Gislingham v Newhaven College Pty Ltd

1. On or before 19 July 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 John Ratcliff ("Mr Ratcliff") is the litigation representative as well as the uncle of the applicant Jess Gislingham ("Jess"). Mr Ratcliff has applied for the Court's approval of the settlement of these proceedings ("the settlement") recorded in a Settlement Agreement ("Agreement") made with the respondent ("Newhaven College"). For the reasons that follow, I have determined that the Court should approve the settlement. 3 Jess is currently 15 years of age and is a minor and a person under a legal incapacity for the purposes of r 9.61 of the Rules. Jess alleges that he suffers from the following disabilities each of which are alleged to fall within the definition of "disability" for the purposes of the Disability Discrimination Act 1992 (Cth) ("DDA"): (a) Down Syndrome (intellectual disability); (b) auditory short-term/working memory delay; (c) expressive language impairment; (d) behaviours of concern, being a symptom or manifestation of his disabilities ("Jess's disabilities"). 4 Jess attended Newhaven College in the period February 2015 to August 2016. Jess alleges that during that period he was the subject of discrimination by Newhaven College on the ground of his disability. 5 In broad terms, Jess claims that he was the subject of unlawful discrimination of a direct nature (as defined in s 5 of the DDA) and of an indirect nature (as defined in s 6 of the DDA). Those allegations of discrimination are relied upon to allege that Newhaven College breached s 22 of the DDA. Additionally, Jess claims that Newhaven College contravened the Competition and Consumer Act 2010 (Cth) ("CCA"). 6 In relation to the alleged contraventions of the DDA, Jess makes seven allegations. The first is that in refusing Jess full-time enrolment and attendance at Newhaven College, Jess alleges that Newhaven College breached s 22(2)(a) of the DDA. The second and third allegations made relate to Newhaven College suspending Jess in the middle of 2016 and later expelling him in August 2016. Jess alleges that this constituted direct discrimination and a contravention of ss 22(2)(a) and 22(2)(c) of the DDA. Jess' fourth allegation is that he was subjected to direct discrimination when a particular assessment was forced upon him. That is said to be a contravention of ss 22(2)(a) and (c) of the DDA. By his fifth and sixth allegations, Jess alleges that certain reasonable adjustments were required to enable him to access the curriculum provided by Newhaven College. The failure to provide those adjustments is alleged to constitute direct discrimination of Jess by Newhaven College in breach of s 22(2)(a) and (c) of the DDA. By his seventh allegation, Jess alleges that he was subjected to indirect discrimination by being required to adhere to Newhaven College's behaviour management policies. That alleged discrimination is said to constitute a contravention of s 22(2)(a) of the DDA. Jess' associated claim under the CCA is based on an allegation that the education services provided to him were not rendered with due care and skill and that various representations made to him by Newhaven College were false or misleading. In that respect, Jess claims damages pursuant to s 236 of Schedule 2 of the CCA and compensation under s 267 of Schedule 2 of the CCA. 7 Newhaven College generally denies any liability for discriminatory conduct. In relation to Jess' first allegation, Newhaven College pleads that Jess was enrolled as a part-time student by his parents, at their election. In relation to the second and third allegations, Newhaven College admits that it suspended and expelled Jess but denies that the conduct constituted direct discrimination. In relation to the fourth allegation, Newhaven College denies that the assessment required of Jess constituted direct discrimination. 8 Newhaven College concedes that the various education plans that Jess alleges were necessary for him to access the curriculum were necessary. However, Newhaven College asserts that those plans were provided to Jess and denies Jess' claim of direct discrimination. In relation to the seventh allegation of indirect discrimination, Newhaven College denies that it required Jess to comply with any requirement or condition that he adhere to a behaviour management policy. Lastly, Newhaven College denies in relation to the claims made pursuant to the CCA that it failed to render services with due care and skill and that any false or misleading representations were made. 9 On 5 April 2017, and after a mediation conducted over that day, the parties agreed to and made the Agreement. Subject to the approval sought by this application, the Agreement provides for the settlement of these proceedings. 10 By an affidavit prepared by Jess' solicitor, the terms of the Agreement together with an opinion of D J Hancock of counsel were tendered. The affidavit deposes that Mr Hancock was briefed to provide independent legal advice as to whether the settlement reached is in the best interests of Jess. The affidavit includes the opinion of its deponent that the settlement reached is in the best interests of Jess. The Court was requested to treat the affidavit and its exhibits as confidential. The Agreement contains a provision requiring that its terms be kept confidential. 11 In determining whether or not to approve the settlement, I must be satisfied that the settlement is beneficial to Jess' interests: Scandolera v State of Victoria [2015] FCA 1451 at [26]-[27] (Mortimer J). To do that, I need to weigh the benefits to Jess under the settlement against what he 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. 12 The opinion prepared by Mr Hancock is detailed and appears to be well reasoned. The opinion canvasses each of the allegations made by Jess and the response of Newhaven College. The opinion includes Mr Hancock's assessment of the strength of Jess' case and the likelihood of its success. Mr Hancock has also reviewed awards of compensation made in similar cases. He has taken into account the vicissitudes of litigation and the risks of exposure of Mr Ratcliff to costs should he be required to pay costs. Mr Hancock has taken into account each of the components of the settlement and assessed the benefit to Jess of each such component. He has concluded that the offer made by Newhaven College is fair and reasonable and that acceptance of it is in Jess' best interests both in the context of the litigation and also in relation to Jess' ongoing needs for the future including the provision of certainty for Jess and his family. 13 The comprehensively reasoned opinion of Mr Hancock, together with my own consideration of the pleadings and the terms of the Agreement, persuade me that I should be satisfied that the settlement is in Jess' best interests. Accordingly, I am satisfied that the settlement should be approved. I will make an order giving the parties the opportunity to provide proposed orders by consent to reflect these reasons and the terms of the Agreement. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.