HM v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

Background 6 HM is a ten year old boy, with quite severe disabilities, the nature of which were not disputed by the parties and the details of which need not be published. 7 HM's disability affects his communications and his education profoundly. He lives with his parents and a sibling in a regional area of New South Wales. HM's uncle acts as his litigation representative. 8 The proceeding the direct subject of the settlement concerns allegations of unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (DD Act). In particular, the applicant claims a contravention of ss 5 and 22 of the DD Act relating to the respondent's refusal to enrol him at a particular school and other discrimination which is alleged to have taken place during the period June or July 2016 and December 2016 or January 2017. 9 Through his representative, HM has lodged a second complaint with the Australian Human Rights Commission against the respondent concerning other alleged conduct and discrimination. The issues arising in this second complaint overlap with the issues in the present proceeding. 10 The parties engaged in a Court-ordered mediation on 27 February 2018. They agreed to resolve not only the present proceeding but also the matters the subject of the second complaint. The parties ultimately signed a Deed of Release dated 19 March 2018. The Deed has been signed not only by the parties to the proceeding but also by HM's parents, in recognition of the breadth of the issues covered at the mediation. 11 As noted above, the Deed of Release reflects an agreement reached between the parties in relation to all issues which were the subject of the mediation, and not only the issues in the present proceeding. 12 The Deed of Release contains a confidentiality clause. 13 The Court has reviewed an opinion dated 21 March 2018 by Ms Brenda Tronson of counsel. The opinion sets out in some detail why Ms Tronson considers that the agreement set out in the Deed is "an excellent outcome". I accept that assessment by reference to the reasons which are set out at some length in Ms Tronson's opinion. In my view, Ms Tronson's opinion is that of an independent lawyer within the meaning of r 9.71(2)(c) in the sense that the opinion has been provided in discharge of Ms Tronson's duty to assist the Court. 14 I have also taken into account a letter dated 22 March 2018 which is signed by both of HM's parents. The mother is described as an Accountant and Financial Controller. Both parents state that if they are appointed trustees in respect of the funds to be paid into a trust account established by them for the benefit of HM, they "intend to always act in our son's future best interests, safety, health, well-being and benefit". The parents have set out in the letter various matters relating to their son's welfare upon which the funds could be spent. 15 After giving careful consideration to the affidavit of the applicant's instructing solicitor (Ms Claire Pirie), the contents of the Deed of Release, the parents' letter and Ms Tronson's opinion, I am satisfied that the settlement should be approved on the basis that it is in HM's best interests. I note that the parties have agreed costs in the Deed of Release, thus no order needs to be made by the Court on that matter. 16 I am also satisfied that the due administration of justice would be prejudiced if Ms Pirie's affidavit and its annexures (which include Ms Tronson's opinion and the parents' letter) are published. It is appropriate to make an order for non-publication under s 37AF of the Federal Court of Australia Act 1976 (Cth), by reference to the ground set out in s 37AG(1)(a) of that Act in respect of those materials.

Conclusion 17 For these reasons, orders will be made substantially in the terms sought in the interlocutory application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.