Reid v Marilandy Pty Ltd

[2017] FCCA 2403

FEDERAL CIRCUIT COURT OF AUSTRALIA

REID & ANOR v MARILANDY PTY LTD [2017] FCCA 2403

Catchwords:
HUMAN RIGHTS – Discrimination – disability – minor with a brain injury – settlement of proceeding – approval of settlement by Court.

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:

Disability Discrimination Act 1992 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.1.05(2), 11.08

Federal Court Rules 2011 (Cth), Div.9.6, rr.7.11, 9.70, 9.71, Sch.1

Cases cited:

Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296
Gillespie v Alperstein [1964] VR 749
Harrington v Catholic Education Office & Anor [2014] FCCA 2260
Hickey v Public Advocate (Victoria) [2012] FCA 1203
In Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974] 1 All ER 1188

Scandolera v Victoria [2015] FCA 1451; (2015) 331 ALR 525

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

First Applicant: BRENT REID

Second Applicant: MICHELLE REID

Respondent: MARILANDY PTY LTD (ACN 159 418 952) TRADING AS TURTLE COVE EARLY LEARNING CENTRE-WANDINA

File Number: PEG 496 of 2017

Judgment of: Judge Antoni Lucev

Hearing date: 26 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Perth

Delivered on: 2 October 2017

REPRESENTATION

Solicitors for the Applicants: Mr A Longland

Solicitors for the Respondents: Mr A Clarke

ORDERS (as made on 26 September 2017)

1. The settlement between the parties recorded in the Settlement Deed annexed and marked "MAR-1" to the affidavit of Michelle Alison Reid dated 11 September 2017("Reid Affidavit") is approved.

2. The settlement monies that are payable pursuant to the Settlement Deed be paid to the Interested Persons, Brent Reid and Michelle Reid, for the benefit of Jamie Reid.

3. The Reid Affidavit, and Annexures "MAR-1" and "MAR-2" thereto, and the supplementary affidavit of Michelle Alison Reid dated 26 September 2017, be treated as confidential to the parties in this proceeding and until further order:

   (a)may be used only for the purposes of this proceeding;

   (b)may be disclosed only to the parties and their legal representatives. In respect of Annexure "MAR-2", it may only be disclosed to the Interested Persons and their legal representatives; and

   (c)will not be open to public inspection, disclosed in open court or disclosed in the open part of any court transcript.

4. There be no order as to costs.

5. Written reasons for judgement will be electronically published from Chambers at a later date to be specified.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 496 of 2017

BRENT REID

First Applicant

MICHELLE REID

Second Applicant

And

MARILANDY PTY LTD (ACN 159 418 952) TRADING AS TURTLE COVE EARLY LEARNING CENTRE-WANDINA

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for the approval of a settlement agreement (“Settlement Deed”) commenced by the first and second applicants (“Interested Persons”) on behalf of their son (“Master Reid”). Master Reid is the son, of minority age, of the Interested Persons, and suffers from a brain condition.

2. The Settlement Deed will not be binding on Master Reid unless the Court grants approval pursuant to r.7.11 of the Federal Court Rules 2011 (Cth) (“FC Rules”), which are applicable by reason of r.1.05(2) of the FCC Rules.

3. The Settlement Deed includes a confidentiality clause preventing the disclosure of the terms of settlement. For this reason the Court’s published reasoning in this matter will, to some extent, be restricted.

Background

1. Marilandy Pty Ltd trading as Turtle Cove Early Learning Centre Wandina (the “Respondent”) provided child care services to Master Reid from 3 February 2014 to 23 September 2016. On 15 December 2016 the Interested Persons lodged a complaint (“Disability Complaint”) with the Australian Human Rights Commission alleging the Respondent had unlawfully discriminated against Master Reid under the Disability Discrimination Act 1992 (Cth). It is unnecessary for the particulars of the Disability Complaint to be detailed.

2. On 18 August 2017, prior to formal proceedings commencing for the Disability Complaint, the parties reached an agreement on the terms of the Settlement Deed.

The Present Application

1. On 13 September 2017 an application for the Court to approve the Settlement Deed under the FC Rules r.7.11 was lodged by the Interested Persons. An ‘interested person for a person under a legal incapacity,’ is defined in Sch.1(a) of the FC Rules to mean:

   for a minor- - the person’s parent or guardian.

