Allen v State of Victoria

1. Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), the requirement for which r 9.71(2)(c) thereof provides is, hereby and for the purposes of the applicant's interlocutory application dated 25 June 2019, dispensed with.
2. Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the agreement made in settlement of this matter - and attached and marked as annexure "MC1" to the affidavit sworn herein by Maria Civisic on 25 June 2019 - is approved.
3. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - and on the ground identified in s 37AG(1)(a) thereof, namely that it is necessary to prevent prejudice to the proper administration of justice - the affidavit sworn herein by Maria Civisic on 25 June 2019, together with annexures MC1 and MC2 thereto, are not to be published or disclosed, except in accordance with an order of a Justice of this court.
4. The affidavit sworn herein by Maria Civisic on 25 June 2019, and annexures MC1 and MC2 thereto, are to be placed in a sealed envelope marked "not to be opened without the permission of a justice of this court".
5. The costs of and associated with the applicant's interlocutory application dated 25 June 2019 be costs in the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 The court is asked to approve an agreement that has been reached in settlement of these proceedings. That agreement has been struck as between the applicant's mother, Ms Allen (in her capacity as his litigation representative), and the respondent. In order that it might take effect, it must first be approved by the court: Federal Court Rules 2011 (hereafter, "the Rules"), r 9.70. Ms Allen applies for that approval under r 9.71 of the Rules. 2 In support of that application, Ms Allen has led evidence in the form of an affidavit sworn by the applicant's solicitor, Ms Maria Civisic, on 25 June 2019. To that affidavit is attached a written opinion authored by a barrister, Mr Hancock, which Ms Civisic describes as "independent legal advice" that the settlement (the terms of which are also in evidence) "is in the best interests of the [a]pplicant". 3 It is apparent that that opinion is advanced in compliance with r 9.71(2)(c) of the Rules. That rule requires that an application by a litigation representative for approval of a settlement agreement be accompanied by "…an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity." 4 There is a question as to whether Mr Hancock qualifies as an "independent lawyer" for the purposes of r 9.71(2)(c) of the Rules. He has previously been retained by the applicant's solicitors to act on the applicant's behalf; or, at the very least, to draft the pleadings upon which his suit proceeds. Mr Hancock does not state as much in the opinion that was provided in satisfaction of the requirement to which r 9.71(2)(c) of the Rules gives effect - nor does Ms Civisic in her affidavit - but it is readily apparent from the pleadings, original and amended. 5 There is authority for the proposition that a lawyer, although retained to act for one of the parties, might nonetheless qualify as "independent" for the purposes of r 9.71(2)(c) of the Rules. In Wade v State of Victoria (No 2) [2012] FCA 1080 (Bromberg J), the court had occasion to consider the intent that animates the rule. Prior to 2011, the equivalent rule did not require provision of an opinion from a lawyer. Nonetheless, there was a long-standing practice in the court that approval would not be granted unless the court received a lawyer's opinion that stated that approval was in the applicant's best interests. Typically, that opinion was provided by a lawyer for the party in respect of whom a litigation representative had been appointed. Bromberg J was of the view that the new rule was not intended to alter that practice. His Honour held (at [9]) that: …what the rule intends is that the opinion prepared by the lawyer be provided in furtherance of the lawyer's duty to assist the Court and not in furtherance of any duty the lawyer may have to a party in the proceeding. In my view, it is in that respect that the lawyer must be "independent". 6 His Honour's judgment has been followed subsequently: Lewis v State of Victoria (Department of Education and Training) [2019] FCA 714, [13]-[14] (Kenny J); Biasin v State of Victoria [2017] FCA 161, [15]-[16] (Kenny J); Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842, [3] (Davies J); Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041, [9] (Tracey J); Hickey v Public Advocate (Victoria) [2012] FCA 1203, [10]-[11] (Gray J). 7 In Jones v Victoria (2014) 145 ALD 619 ("Jones", North J), the court took a different view. North J there held (at 620 [4]): It is difficult to give the word "independent" any other meaning than to indicate a lawyer who was not previously involved in the case. If it simply meant any lawyer, there would be no need to use the word "independent". His Honour subsequently dispensed with the requirement for which r 9.71(2)(c) of the Rules provides and proceeded to approve the agreement in that case. 8 With respect to those who favour the alternative view, I agree with the observation that North J expressed in Jones. I cannot conceive of a circumstance in which a lawyer with previous involvement in a case might properly qualify as "independent" for the purposes of r 9.71(2)(c) of the Rules. "Independent" must, in context, mean independent of the parties to the litigation. Were it otherwise, the opinion of counsel for a respondent that a settlement was in the best interests of the applicant that he or she was retained to defeat might qualify. That cannot be so. Mr Hancock, although independent in the sense that all barristers are, is not independent in the