Snell v State of Victoria

Background 6 The applicant was born on 6 January 1999 and is currently 25 years of age. He is alleged to have a number of disabilities within the meaning of s 4 of the DDA, including autism spectrum disorder, fine and gross motor skill delay, attention deficit hyperactivity disorder, and mild intellectual disability, along with severe "behaviours of concern" that are symptoms or manifestations of those disabilities. 7 The applicant was enrolled in the Jackson School in St Albans, Victoria, from around February 2005 to December 2016, when he was aged from six to 17 years old. The Jackson School is a government special school operated by the State. 8 In broad terms, the applicant claims that the State as an "educational authority" discriminated against him on the ground of his disability by denying or limiting his access to a benefit, by expelling him, or by subjecting him to other detriments: see s 22(2) of the DDA. The applicant's claims relate to alleged direct discrimination within the meaning of s 5(1), an alleged failure to make reasonable adjustments within the meaning of s 5(2), and alleged indirect discrimination within the meaning of s 6(1) of the DDA.

Procedural history 9 This proceeding has a protracted procedural history, some of which was set out in the judgment of Kenny J on an earlier interlocutory application: Snell v State of Victoria (Department of Education and Training) [2022] FCA 5; 404 ALR 1. 10 On or about 18 January 2017, a complaint was lodged on behalf of the applicant with the Australian Human Rights Commission under s 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) alleging discrimination by the State against the applicant because of his disabilities when he was a student at the Jackson School between February 2005 and December 2016. The complaint stated that the applicant had required a number of specified supports (namely, a functional behaviour assessment and positive behaviour plan, a comprehensive educational assessment and individual education plan, a functional communication method, and a student support group), and that he had been subjected to physical restraint, isolation or exclusion, suspension and expulsion on the basis of his disabilities and as a result of not receiving the supports. The applicant sought an apology and damages. 11 On 27 September 2017, the complaint was terminated by the Commission on the basis that there was no reasonable prospect of the matter being settled by conciliation. 12 This proceeding was commenced on 16 November 2017 by an originating motion filed by Mr Snell as the applicant's next friend. Mr Snell was subsequently appointed as the applicant's litigation representative by an order made on 9 May 2018. 13 The applicant filed a statement of claim on 6 April 2018, which was subsequently amended on 17 May 2018. A series of pleading disputes between the parties ensued. The proceeding was referred to mediation in late 2020, but did not resolve at that time. The applicant served a number of further iterations of his statement of claim, including to add common law claims for damages. A dispute as to whether the applicant was required by s 28LT of the Wrongs Act 1958 (Vic) to serve a copy of a certificate of assessment obtained under Pt VBA of that Act was determined by Kenny J in favour of the State: see Snell. 14 The applicant has served on the State a "Draft Amended Further Proposed Further Amended Statement of Claim" dated 1 June 2023, a copy of which was annexed to an affidavit of Mr Snell sworn on 13 June 2023. The settlement approval application was made on the basis that this is the most current version of the applicant's statement of claim. 15 The statement of claim is lengthy and detailed. It raises nine primary allegations of discrimination in education, comprising six allegations of direct discrimination and three allegations of indirect discrimination in contravention of ss 5, 6 and 22 of the DDA (as applied by s 12(8)(ba)). (a) The applicant alleges that, during his enrolment in the Jackson School, he was subject to restraint (including physical restraint), isolation and seclusion because of his disabilities and behaviours of concern, and that he was suspended and constructively expelled for the same reasons. Detailed particulars of the alleged incidents are provided. The applicant alleges that this amounted to less favourable treatment on the ground of his disabilities, and that various supports and rights under the State's policies, procedures or guidelines were not provided or afforded to him. The applicant also alleges that the State failed to provide reasonable adjustments, including by failing to engage a certified behavioural analyst or psychologist with qualifications in behaviour analysis to undertake a functional behaviour assessment and behaviour intervention plan, and by failing to provide him with a functional communication method and a comprehensive education assessment and individual education plan. (b) The applicant further alleges that he was required to comply with unreasonable requirements or conditions relating to access to the curriculum with which he could not comply because of his disabilities, and which had the effect of disadvantaging him as, among other things, he was unable to access the curriculum on the same basis as other students. (c) The applicant makes "associated" claims that the State owed a duty of care to students at the Jackson School to ensure that its officers, employees or agents do not physically assault, harm or falsely imprison them, or a duty as an administrator or occupier of the Jackson School to take reasonable care to ensure that students would not be assaulted, harmed or falsely imprisoned. (d) The relief sought by the applicant includes a declaration that the State unlawfully discriminated against him during the relevant period, and damages pursuant to the AHRC Act and the Wrongs Act. 16 The State has not yet filed a defence to any statement of claim filed or served by the applicant. 