Benetti v State of Victoria

1. On or before 2 March 2017, the parties file proposed consent orders to give effect to the Court's reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 Rule 9.70 of the Federal Court Rules 2011 (Cth) ("the Rules") provides that where a litigation representative agrees to a settlement of any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement. If the Court approves the agreement, the agreement then becomes binding on the person for whom it was made. 2 Keryn Carmichael ("Ms Carmichael") is the litigation representative as well as the mother of the applicant Emma Benetti ("Emma"). Ms Carmichael has applied for the Court's approval of the settlement of this proceeding ("the settlement") recorded in a Deed of Release ("Deed") made with the respondent ("State of Victoria" or "State"). For the reasons that follow, I have determined that the Court should approve the settlement. 3 Emma is currently 8 years of age and is a minor and a person under a legal incapacity within the meaning of r 9.61 of the Rules. Emma alleges that she suffers from autism spectrum disorder which is a "disability" for the purposes of the Disability Discrimination Act 1992 (Cth) ("DDA"). Emma attended two primary schools operated by the State of Victoria in the period January 2013 to November 2015 ("relevant period"). Emma alleges that during that period she was the subject of discrimination by the respondent on the ground of her disability. In broad terms, Emma claims that she was the subject of unlawful discrimination of a direct nature (as defined in s 5 of the DDA) to assert a contravention of either s 22(2)(a) or (c) of the DDA. She alleges that because of her disability the State of Victoria treated her less favourably than it would treat a person without her disability in circumstances that are not materially different by: (1) suspending Emma from school for various periods in the relevant period; (2) excluding Emma from the classroom for 50% or more of the time during the relevant period; (3) constructively expelling Emma from school during the fourth term of 2013. 4 Additionally Emma claims that the State failed to make reasonable adjustments for Emma that had the effect that, because of Emma's disability, she was treated less favourably than a person without her disability would be treated in circumstances that are not materially different. In that respect, Emma claims that the State: (1) failed to establish and provide a "student support group"; and (2) failed to provide a "Functional Behaviour Assessment". 5 The State generally denies any liability for discriminatory conduct. The State alleges that it provided support for Emma and her teachers and provided Emma with individual education and learning plans, classroom programs, one-to-one support with an integration aide, behaviour plans, and regular communication and consultation with her parents. It claims to have provided Emma with staff who were experienced in educating children with autism, as well as consultation with a psychologist, speech therapist and occupational therapist. The State claims to have modified Emma's curriculum, provided school based strategies and carried out a functional behaviour assessment. 6 On 28 September 2016, and after a mediation conducted over some three days, the parties agreed to and made the Deed. Subject to the approval sought by this application, the Deed provides for the settlement of this proceeding. 7 In an affidavit in support of the application made by Emma's solicitor, the terms of the Deed together with an opinion of D J Hancock, barrister, are exhibited. That affidavit deposes that Mr Hancock was briefed to provide an independent legal opinion as to whether the settlement reached is in the best interests of Emma. The affidavit includes the opinion of the solicitor that the settlement reached is in the best interests of Emma. The Court is requested to treat the affidavit and its exhibits as confidential. The Deed has a provision requiring that its terms be kept confidential. 8 In determining whether or not to approve the settlement, I must be satisfied that the settlement is beneficial to Emma's interests: Scandolera v State of Victoria [2015] FCA 1451 at [26]-[27] (Mortimer J). To do that, I need to weigh the benefits to Emma under the settlement against what she may secure at trial. I must also weigh into the balance the vicissitudes of litigation and the advantages to a litigant of securing through a settlement a reasonable compromise which might avoid the financial burdens and potential risks of litigation, as well as the pressures upon an applicant and his or her family that the litigation will likely entail. There are both tangible and intangible benefits to an applicant in arriving at a reasonable compromise of his or her proceeding and those matters need to be taken into account when the Court assesses whether a settlement is beneficial to the interests of the applicant. As I stated in Wade v State of Victoria (No 2) [2012] FCA 1080 at [6], the task faced by the Court will usually be difficult and heavily reliant upon the opinion provided by an independent lawyer as required by r 9.71(2)(c) of the Rules. 9 A question arises as to whether I should accept the opinion of Mr Hancock as an "opinion of an independent lawyer" for the purposes of r 9.71(2)(c), in circumstances where Mr Hancock had been briefed to act for Emma in the proceeding. In Wade, at [7]-[9] I construed the reference to an "independent lawyer" in r 9.71(2)(c) as not excluding a lawyer who may have had a prior association with the proceeding but whose opinion was provided in furtherance of that lawyer's duty to assist the Court and not in furtherance of any duty the lawyer may have to a party in the proceeding. I noted that in many cases the substantial additional costs involved in obtaining the opinion of a lawyer with no prior knowledge or familiarity with the proceeding may be prohibitive. I observed that the Court has a capacity to dispense with the requirement of r 9.71(2)(c). In that case, I determined that if it were the case that r 9.71(2)(c) required that an opinion be provided by a lawyer who had no prior association with the proceeding, I would dispense with the requirement made by that rule. Wade has since been followed in Modra v Victoria [2013] FCA 1041 at [9] (Tracey J), Hickey v Public Advocate (Victoria) [2012] FCA 1203 at [10]-[11] (Gray J) and Koenders v Victoria [2016] FCA 842 (Davies J). 10 I have been asked to follow the same course here as that which I adopted in Wade. I propose to do so, including (if it be necessary) by dispensing with the requirement of r 9.71(2)(c), because the time and expense involved in obtaining an opinion from a barrister with no prior knowledge of the case is, in relative terms, likely to be prohibitive and, on balance, disadvantageous to Emma's interests. 11 Mr Hancock has prepared a detailed advice in which he has canvassed both the prospects of Emma's success and the range of compensation that may be awarded should she succeed at trial. He has done that including by an examination of awards of compensation made in similar cases. Mr Hancock has also taken into account the vicissitudes of litigation and the risks of exposure of Ms Carmichael to costs. He has taken into account Emma's current situation, each of the components of the settlement and assessed the benefit to Emma of each component. He has concluded that the settlement is fair and reasonable and that acceptance of it is in Emma's best interests, including in consideration of Emma's ongoing needs for the future. 12 The comprehensive reasoned opinion of Mr Hancock, together with my own consideration of the pleadings and the terms of the Deed, persuade me that I should be satisfied that the settlement is in Emma's best interests and accordingly I am satisfied that the settlement should be approved. The parties have indicated they will provide proposed orders by consent to reflect these reasons and I will make orders requiring that that be done. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.