 9.71 of the FCA Rules 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.
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.
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 at [9] (Jackson J); see also, Scandolera v State of Victoria (2015) 331 ALR 525; [2015] FCA 1451 at [29] (Mortimer J).
The interlocutory application is supported by an affidavit of Lauren Stubbs filed on 9 February 2024. Ms Stubbs is the applicant’s solicitor. The affidavit is subject to a confidentiality order that I made by consent on 21 February 2024. It is therefore not appropriate to disclose the content of that affidavit in this judgment. In deciding to approve the settlement, I have considered the content of the affidavit and the annexures, including but not limited to the Settlement Deed and an opinion of Mr Greg McIntyre SC. Although Mr McIntyre represents the applicant in this proceeding, he confirmed at the hearing that the opinion is provided in furtherance of his duty to assist the Court, and I am satisfied that it is the opinion of an ‘independent’ lawyer for the purposes of r 9.71(2)(c) of the FCA Rules: see Wade v State of Victoria (No 2) [2012] FCA 1080 at [9] (Bromberg J).
I have given considerable weight to Mr McIntyre’s opinion, which is detailed, carefully considered and addresses matters to which the Court is required to have regard in deciding whether to approve the settlement of this proceeding.
The terms of the Settlement Deed are also confidential and are therefore not disclosed in this judgment, except to acknowledge that the applicant will receive both monetary compensation and other relief. I am satisfied that the settlement sum identified in the Settlement Deed is appropriate, taking into account the range of damages awarded by the courts in similar cases, and the relief the applicant might be able to secure at the hearing, allowing for the challenges that he may face at the hearing and in the usual course of litigation. I am also satisfied that the other relief set out in the Settlement Deed is appropriate and sufficiently beneficial to the applicant, taking into account that the applicant no longer attends the school and so the risk of any future discrimination of the type alleged by the applicant is low.
The applicant had pro bono legal assistance in this proceeding, and therefore it can be inferred that he did not incur legal costs. However, I take into account the possibility that the applicant (or his litigation guardian) may be ordered to pay the respondent’s costs if the matter proceeds to hearing and the respondent is successful. I also take into account the stress and mental impact that the applicant may face if the matter proceeds to hearing and the applicant is required to participate in the hearing. The desirability of avoiding any negative impact on the applicant’s health and well-being is a matter that is appropriately taken into account in considering whether the settlement is in the applicant’s best interests.
In all the circumstances, I am satisfied that it is in the applicant’s best interests for the Court to approve the agreement reached by the parties and reflected in the terms of the Settlement Deed. I therefore approve the settlement. I also agree that the other orders sought by the applicant and agreed to by the respondent are appropriate, namely that the proceeding otherwise be dismissed with 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 Ladhams. Associate:
Dated: 20 March 2024
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