Thompson, on behalf of Hudson v New South Wales Department of Education
[2018] FCA 1704
•9 November 2018
FEDERAL COURT OF AUSTRALIA
Thompson, on behalf of Hudson v New South Wales Department of Education [2018] FCA 1704
File number: NSD 1797 of 2018 Judge: ROBERTSON J Date of judgment: 9 November 2018 Catchwords:
PRACTICE AND PROCEDURE – application for approval of settlement of proceedings concerning discrimination claims – Held: appropriate that settlement approved, application granted
Legislation: Disability Discrimination Act 1992 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AI
Federal Court Rules 2011 (Cth) r 7.11
Date of hearing: Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr G O’Mahoney Solicitor for the Applicant: Baker & McKenzie Counsel for the First Respondent: Ms S Smith Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 1797 of 2018 BETWEEN: THOMPSON ON BEHALF OF BLAKE HUDSON AND KASIHA HUDSON
Applicant
AND: NSW SOUTH WALES DEPARTMENT OF EDUCATION
First Respondent
DESIREE MOORE
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
9 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The settlement between the parties recorded in the Settlement Deed annexed and marked “SA-3” to the affidavit of Mr Sinan Alnajjar affirmed 17 September 2018 (Sinan Affidavit) is approved.
2.The settlement monies that are payable pursuant to the Settlement Deed be paid to the Interested Person, Toni Thompson, for the benefit of Blake Hudson and Kasiha Hudson, within 14 days of the other parties being notified that the Court has approved the Settlement Deed.
3.Until further order, an interim order under s 37AI of the Federal Court of Australia Act 1976 (Cth) that the Sinan Affidavit and its annexures be treated as confidential to the parties in this proceeding and:
a.may only be used for the purposes of this proceeding;
b.may be disclosed only to the parties and their legal representatives. In respect of Annexure “SA-4”, it may only be disclosed to the Interested Person 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.If any party wishes to be heard in relation to the matters in [12] and [13] of the reasons for judgment, they should notify my associate no later than close of business on Wednesday, 14 November 2018. Similarly, if any party accepts the matters in [12] and [13] they should similarly notify my associate within the same time.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
This application is for an order approving an agreement made for Blake Hudson and Kasiha Hudson for compromise or settlement of enforceable claims. Toni Thompson, the parent and sole legal guardian of Blake Hudson and Kasiha Hudson, applies for the following orders:
1The settlement between the Parties recorded in the Settlement Deed annexed and marked “SA-3” to the affidavit of Mr Sinan Alnajjar affirmed 17 September 2018 (Sinan Affidavit) be approved.
2.The settlement monies that are payable pursuant to the Settlement Deed be paid to the Interested Person, Toni Thompson, for the benefit of Blake Hudson and Kasiha Hudson, within 14 days of the Other Parties being notified that the Court has approved the Settlement Deed.
3.The Sinan Affidavit and its annexures be treated as confidential to the Parties in this proceeding and until further order:
a. may only be used for the purposes of this proceeding;
b.may be disclosed only to the parties and their legal representatives. In respect of Annexure “SA-4”, it may only be disclosed to the Interested Person 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.Blake Hudson and Kasiha Hudson be exempted from payment of the costs associated with the bringing of the Application.
5. There be no order as to costs.
6. Any other orders the Court sees fit.
Rule 7.11 of the Federal Court Rules 2011 (Cth) provides as follows:
7.11 Compromise or settlement of matter before proceeding
(1)If a claim that is enforceable by a proceeding in the Court is made by, for or against a person under a legal incapacity, an interested person may apply to the Court for an order:
(a)approving an agreement made by or for the person for compromise or settlement of the claim before any proceeding is started; and
(b) enforcing the claim.
Note 1:Interested person, for a person under legal incapacity, and person under a legal incapacity are defined in the Dictionary.
Note 2:Division 9.6 deals with a proceeding by or against a person under a legal incapacity.
(2) An application must 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 Court may, as a condition of an approval, require that any money or other property payable for the benefit of a person under a legal incapacity be dealt with by way of a settlement or in any other way that the Court considers appropriate.
Note: The Court may give approval subject to conditions—see rule 1.33.
(4)If the Court does not approve the agreement, the agreement is not binding on the person under a legal incapacity.
I approve the settlement between the parties recorded in the Settlement Deed annexed and marked “SA-3” to the affidavit of Mr Sinan Alnajjar affirmed 17 September 2018.
In approving the Settlement Deed I have had regard to the complaints made; to the response to the complaints; to the terms of the Settlement Deed and to the opinion provided to the Court by Mr Greg O’Mahoney, barrister.
The opinion Mr O’Mahoney prepared was provided in furtherance of his duty to assist the Court and not in furtherance of any duty he may have had to a party in the proceeding.
I found the opinion to be comprehensive and of substantial assistance in the task of deciding whether or not to approve the settlement recorded in the Settlement Deed. It seems to me that the matters referred to in the opinion show that the settlement is in the best interests of Blake Hudson and Kasiha Hudson, the two persons under a legal incapacity. I have weighed the prospects of success and the financial and non-financial strains on Toni Thompson, and on Blake Hudson and Kasiha Hudson, if the matter were required to be litigated.
I am satisfied that the Settlement Deed is in the best interests of Blake Hudson and Kasiha Hudson.
I order that the settlement monies that are payable pursuant to the Settlement Deed be paid to Toni Thompson, for the benefit of Blake Hudson and Kasiha Hudson, within 14 days of the other parties referred to in the application being notified that the Court has approved the Settlement Deed.
There are two matters that remain.
First, the parties who appeared before me accepted that proposed order 4, that Blake Hudson and Kasiha Hudson be exempted from payment of the costs associated with the bringing of the application, was not appropriate to be made as that result has been achieved by an administrative exemption on the filing of the application.
Second, I am prepared to make an interim order under s 37AI of the Federal Court of Australia Act 1976 (Cth) in terms of proposed order 3, but I consider that a narrower order would be more appropriate and would better achieve the obligations set out in s 37AE: that in deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
I would propose that in the longer term, until further order, the affidavit of Mr Alnajjar affirmed 17 September 2018 not be the subject of a non-publication or suppression order but that only the four annexures to his affidavit be subject to such an order. The ground of that order would be that the order is necessary to prevent prejudice to the proper administration of justice.
I also note that it is proposed in the application that the opinion of Mr O’Mahoney may only be disclosed to Toni Thompson on behalf of Blake Hudson and Kasiha Hudson, and their legal representatives. I have no difficulty with this proposal if it is consented to but I wish to be sure that that is the position.
If any party wishes to be heard in relation to the matters in [12] and [13] above, they should notify my associate no later than close of business on Wednesday, 14 November 2018. Similarly, if any party accepts the matters in [12] and [13] above they should similarly notify my associate within the same time. The only matter that, in the first instance, needs to be indicated in relation to [13] is whether or not the other parties consent to that course.
I make orders accordingly.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 9 November 2018
0
0
3