Jones v State of Victoria

REASONS FOR JUDGMENT 1 Before the Court is an application by the litigation representative of the applicant pursuant to r 9.71 of the Federal Court Rules 2011 (Cth) for approval of a settlement of the proceedings. 2 In support of the application, the litigation representative, the mother of the applicant, has filed a written opinion pursuant to r 9.71(2). The opinion was provided by Mr Herman Borenstein QC and is dated 17 November 2014. Mr Borenstein has been engaged as counsel for the applicant since the inception of the proceeding. A question arose as to whether, in that capacity, he was an independent lawyer in the terms of r 9.71(2)(c). 3 There is authority which indicates that a lawyer, although engaged in the case, may nonetheless be independent in the terms of the rule. In Wade v State of Victoria (No 2) [2012] FCA 1080 at [9] Bromberg J considered that it was unlikely that the version of the rule introduced in 2011, which added the description "independent", was meant to change the previous consistent practice that a lawyer who was already engaged in the case could provide the relevant advice. Other cases have followed that judgment (see Hickey v Public Advocate (Victoria) [2012] FCA 1203 and Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041.) However, in each of these cases, the Court was prepared to waive the requirement for an independent lawyer if the rule would otherwise exclude the particular lawyer. 4 It is difficult to give the word "independent" any other meaning than to indicate a lawyer who was not previously involved in the case. If it simply meant any lawyer, there would be no need to use the word "independent". However, in most cases, including the present, there is a strong practical reason for the existing lawyer to provide the relevant advice. In the present case, the pleadings were closed and the case was ready for trial. Indeed, a trial date had been fixed when the matter settled. In these circumstances, to require the applicant to engage another lawyer to cover the same ground would seem wasteful. In the present case, the Court's confidence is borne out by the comprehensiveness and clarity of the advice provided by Mr Borenstein. 5 Thus, if Mr Borenstein does not fall within the description of an independent lawyer as used in r 9.71(2)(c), then in light of the practical and financial difficulties of engaging counsel not previously involved in the proceedings, I would dispense with the requirement in the rule for an independent lawyer. 6 The applicant alleged both direct and indirect discrimination by the respondent in contravention of the Disability Discrimination Act 1992 (Cth) (the Act). The respondent is the provider of educational services, and the applicant was a student from 2000 to August 2010 at schools run by the respondent. 7 The applicant alleged that he had a number of disabilities during his school years including language disorder/delay with borderline average receptive language skills and moderate difficulties with expressive language, developmental delay, borderline IQ, oppositional defiant disorder, attention deficit hyperactivity disorder, specific learning disability, namely, dyslexia, and fine motor skills delay. 8 The applicant alleged that these disabilities, together and separately, were disabilities within the meaning of s 4 of the Act. The applicant alleged that these disabilities were diagnosed by the respondent's own experts on numerous occasions in the years 2000 to 2011. He was assessed, for instance, by the Speech Pathology Service in 2000. In 2001, he was assessed by a psychologist. In 2001, 2002 and 2004, the applicant was again assessed by speech pathologists employed by the respondent. In 2006, 2009, 2010 and 2011 he was further assessed by psychologists. 9 An important part of the applicant's case was that the respondent was provided, through these assessments, with a series of recommendations which should have been, but which were not implemented by the respondent. The applicant said that as a result, he fell progressively behind his peers in academic progress. 10 The respondent admitted that some of the disorders referred to were disabilities within the meaning of the Act, but said that others, for example borderline IQ, were not. It denied that the applicant suffered from borderline IQ, oppositional defiant disorder, and attention deficit hyperactivity disorder. 11 The factual response by the respondent to the allegation of discrimination was that the respondent had sought to meet the applicant's needs, in accordance with the recommendations of the experts, by providing him with speech therapy, with one-on-one assistance, with a modified curriculum, and by adjusting teaching methods, by preparing individual learning plans, by meeting with the applicant's mother to discuss the applicant's progress, by allowing the applicant additional time for tasks, by providing him with activities and supervision during recess and lunch time, by placing him in specialised programs such as reading recovery, and by placing him into the active learning program in year 8. 12 The factual contest in this case is demonstrated by the written outlines filed in anticipation of the trial. Those submissions indicate a deep chasm between the two factual cases of the parties. 13 The advice provided by Mr Borenstein carefully analyses the effect of the statutory provisions which govern the case. In particular, there were substantial amendments to the Act effective from 5 August 2009. In general terms, the effect of the amendments was that it would be easier for the applicant's case to succeed on important aspects of the claims following the amendments, but that the amendments only applied to one year of his schooling. 14 There was a further risk to the applicant which arose from the legislation. The applicant alleged that the respondent had failed to comply with the disability standards contained in s 32 of the Act. If the respondent succeeded in showing that it had complied with the standards, the consequence was severe for the applicant. Section 34 of the Act provides that if a person acts in accordance with a disability standard as set out by s 32, the other provisions of Part 2 of the Act, which include discrimination in education, do not apply to that person's acts. Thus, if the respondent could establish that it had complied with the standards, then pursuant to s 34 of the Act, it had no liability for the alleged discrimination under the other sections invoked in this case. Whether the respondent had failed to comply with the disability standards raised the same factual issues in contention between the parties. 15 The respondent raised a number of other defences apart from the dispute on the facts. It raised a limitation defence under the Limitation of Actions Act 1958 (Vic), which is said to apply by s 79 of the Judiciary Act 1903 (Cth), although it is likely that this defence would be answered by the judgment of Dowsett J in Baird v Queensland (2005) 146 FCR 571; [2005] FCA 1516. The respondent also contended that the Act infringes the implied constitutional limitation on the capacity of the State to function as such. 16 Mr Borenstein assessed each of these factors in the advice and concluded that the settlement was appropriate. In particular, he pointed to the centrality of the factual dispute, and the risk to the applicant that the Court might place particular weight on evidence led by the respondents from the teachers in the schools attended by the applicant. Mr Borenstein also adverted to the danger that the respondent may persuade the Court that it had complied to a reasonable standard with the disability standards, and consequently have a defence to all the claims under the Act. 17 Mr Borenstein analysed other risks to the applicant. There were risks to the applicant in establishing that the acts of the respondent caused the damage, and there were issues as to the assessment of the extent of any detriment suffered. The risk in relation to the constitutional argument was that even if the applicant was successful at trial, the respondent may appeal given the nature of the issue. 18 Mr Borenstein also took into account the avoidance of a prolonged trial and the necessary emotional burden which that would impose both on the applicant and his litigation representative. 19 The advice canvasses all relevant matters and provides a compelling assessment that the settlement is a very good outcome for the applicant. 20 Mr Borenstein explained that the entire settlement sum would be paid to the applicant. There would be no deduction for the applicant's legal fees. Mr Borenstein and Ms Therese McCarthy acted as counsel for the applicant and were instructed by Mr Steven Amendola, a partner of Ashurst. They have all provided very significant legal services without charge to the applicant. A special acknowledgment should be made for that generous service to the applicant. 21 In these circumstances, the settlement arrived at between the parties should be approved and there will be an order to that effect. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.