Shaw v Leist (No 2)
[2021] FCCA 1750
•29 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Shaw v Leist (No 2) [2021] FCCA 1750
File number(s): PEG 368 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 29 July 2021 Catchwords: INDUSTRIAL LAW – alleged misrepresentation of employment as contracting arrangement – alleged dismissal in contravention of a general protection – settlement of proceeding – approval of settlement by Court
PRACTICE AND PROCEDURE – Respondent legally incapable – settlement – approval of settlement by Court – requirement that application be accompanied by opinion of independent lawyer – settlement approved
Legislation: Fair Work Act 2009 (Cth) ss 340, 357
Federal Circuit Court Rules 2001 (Cth) r 1.05
Federal Court Rules 2011 (Cth) rr 9.70, 9.71
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
Reid & Anor v Marilandy Pty Ltd [2017] FCCA 2403, (2017) 325 FLR 235
Shaw v Leist [2021] FCCA 1236
Smith v Marriot Support Services [2013] FCA 312
Wade v State of Victoria (No.2) [2012] FCA 1080
Number of paragraphs: 21 Date of hearing: 29 July 2021 Place: Perth Counsel for the Applicant: Mr D. Kiel Solicitor for the Applicant: DPSK Lawyers Counsel for the Respondent: Mr D. Miller Solicitor for the Respondent: Culshaw Miller Lawyers ORDERS
PEG 368 of 2020 BETWEEN: RONALD MARK SHAW
Applicant
AND: LLOYD LEIST
(by his Litigation Guardian)Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.Pursuant to Rule 9.70 of the Federal Court Rules 2011 (Cth) the Court approves the settlement of the Applicant’s claim in respect of these proceedings in the terms contained in the Deed of Settlement and Release, a signed copy of which is attached to the Affidavit of Clayton Leist dated 22 July 2021 and filed in support of this application.
2.On the grounds that it contains privileged material the Affidavit of Darren John Miller sworn 22 July 2021 (and the advice of Counsel attached as annexure DJM1) (Restricted Material) be restricted permanently pursuant to Rule 2.32 of the Federal Court Rules 2011 (Cth) such that no party other than the Applicant and the Courts shall have access to the Restricted Material.
3.On the grounds that it contains confidential material the Affidavit of Clayton Leist sworn 22 July 2021 (and the Deed of Settlement and Release attached as annexure CL1) (Further Restricted Material) be restricted permanently pursuant to Rule 2.32 of the Federal Court Rules 2011 (Cth) such that no party other than the Applicant and the Courts shall have access to the Further Restricted Material.
4.There be no order as to costs.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
Before the Court is an application for the approval of a settlement agreement (“Settlement Deed”). The applicant is Ronald Mark Shaw (“Mr Shaw”). Mr Clayton Leist is the litigation guardian on behalf of his father, the respondent, Mr Lloyd Leist: Shaw v Leist [2021] FCCA 1236, (“Shaw (No.1)”). Mr Lloyd Leist is 79 years of age and was diagnosed with lung cancer several years ago and has since moved to palliative care. He receives daily care from his sons and de-facto partner, fortnightly professional medical check-ups, and fortnightly in-home health and aged care services. He also experiences cognitive difficulties, including short term memory loss, confusion and increased stress and anxiety.
The Settlement Deed will not be binding on Mr Lloyd Leist unless the Court grants approval pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) (“FC Rules”), which are applicable by reason of r 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
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.
The originating application (“Substantive Application”) was filed on 10 December 2020 by Mr Shaw, alleging that the respondent, Mr Lloyd Leist, misrepresented his employment as an independent contracting arrangement in contravention of s 357 of the Fair Work Act 2009 (Cth) (“FW Act”), and that Mr Shaw was dismissed from his employment for exercising a workplace right in contravention of s 340(1) of the FW Act.
The matter was listed for a directions hearing on 28 January 2021. Lloyd Leist’s sons, Messrs Clayton Leist and Jordan Leist, appeared on behalf of their father by leave of the Court. Mr Shaw appeared on his own behalf. Orders were made at the directions hearing, which, among other things, referred the matter to mediation before a Registrar of the Court (“Directions Orders”).
