Williamson (by her litigation guardian Williamson) v State of Victoria (Department of Education and Training)
[2024] FedCFamC2G 1359
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williamson (by her litigation guardian Williamson) v State of Victoria (Department of Education and Training) [2024] FedCFamC2G 1359
File number: MLG 399 of 2023 Judgment of: JUDGE FORBES Date of judgment: 20 November 2024 Catchwords: HUMAN RIGHTS – Disability Discrimination – where minor represented by litigation guardian – claim relating to conditions of transport for school aged applicant – where parties have compromised proceeding and made settlement deed – whether terms of settlement should be approved by the court – whether settlement in the best interests of the applicant – consideration of relevant factors including independent legal advice – settlement approved Legislation: Disability Discrimination Act 1992 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 230
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 1.06
Federal Court Rules 2011 (Cth) r 9.70, 9.71Cases cited: Burmester v Scouts Association of Australia, Western Australia Branch [2023] FedCFamC2G 600
Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296
Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974] 1 All ER 1188
Shaw v Leist (No 2) [2021] FCCA 1750
Wade v State of Victoria (No.2) [2012] FCA 1080Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 20 November 2024 Place: Melbourne Counsel for the Applicants: Mr Munt Solicitor for the Applicants: Disability Discrimination Legal Service Inc Solicitor for the Respondent: Ms Grover; Minter Ellison ORDERS
MLG 399 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMMY WILLIAMSON
First Applicant
LOUISE HORTON
Second Applicant
AND: STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND TRAINING
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 9.70 of the Federal Court Rules 2011 (Cth), the Court approves the settlement set out in the deed of release annexed to the affidavit of Kerry Lynne O’Hagan affirmed on 30 October 2024.
2.Pursuant to section 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and being satisfied that it is necessary to prevent prejudice to the proper administration of justice, the application in a proceeding dated 30 October 2024 and the affidavit of Kerry Lynne O’Hagan affirmed on 30 October 2024 and its exhibits are all to be treated as confidential until further order of the Court and are to be placed in a sealed envelope or otherwise be electronically kept and marked as “Not to be opened without the permission of a Judge of this Court”.
3.There be liberty to apply in relation to any matters arising out of these orders.
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
(ex tempore revised from transcript)JUDGE FORBES
BACKGROUND
In this matter, the first applicant, by her next friend and litigation guardian, seeks relief against the Victorian Department of Education and Training for alleged breaches of the Disability Discrimination Act 1992 (Cth). The first applicant is a child of primary school age and currently attends one of the respondent’s schools. The substantive proceeding was commenced by an application to the Court in March 2023 after unsuccessful conciliation by the Australian Human Rights Commission.
It is unnecessary for present purposes to disclose the nature of the applicant’s disability or the alleged acts of discrimination, save that they relate to the applicant’s particular needs and the means and conditions of the applicant’s transport to and from school from her location. In her application to the Court, the applicant sought relief including a declaration of contravening conduct by the State, damages and orders regarding access arrangements.
The applicant’s mother commenced her own litigation against the respondent, alleging unlawful discrimination against her as an associate of a person with a disability. That proceeding was consolidated with the current case by an order made by Judge Champion in July 2023.
The State has filed a response in the proceeding. It is not contested that the first applicant has a disability within the meaning of the Disability Discrimination Act 1992 (Cth), but the State denies the alleged contraventions. The applicant’s mother, who is the second applicant, has been appointed the child’s litigation guardian and has conducted the litigation on her daughter’s behalf.
APPROVAL OF SETTLEMENT DEED
The litigation has progressed, including through a court-assisted mediation process. The parties now wish to compromise the proceeding.
By an application dated 30 October 2024 the applicant seeks orders that the Court approve the parties’ settlement pursuant to rule 9.70 of the Federal Court Rules 2011 (Cth). The applicant also seeks ancillary orders to maintain the confidentiality of the settlement, this application and documents which might disclose the terms of the settlement. The respondent does not oppose the application and consents to the orders proposed.
The terms of settlement are contained in a deed of release, a copy of which is annexed as exhibit KO-1 to the affidavit of Kerry-Lynne O’Hagan sworn 30 October 2024. The deponent of the affidavit has had conduct of the matter on behalf of the applicant and her litigation representative. The deed of release dated 25 July 2024 has been executed by the parties, and copies exchanged.