17 In December 2022, the applicant along with 15 other claimants commenced a proceeding against the State in the Victorian Civil and Administrative Tribunal regarding his schooling and his treatment regarding an investigation into a number of special schools in Victoria under the Equal Opportunities Act 2010 (Vic) (VCAT proceeding).

Settlement of the proceeding 18 Following a further referral to mediation, the parties reached agreement to settle the proceeding. A Deed of Release was executed by the parties on 16 May 2024. 19 The settlement approval application was filed on 24 May 2024, supported by an affidavit sworn by Mr Snell on 22 May 2024. The affidavit annexed a copy of the Deed, together with a legal opinion provided by Mr David Hancock of counsel (the Legal Opinion). The applicant filed written submissions on 19 July 2024 in support of the settlement approval application. 20 The Deed sets out the terms on which the applicant and the State have agreed to resolve the proceeding and all matters arising out of or relating to the applicant's schooling and education at schools operated by the State. The State has not made any admission of liability. I have closely read and considered the terms of the Deed in reaching my conclusions on this application as set out below. 21 At the hearing on 25 July 2024, Mr Hancock appeared for the applicant and made oral submissions. The State was excused from attendance on its request, having notified the Court that it consents to the orders sought by the applicant.

Relevant principles 22 Rule 9.70(1) of the Federal Court Rules provides that, if a litigation representative agrees to the compromise or settlement of any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement. Upon its approval by the Court, the agreement is binding on the person by or for whom it was made as if that person were not under a legal incapacity and the litigation representative had made the agreement as the person's agent: r 9.70(2). 23 Under r 9.71, an interlocutory application by a litigation representative for approval of an agreement must be accompanied by an affidavit stating the material facts on which the application relies, the agreement that is sought to be approved, and "an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity". 24 In deciding whether or not to approve a settlement agreement under r 9.70 of the Federal Court Rules, so as to make that agreement binding on a party under a legal incapacity, the Court must be satisfied that the settlement is in the best interests of the person, or beneficial to his or her interests: Butler at [10]; Scandolera at [26]; Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 at [4] (Davies J); Young v State of Victoria (Department of Education and Training) [2018] FCA 1124 at [11] (Bromberg J). The Court is concerned only with the benefit of the person under the legal incapacity: Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041 at [12] per Tracey J. 25 In reaching the necessary state of satisfaction, significant weight will be given to the opinions of the applicant's legal advisers: Modra at [12] (Tracey J), referring to Re Barbour's Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191. Further, the Court is assisted by the opinion of the independent lawyer "who has been briefed fully on the facts and relevant evidence, and may have access to more material than the Court": Butler at [12]; Scandolera at [28]. However, the Court is not bound by that opinion, and must form its own view as to whether the settlement is beneficial to the interests of the person under a legal incapacity. 26 The considerations relevant to whether a proposed settlement is in the interests of a person under a legal incapacity include the person's prospects if the proceeding were to continue, and the advantages and disadvantages of the litigation continuing: see Scandolera at [29]-[32]; Young at [12]; Fisher at [35]-[36]. This encompasses matters such as the benefits conferred under the settlement, whether the applicant might secure a more advantageous outcome if ultimately successful at trial, the time that will be taken to obtain judgment at first instance and the prospect of an appeal, the risks and vicissitudes of litigation, the possible exposure to adverse costs orders, the emotional and psychological strain of continued litigation on the applicant and his family, and the finality and certainty secured in bringing an end to the litigation.

