Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA

1. Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in annexure SWC-3 of the affidavit of Shaun William Conlin affirmed on 17 October 2022 is approved.
2. The proceeding is dismissed.
3. All extant costs orders are vacated.
4. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 In 2015 the applicant, Michelle Rowe, suffered a stroke resulting in cognitive disability. The Public Trustee of Western Australia has been appointed as the litigation representative for Ms Rowe in these proceedings. The Public Trustee has applied for the Court's approval of a settlement of these proceedings which is documented in a Deed of Settlement and Release made with the respondent, Garry Barton. 2 Rule 9.70 of the Federal Court Rules 2011 (Cth) provides, relevantly, that where a litigation representative agrees to a settlement of any matter in dispute in a proceeding, that representative must apply to the Court for approval of the agreement. Rule 9.71 governs how such an application must be made, and in accordance with r 9.71(2), the interlocutory application filed by the Public Trustee on 8 September 2022 was accompanied by: (a) an affidavit affirmed by the applicant's solicitor, Daniel Clarke, on 7 September 2022; (b) a copy of the Deed of Settlement and Release as annexure DEC-3 to Mr Clarke's affidavit; and (c) the written opinion of counsel, Verity Long-Droppert, to the effect that the agreement reflected in the deed is reasonable and in the best interests of Ms Rowe (annexure DEC-4 to Mr Clarke's affidavit). 3 At the hearing today, however, counsel for the applicant handed up a further affidavit of Shaun William Conlin, who is a member of the staff of the Public Trustee, who affirmed the affidavit today, 17 October 2022. Mr Conlin's affidavit essentially replicates the contents of Mr Clarke's affidavit but has been provided so that there is direct evidence from the litigation representative itself. 4 The opinion of Ms Long-Droppert as counsel, as well as Mr Clarke's affidavit and Mr Conlin's affidavit, set out the facts material to the application for approval of a compromise. Essentially, Ms Rowe claims that a failure by Mr Barton to make superannuation contributions while he was her employer meant that she lost the benefit of income protection and total and permanent disablement insurance policies which, she alleges, would have paid benefits upon the incident which has led to her disability. 5 Materially, Mr Conlin's affidavit indicates that the parties have agreed to reach a settlement on terms that each will walk away bearing their own costs. Effectively, the affidavit says that despite what may be the merits of Mr Rowe's claim, both the passage of time and a change in the respondent's business structure have raised difficulties in recovery of compensation, even if Ms Rowe's claim were to be accepted by the Court. 6 Mr Conlin's affidavit also confirms that on the basis of Ms Long-Droppert's opinion, the Public Trustee wishes to have Ms Rowe's interests in the action compromised in accordance with the orders sought in the application and that the Public Trustee is satisfied that her interests will be best served by that outcome. 7 Rule 9.71(2)(c) requires the application to be accompanied by an opinion of 'an independent lawyer'. It appears that while Ms Long-Droppert is of the independent bar and was briefed to provide the opinion, she has also had a previous association with the matter having acted at the mediation which has led to the settlement. It may be, therefore, that she does not satisfy the requirement in r 9.71(2)(c). However, there is authority to indicate that if an opinion is prepared by the lawyer in furtherance of the lawyer's duty to assist the Court, and not in furtherance of any duty to a party in the proceeding, then it may fulfil the requirement for an 'independent lawyer's' opinion: Wade v State of Victoria (Department of Education and Early Childhood Development) (No 2) [2012] FCA 1080 at [9] (Bromberg J); see also Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041 at [9] (Tracey J); Lewis v State of Victoria (Department of Education and Training) [2019] FCA 714 at [14] (Kenny J). Given Ms Long-Droppert's status as a member of the independent bar, and given that her opinion shows that she was cognisant of her obligations to arrive at and express the opinion in an independent manner, I am satisfied that the opinion she has provided complies with the requirement of the rule. Had there been any doubt about that, I would have been prepared in any event to dispense with that requirement under r 1.34 of the Federal Court Rules. 8 Turning to the merits of the application for approval of the compromise, the Court has a responsibility to determine for itself whether the settlement is beneficial to the interests of the person under the disability: Scandolera v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [26]-[27] (Mortimer J); Young v State of Victoria (Department of Education and Training) [2018] FCA 1124 at [11] (Bromberg J). The Court should be concerned only with the benefit of the disabled person: Gillespie v Alperstein [1964] VR 749; Modra at [12]; Young at [11]. 9 In order to assess the benefit to the applicant, the Court may consider: the circumstances relevant to the proceeding, including what may be secured at trial; the vicissitudes of litigation; the advantages of securing a reasonable compromise that may avoid financial burden and risk of litigation; and any pressure upon an applicant and their family: Young at [12]. 10 In forming its opinion, noting the difficulty the Court may face in assessing the appropriateness of a settlement in a proceeding which is yet to be tried, the Court may also give weight to the opinions of the applicant's legal advisers: Wade at [6]; Modra at [12];Young at [12]. 11 Ms Long-Droppert's opinion supports the settlement in the terms proposed. It sets out in general terms the content of the brief provided to her and the factual background to the claim. It canvasses Ms Rowe's prospects of success in litigation, other issues personal to Ms Rowe, Mr Barton's capacity to satisfy any judgment debt if Ms Rowe were to be successful, and costs of the litigation, including the potential adverse costs orders. 12 While it is not necessary to go into detail I do consider, with respect, that Ms Long-Droppert's conclusion in relation to one aspect of the merits of the claim is open to doubt. However, that issue is subsumed in her further conclusion that it is unlikely that there would be any recovery from Mr Barton even if the claim is successful. That view is also confirmed in Mr Conlin's affidavit. The ultimate conclusion that the settlement is fair and reasonable and in the best interests of Ms Rowe appears to be correct. 13 Given Ms Long-Droppert's opinion and the Public Trustee's support for the settlement, and having considered the Deed of Settlement and Release, I conclude that the settlement should be approved as it is in the best interests of Ms Rowe. 14 Ms Rowe did seek confidentiality orders suppressing Ms Long-Droppert's legal opinion, however, it was made clear at the hearing that those orders were only sought in the event that the Court did not approve the final settlement. Given that the Court is going to approve the settlement, there is no need to make confidentiality orders in relation to the opinion. Subject to that, orders will be made largely in terms of the interlocutory application. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.