sense that r 9.71(2)(c) of the Rules requires. All the more must that be so in the case of settlement agreements that contain provisions relating to the payment of the parties' legal costs, as agreements of that kind often do. 9 Nonetheless, I am not minded, in the present circumstances, to let Mr Hancock's want of independence stand as an obstruction to the settlement that has been reached. Just as North J did in Jones, I consider that there are strong, practical reasons why I should act upon the opinion that Mr Hancock has provided. To require that the applicant engage another lawyer to cover the same ground that Mr Hancock has covered - and, in the process, to review and come up to speed on what, no doubt, is a not insubstantial volume of evidence and instruction - would seem unduly wasteful and expensive, particularly given the relatively small scale of the litigation at hand. Additionally, Mr Hancock's written opinion is comprehensive and expressed with a clarity that inspires confidence in its conclusion. 10 For that reason, I shall dispense with the requirement for which r. 9.71(2)(c) of the Rules provides. In my opinion, the settlement that has been reached should be approved. I turn to consider the reasons why that is so. 11 In Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041 (Tracey J), this court identified the approach to be taken in considering whether to approve a settlement under r 9.70 of the Rules. At [12], Tracey J stated: In determining whether to sanction a compromise under Rule 9.70(1) of the Rules the Court is concerned only with the benefit of the disabled person: see Gillespie v Alperstein [1964] VR 749. In forming the necessary judgment significant weight will be given to the opinions of the applicant's legal advisers. In Re Barbour's Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191, Megarry J, speaking of an application made on behalf of a minor, said that: "…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." 12 The Court is not bound to accept opinions expressed by a party's adviser. It must determine for itself whether a settlement advanced for the court's approval is in the interests of the party (or parties) by whose litigation representative (or representatives) it was struck: Scandolera v Victoria (2015) 331 ALR 525, 530-531 [26]-[27] (Mortimer J). 13 The applicant is a 14-year-old boy. He suffers from a range of disabilities, the nature and extent of which I need not note. At least between May 2012 and May 2015, he was enrolled at a school administered by the respondent. During that period, he claims to have been subjected to various forms of discrimination in contravention of s 22(2)(a) of the Disability Discrimination Act 1992 (Cth). In particular, he claims that, on account of his disabilities, the respondent limited and/or denied, and proposed to limit and/or deny, his access to certain benefits, specifically "a safe learning environment", "access to the curriculum" and "specialised support designed to assist a student to achieve his or her educational and developmental potential through the engagement of professional and targeted services contracted by the [r]espondent". Additionally, the applicant claims to have been subjected (in contravention of s 22(2)(c) of the Disability Discrimination Act 1992 (Cth)) to detriments in the form of physical restraint, seclusion and isolation; again, he says, on account of his disabilities. 14 The applicant says that he was subjected to discriminatory outcomes in both a direct and indirect sense. Many of the instances of alleged direct discrimination manifest, so he claims, in the non-provision by the respondent of "reasonable adjustments". In (perhaps overly) narrow compass, the applicant says that his disabilities were such that he required certain accommodations, which the respondent unreasonably did not afford him (and the absence of which visited detrimental consequences upon him). 15 The discriminatory outcomes to which the applicant says that he was subjected were, he claims, harmful insofar as he was subjected to physical restraint, seclusion and isolation, and was afforded limited or no access to services that the respondent ought to have provided. 16 The respondent denies that it subjected the applicant to discrimination in breach of the Disability Discrimination Act 1992 (Cth). It denies, at the factual level, the restraint and seclusion that is alleged, and maintains that it appropriately supported the applicant during his enrolment. It also makes a number of points about the applicant's amended statement of claim, including that it fails (in part) to disclose a cause of action and is (in other respects) inadequately pleaded. 17 In his written opinion, Mr Hancock analyses the respective positions of the parties and the risks that attach to them, both factual and legal. Appropriate regard is given to the uncertainty inherent in all litigation, and the emotional burden that might be wrought upon the applicant and his mother by exposure to both that process and to the consequences of failure, were that to eventuate. The opinion considers what the applicant might expect to receive by way of relief if the application were to succeed. The opinion canvasses all of the matters upon which, in my view, an assessment of the applicant's best interests properly rests. It paints a compelling picture that what has been agreed is a good outcome for him. 18 I have no hesitation in approving the settlement. Ancillary orders are sought in order to maintain the confidentiality of what has been agreed. Such orders are routinely made in cases such as this and I consider that they are appropriate here, too. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.