De Kauwe as litigation representative of Joshua de Kauwe v State of Victoria

1. Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) the requirements of r 9.71(2)(c) be dispensed with: assuming that provision requires an opinion from a lawyer not already retained by the Applicant.
2. The agreement that Ms Karrina De Kauwe, as litigation representative of the Applicant, has entered into with the Respondent is approved.
3. The affidavit of Mr Michael James Bates in support of the Applicant's application for approval of the compromise of his proceedings affirmed on 15 September 2020 including the attachments thereto not be permitted to be inspected by or made available to a third party unless a judge of this Court otherwise orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 Ms Karrina De Kauwe acts in proceedings VID1319/2017 and VID1332/2018 as litigation representative of Mr Joshua De Kauwe, a legal infant. She has applied, by way of an interlocutory application, for an order approving an agreement into which she has (subject to that application being granted) entered with the Respondent to compromise both proceedings. 2 In these proceedings Mr De Kauwe claims (in short summary) that the Respondent has discriminated against him in its provision of educational services to him on the basis of his disability. His pleaded disability is severe autism spectrum disorder. He claims also that the Respondent has victimised him. 3 Ms De Kauwe's application has been brought in the teeth of the hearing of proceeding VID1319/2017, which was to have an estimated duration of three weeks. 4 Filed with Ms De Kauwe's application is an affidavit of Mr Michael James Bates, dated 15 September 2020. Mr Bates is a principal solicitor with Berrill & Watson Lawyers, who have acted for the Applicant since March 2019. As attachments to his affidavit Mr Bates includes a copy of the agreement for which approval is sought, and a letter setting out the facts material to the decision of the Applicant's litigation representative to accept the offer. In that letter he states his professional opinion that the offer is, on balance, in Mr De Kauwe's best interests. 5 Rule 9.71 of the Federal Court Rules 2011 (Cth) (Rules) requires that an application by a litigation representative for approval of a compromise be accompanied by, inter-alia, an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity. 6 Mr Bates does not purport to be an independent lawyer, in the sense of a lawyer who is not already retained by Mr De Kauwe. However, his letter facially grapples fully and in a common-sense way with the legal and practical considerations relevant to whether or not the compromise proposed is fit to be entered into. 7 There is reason to doubt whether formal structural independence in the provision of such an opinion is a requirement of the Rules: see Wade v Victoria (No 2) [2012] FCA 1080, but see also Jones v Victoria [2014] FCA 1404; 145 ALD 619. 8 However, I note that the pleadings were not originally drafted by either Mr Bates or Berrill & Watson Lawyers (as might have suggested a want of dispassion). More generally, there is nothing to suggest that Mr Bates has brought anything other than his best impartial judgment to the question about which he has opined in the letter provided. I am therefore satisfied that even assuming that r 9.71 requires that the opinion be provided by a lawyer not already retained on behalf of the person under legal incapacity I would be entitled, and ought, to dispense with that requirement pursuant to r 1.34. Out of abundance of caution, I will do so. 9 In my view, there is nothing to suggest that Mr Bates' opinion as to the reasonableness of the proposed compromise is to be doubted. My own experience of case managing these proceedings towards trial over a period of more than a year (which, inter-alia, required me to give attention to the witness statements) has involved nothing as would suggest the contrary. 10 I am satisfied, subject to what follows, that I ought to approve the application as advanced. 11 A term of the proposed compromise provided for in the agreed deed of settlement is that the Applicant's litigation representative will seek orders that the deed and any documents filed in support be placed in a sealed envelope marked "Not to be opened without permission of a Justice of this Court'. That has been done. 12 The Federal Court however now has an entirely electronic case management system. For that reason, an order in the precise terms in which it has been sought will be appropriate only in the rarest of instances: if ever. 13 That recognised, the substance of what is sought can be accommodated. It is open to the Court to order that Mr Bates' affidavit and its annexures (which comprehend the relevant documents) as have been filed not be inspected by or made available to a third party unless a judge of the Court otherwise orders. 14 I am satisfied that I am entitled to make such an order. The protection of the terms of an agreement for the compromise of an action where the Rules require disclosure in the instance of a person under a legal incapacity is a recognised exception to the more general principles that an affidavit filed and read in a proceeding can be inspected. 15 I will make orders consistent with these reasons. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.