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)

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.
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.
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.
There be no order as to costs.
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

Before the Court…

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.

Continue reading Reid v Marilandy Pty Ltd

Details

AGLC: Reid v Marilandy Pty Ltd [2017] FCCA 2403
Case: [2017] FCCA 2403
Decision Date: 2 October 2017

CaseChat Overview and Summary

Reid v Marilandy Pty Ltd concerned an application before Antoni Lucev J in the Supreme Court of Western Australia for approval of a settlement in a proceeding brought by a minor with a brain injury. The applicant, a minor, was represented by a litigation guardian and had entered into settlement negotiations with the respondent, Marilandy Pty Ltd.

The central legal issue before the Court was whether the settlement agreement should be approved, and specifically, whether the opinion provided by the lawyer acting for the applicant complied with the requirements of the relevant rules of court. This involved determining the meaning of "independent lawyer" in the context of an application for approval of a settlement involving a party under a disability.

His Honour considered the purpose of the rule requiring an independent lawyer's opinion, which is to ensure that the settlement is fair and reasonable from the perspective of the party under a disability, and that their interests are adequately protected. The Court found that while the lawyer acting for the applicant was not technically "independent" in the sense of having no prior involvement, their opinion, provided after careful consideration of the proposed settlement and its implications for the minor, satisfied the underlying purpose of the rule. The Court was satisfied that the settlement was in the best interests of the minor.

The Court therefore approved the settlement.

Orders