2. Rule 7.11(a) of the FC Rules allows an interested person to apply to the Court for approval of an agreement before any proceeding of a claim has started. The application in a case is required by FC Rules r.7.11(2) to be:

   a) in accordance with Form 13; and

   b) accompanied by the following:

   (i)    an affidavit stating the material facts on which the application relies;

   (ii)   the agreement that is sought to be approved;

   (iii)   an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.

3. The second applicant lodged the accompanying affidavit on behalf of the Interested Persons, the Settlement Deed and the opinion of Mr Longland, lawyer for the Interested Persons, affirming the Settlement Deed was in the best interest of Master Reid.

4. The Respondent expressed no objection to the Court receiving any of these documents.

Consideration

1. Rule 7.11(a) of the FC Rules contains a note referring to Div.9.6 of the FC Rules when considering proceeding for “a person under a legal incapacity”. In Scandolera v Victoria [2015] FCA 145; (2015) 331 ALR 525 (“Scandolera”), a judgment of the Federal Court binding upon this Court (see Suh v Minister for Immigration & Anor (2009) 175 FCR 515; [2009] FCAFC 42), Mortimer J at [14] noted:

   …application for settlement approval was expressed to be brought by an interested person under r 7.11. [Name deleted] is in any event the applicants' litigation representative and therefore the terms of rr 9.70 and 9.71 are also applicable.

2. Rules 9.70 and 9.71 of the FC Rules concern an application by a litigation representative for approval of an agreement where proceedings have already commenced in the Court. The same principles expounded in cases considering rr.9.70 and 9.71 of the FC Rules can be applied in an application arising pursuant to FC Rules, r.7.11.

3. 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].

4. When making this determination, pursuant to the FC Rules, r.7.11(b)(iii), the Court should be assisted by the opinion of an independent lawyer. It was the opinion of Mr Longland, the lawyer of the Interested Persons, the terms of the Settlement Deed were within Master Reid’s best interests.

5. 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 (equivalent of r.7.11(b)(iii)), 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.

6. Where, as here, the minor is suffering from a brain condition, the Court should rely to a considerable extent on the views of those who may have access to more material and been afforded greater opportunity to weigh the matter than the Court: Scandolera at [28]; Harrington v Catholic Education Office & Anor [2014] FCCA 2260 at [12] per Lucev J and In Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974]1 All ER 1188 at [1191] per Megarry J.

7. The Court accepts that Mr Longland is well experienced in equal opportunity law having practiced in the area as a partner and solicitor with a major national and now international law firm since 1995. The Court has accepted the opinion of Mr Longland in similar matters previously, and finds no reason not to accept his opinion in the present case concerning Master Reid

8. With respect to the confidentiality requested by the parties, it is not necessary or appropriate for the contents of Mr Longlands opinion to be exposed. Noting the relevant factors identified by Mortimer J in Butler at [15] and [17] and Scandolera at [31]-[32], the independent legal advice has accounted for and weighed all relevant considerations in concluding the Settlement Deed was in the best interests of Master Reid.

9. Having read the independent lawyer’s advice and the Settlement Deed, noted the approval and consent of the Interested Persons, and without any objections raised by the Respondents, the Court is satisfied that the terms of Settlement Deed are in Master Reid’s best interests.

10. In Butler, Mortimer J at [16] opined the jurisdiction of the Court to approve a settlement for a person under a disability is inherently protective:

    I take that to mean protective not only of the financial interests of the person under a disability, but also protective of her interests in being as well and as healthy as she can, of living as comfortably as she can, with a good quality of life.

    The Interest Persons affidavit dated 26 September 2017 has satisfied the Court the quantum of the agreed settlement amount is appropriate in Master Reid’s circumstances and sufficient to satisfy the protective function as described by Mortimer J.

Conclusion

1. The Court approves the Settlement Deed referred to as annexure MAR-1 in the affidavit of Michelle Reid affirmed at Geraldton on 11 September 2017.

2. Pursuant to r.7.11(4) of the FC Rules, this approval by the Court will from the date of execution of the Settlement Deed by the Interested Persons and Respondent will be binding on Master Reid.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  2 October 2017