Approval of the settlement in the present case 27 In the Legal Opinion, Mr Hancock addresses the history of the proceeding, the stage the proceeding has reached, the relative strengths and weaknesses of each party's case and the applicant's prospects of success, the position of the State in the litigation, the uncertainties of litigation, the potential exposure of Mr Snell to an order for costs, and the amount of damages likely to be recovered by the applicant if the claim were substantially successful. The Legal Opinion assesses the amounts payable under the settlement both by way of damages and for legal costs and disbursements. In relation to the former, the Legal Opinion assesses the amount payable under the settlement relative to awards of damages in other discrimination cases, including in the field of education, and in comparison with court-approved settlements in other cases in which Mr Hancock has been involved. The Legal Opinion also addresses the damages that might be payable to the applicant in relation to his common law claims for assault, battery and false imprisonment. 28 There may be a question whether the Legal Opinion is properly regarded as an opinion of an "independent lawyer" for the purposes of r 9.71. Mr Hancock is briefed to appear for the applicant in this interlocutory application, and has been involved in advising the applicant and his family in connection with the proceeding, including drafting documents and legal submissions and appearances at previous interlocutory hearings. Mr Hancock has nevertheless advised that he considers that his opinion is independent for the purposes of r 9.71, or alternatively that it is appropriate that compliance with r 9.71(2)(c) be dispensed with. There is support in previous authorities for the adoption of that approach. 29 In Young at [18]-[19], Bromberg J stated: A separate question arises as to whether I should accept the opinion of Mr Hancock as an "opinion of an independent lawyer" for the purposes of r 9.71(2)(c), in circumstances where Mr Hancock had been briefed to act for the applicant in the proceeding. In [Wade v State of Victoria (No 2) [2012] FCA 1080] at [7]-[9] I construed the reference to an "[independent] lawyer" in r 9.71(2)(c) as not excluding a lawyer who may have had a prior association with the proceeding but whose opinion was provided in furtherance of that lawyer's duty to assist the Court and not in furtherance of any duty the lawyer may have had to a party in the proceeding. I noted that in many cases the substantial additional costs involved in obtaining the opinion of a lawyer with no prior knowledge or familiarly with the proceeding may be prohibitive. I observed that the Court has a capacity to dispense with the requirement of r 9.71(2)(c). In that case, I determined that if it were the case that r 9.71(2)(c) required that an opinion be provided by a lawyer who had no prior association with the proceeding, I would dispense with the requirement made by that Rule. Wade has since been followed in Modra at [9] (Tracey J), Hickey v Public Advocate (Victoria) [2012] FCA 1203 at [10]-[11] (Gray J), Koenders v Victoria [2016] FCA 842 (Davies J) and Biasin v State of Victoria [2017] FCA 161 at [15]-[16] (Kenny J). In the circumstances of this case, I consider it appropriate to receive and rely upon the opinion of Mr Hancock. It would be productive of unnecessary expense disproportionate to the circumstances of the proceeding to require another lawyer to be engaged to prepare an opinion. Accordingly, I propose to follow the same course here as that which I adopted in Wade. 30 A similar approach has been adopted in many other cases, including Modra at [8]-[11] (Tracey J), Hickey v Public Advocate (Victoria) [2012] FCA 1203 at [10]-[11] (Gray J), Freeman v State of Victoria [2018] FCA 797 at [17] (Moshinsky J), Koenders at [3] (Davies J), Lewis v State of Victoria (Department of Education and Training) [2019] FCA 714 at [13]-[14] (Kenny J), Bushby v State of Victoria (No 2) [2023] FCA 340 at [16]-[19] (McEvoy J), and Gaha v Gaha [2024] FCA 531 at [21]-[23] (Collier J). 