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

Federal Court of Australia|2018-04-20|Before: Tracey J, Griffiths J

The applicant be referred to by the pseudonym "HM".
The settlement between the parties recorded in the Deed of Release dated 19 March 2018 (Annexure CP1 to the affidavit of Claire Pirie affirmed on 27 March 2018 (Pirie Affidavit)) is approved.
Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the Pirie Affidavit and its annexures are not be published or disclosed except in accordance with an order of a Justice of this Court.
The Pirie Affidavit and its annexures are to remain on the Court file in a sealed envelope marked "Confidential - Not to be Opened Except by Direction of a Judge of the Court".
The proceeding be dismissed with no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 By an interlocutory application dated 27 March 2018, the applicant seeks approval of a settlement which has been reached by the parties in a mediation conducted by the Court Registry on 27 February 2018. 2 In accordance with r 9.70(1) of the Federal Court Rules 2011 (Cth) (the 2011 FCRs), if a litigation representative agrees to compromise or settle any matter in dispute in the proceeding, the litigation representative must apply to the Court for approval of the agreement. If the Court approves the agreement, the agreement is binding on the person by or for whom it was made as if that person was not under a legal incapacity. The Court is empowered by r 9.70(3) of the 2011 FCRs to require, as a condition of approval, that any money payable for the benefit of a person under a legal capacity be dealt with by way of a settlement, or in any other way that the Court considers appropriate. 3 Under r 9.71, an application by a litigation representative for approval of an agreement must be made by filing an interlocutory application, which has to be accompanied by the following: (a) an affidavit stating the material facts on which the application relies; (b) the agreement that is sought to be approved; and (c) an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity. 4 In considering whether to approve a settlement agreement, the question is not whether the amount of damages would have been awarded if the matter went to trial, but rather is whether the settlement itself is a reasonable one, and is for the benefit of the person under the relevant legal incapacity, having regard to all the circumstances of the case. Although the Court must consider for itself whether the compromise is in the best interests of the person under the relevant legal incapacity, significant weight will be given to the views of the applicant's legal advisers (see Smith v Marriott Support Services [2013] FCA 312 at [12] per Tracey J). 5 For the reasons which follow, I have determined that the Court should give its approval to the settlement reached.

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.

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