Ms O’Hagan deposes that the parties’ compromise was reached after extensive mediation efforts and a long course of negotiations. In the course of the mediation and negotiations, the applicant and litigation guardian were represented by experienced counsel, Mr Ian Munt, and he has provided legal advice about substantive issues and the prospects and costs of litigation. A copy of that advice is before the court.
The settlement deed will not be binding on the applicant unless the Court grants leave to compromise the proceeding pursuant to rule 9.70 of the Federal Court Rules 2011 (Cth). That rule, albeit of the Federal Court, applies in this Court by reason of rule 1.06(2) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth)[1].
[1] See also Burmester v Scouts Association of Australia, Western Australia Branch [2023] FedCFamC2G 600
The relevant rules, 9.70 and 9.71 of the Federal Court Rules 2011 (Cth), concern an application by a litigation representative for approval of an agreement where proceedings have already commenced in the Court. Rule 9.71 sets out as follows:
Application by litigation representative for approval of agreement
(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.
In Shaw v Leist (No 2) [2021] FCCA 1750 at [13], Judge Lucev of this Court provided a convenient summary of the legal principles relevant to the approval of a settlement agreement:
“(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 an applicant, the Court may consider the circumstances relevant to the proceeding, including what might have been secured at trial, the vicissitudes of litigation, the advantages of securing a reasonable compromise that avoids the financial burden and risk of litigation, and any pressures upon the applicant and their family.
With respect to the confidentiality that the parties have requested, it is not necessary or appropriate for me to expose the detail of Ms O’Hagan’s affidavit or the legal opinion of Mr Munt which is annexed to it. The confidentiality of those terms are an important part of the compromise.
Ultimately, I am guided by the principle that a settlement for a person under a disability should be protective. In the case of Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296, Mortimer J said:
“[...] I take that to mean protective not only in 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.”
I am satisfied that the compromise set out in the settlement deed, including any financial arrangement, does take into account the range that might be awarded by the Courts in similar matters and the relief that the applicant might have been able to secure at hearing if successful, but also allowing for the challenges that she might 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. I have also taken into account the possibility in this jurisdiction that the applicant might have been ordered to pay the respondent’s costs if the matter proceeded to hearing and the application was unsuccessful.
I have also taken into account the stress and mental impact on the applicant that might be occasioned by a contested hearing. The desirability of avoiding any negative impact on the applicant’s health, well-being and educational opportunities is a matter which weighs heavily in this case and in favour of the compromise.
I have considered the content of the opinion from Mr Munt. Although Mr Munt represented the applicant in this proceeding, as counsel, he has a professional detachment from his clients, and his opinion is provided in furtherance of his paramount duty to assist the Court. I am satisfied that Mr Munt’s memorandum represents the opinion of an independent lawyer for the purposes of rule 9.71(2)(c) of the Federal Court Rules 2011 (Cth)[2].
[2] See also Wade v State of Victoria (No.2) [2012] FCA 1080
Mr Munt has helpfully directed the Court to the relevant considerations which have to be taken into account in deciding whether to sanction a compromise under rule 9.70. His memorandum appropriately cites the comments of McGarry J in Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974] 1 All ER 1188:
“Second, there is the important matter of the minors’ benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned.”
Mr Munt’s opinion is detailed, carefully considered, and properly addresses the matters to which the Court is required to have regard in deciding whether to approve the settlement of this proceeding. I note in particular Mr Munt’s observation that the course of this dispute has been long and difficult for the applicant and her mother. Mr Munt cites five reasons why he considers the settlement to be in the interests of the first applicant. He expresses the opinion that the settlement will enhance the first applicant’s education by empowering her attendance at school. He expresses a view about the way the settlement has been tailored to meet the child’s needs, and that it makes appropriate allowance for the possibilities of changed circumstances.
The settlement affords an opportunity to the child to access a broader range of educational options. Mr Munt has also addressed the ongoing financial and emotional costs of the litigation, including the legal costs and loss of wages for the litigation guardian. He properly acknowledges the risks associated with ongoing litigation, the delays in obtaining a hearing and judgment, and he expresses a realistic assessment of the applicant’s prospects.
DISPOSITION
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, which is reflected in the terms of the settlement deed annexed to Ms O’Hagan’s affidavit. I therefore approve the settlement, and I will also agree to the other orders sought by the applicant and agreed to by the respondent.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Forbes. Associate:
Dated: 9 December 2024
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