On 11 February 2021 Mr Shaw filed a notice of address for service, which indicated that he was now represented by a lawyer in the matter. A notice to appear was filed by Mr Jordan Leist on behalf of, but without the authorisation of, Mr Lloyd Leist on 19 February 2021. On 19 April 2021, the matter was referred back to the Court from the Registry, without any mediation taking place, on the basis of alleged non-compliance with the Directions Orders.
On 28 April 2021 the Court listed the matter for further directions on 6 May 2021. On 5 May 2021, Mr Clayton Leist’s lawyer emailed the Court requesting a 14-day adjournment of the further directions hearing to allow sufficient time for Mr Clayton Leist to make an application to be appointed as litigation guardian of Mr Lloyd Leist. The Court made orders of its own motion on 5 May 2021, vacating the further directions hearing.
Following an Application in a Case, filed 20 May 2021, Mr Clayton Leist was appointed as litigation guardian of Mr Lloyd Leist for the purposes of the litigation arising in relation to the Substantive Application: Shaw (No.1 ).
The Application in a Case presently before the Court, lodged by Mr Clayton Leist as litigation guardian for Mr Lloyd Leist, which was filed on 22 July 2021, seeks the Court’s approval of the Settlement Deed under the FC Rules r 9.70. The Application in a Case was accompanied by an affidavit of Mr Darren John Miller (“Miller Affidavit”), sworn 22 July 2021, annexing the opinion of a legal practitioner, Mr Jason Raftos (“Mr Raftos”), and an affidavit of Mr Clayton Leist (“Clayton Leist Affidavit”), sworn 21 July 2021, and annexing the Settlement Deed.
Orders are also sought to maintain confidentiality of certain material on the grounds of privilege and that there be no order as to costs.
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.
Rule 9.71 of the FC Rules allows a litigation representative to apply to the Court for approval of an agreement. The application in a case is required by FC Rules r 9.71 to be:
(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.
The relevant legal principles were summarised as follows in Reid & Anor v Marilandy Pty Ltd [2017] FCCA 2403, (2017) 325 FLR 235 at [12]-[15] per Judge Lucev as follows:
(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.
It is the opinion of Mr Raftos that the terms of the Settlement Deed are in Mr Lloyd Leist’s best interests. Mr Raftos is well known to the Court, and is a lawyer with experience both as a barrister and solicitor, in the field of workplace relations, over a period of about 20 years. Noting the relevant factors identified by Mortimer J in Butler at [15] and [17], the independent legal advice has accounted for and weighed all relevant considerations in concluding the Settlement Deed is in the best interests of Mr Lloyd Leist. The Court sees no reason not to accept his opinion in this case.
With respect to the confidentiality requested by the parties, it is not necessary or appropriate for the contents of the Clayton Leist Affidavit, the Miller Affidavit, or Mr Raftos’ opinion, to be exposed.
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 Clayton Leist affidavit has satisfied the Court the quantum of the agreed settlement amount is appropriate in Mr Lloyd Leist’s circumstances and sufficient to satisfy the protective function referred to in Butler.
Having read the independent lawyer’s advice and the Settlement Deed, noted the approval and consent of Mr Clayton Leist, the litigation guardian, and without any objections been raised by Mr Shaw, the Court is satisfied that the terms of Settlement Deed are in Mr Lloyd Leist’s best interests.
The Court approves the Settlement Deed referred to as annexure CL1 in the Clayton Leist Affidavit affirmed at Bayswater on 21 July 2021.
Pursuant to r 9.70(2) of the FC Rules, this approval by the Court will be from the date of execution of the Settlement Deed by Mr Shaw and the Litigation Guardian, Mr Clayton Leist, and will be binding on Mr Lloyd Leist.
In the circumstances, there will be orders as per the Amended Minute of Proposed Orders provided by the Respondent, with some slight amendments.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 July 2021
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