31 Even in cases where the view has been taken that a lawyer with previous involvement in the case cannot properly be described as "independent" for the purposes of r 9.71(2)(c), the Court has nevertheless been prepared to dispense with compliance with that rule in circumstances where the opinion was regarded as clear and comprehensive and the engagement of another lawyer would be impractical and inefficient: see Jones v State of Victoria [2014] FCA 1404; 145 ALD 619 at [4]-[5] (North J); Allen v State of Victoria (Department of Education and Training) [2019] FCA 1074 at [8] (Snaden J). 32 In the present case, the Legal Opinion is clear and well-reasoned, and comprehensively addresses the considerations relevant to the question whether the settlement is beneficial to the interests of the applicant. Having regard to the amounts payable under the Deed (particularly in respect of legal costs and disbursements), there would be practical and financial difficulties in engaging another lawyer to cover the same ground. Accordingly, even if Mr Hancock does not qualify as an "independent lawyer" within the meaning of r 9.71(2)(c), it is appropriate to dispense with the requirement under that rule. 33 In my view, the settlement "represents a reasonable compromise and is not wholly disconnected from, or different to, the outcome if the matter were litigated": Butler at [19]. 34 The settlement sum is a fair reflection of the value of the applicant's claims against the State, particularly having regard to the stage that the proceeding has reached. The State has not yet filed a defence and does not admit liability. If the proceeding were to continue, it would have been some time before the matter were brought to trial, and there may well have been further interlocutory disputes between the parties. Any trial would have been lengthy and would have involved a number of witnesses giving evidence about the applicant and his experiences at the Jackson School. 35 The settlement sum will be held in trust and preserved for the benefit of the applicant and his current and future needs, subject to the payment of a capped amount in respect of legal costs and disbursements and the deduction of certain amounts which would have been recoverable in any event from any judgment awarding compensation to the applicant. 36 The settlement provides certainty and peace of mind for the applicant and his family, avoiding further stress and the inherent risks of litigation. 37 Having regard to the matters set out above, and giving appropriate weight to the matters set out in the Legal Opinion, I am satisfied that the settlement is beneficial to the interests of the applicant, and in his best interests. 38 Accordingly, the settlement is approved under r 9.70 of the Federal Court Rules.

Confidentiality 39 Section 37AF(1) of the FCA Act confers power to make a suppression order or non-publication order prohibiting or restricting the publication or other disclosure of, relevantly, information that relates to a proceeding before the Court and is lodged with or filed in the Court. Such an order may be made on one or more of the grounds set out in s 37AG(1), including where the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a). 40 The applicant seeks an order restricting the publication or disclosure of the Deed and the Legal Opinion, being Annexures GS-1 and GS-2 respectively to the affidavit of Geoffrey Snell sworn 22 May 2024. 41 Having considered the Deed and the Legal Opinion, it is apparent that the confidentiality of the terms of settlement was central to the resolution of the matter between the parties, and assisted the parties in reaching the settlement agreement. Notwithstanding the confidentiality of the settlement terms themselves, the applicant and those acting on his behalf are not prevented from making a public comment that the proceeding has been resolved in the applicant's best interests, nor from speaking about the subject-matter of the proceeding including the applicant's experiences at the Jackson School. 42 Particularly in circumstances where the confidentiality of the terms of the Deed is likely to have encouraged and facilitated the resolution of the proceeding, I consider that an order under s 37AF(1) of the FCA Act to protect that confidentiality is necessary to prevent prejudice to the proper administration of justice. Similarly, it is appropriate to preserve the confidentiality of the Legal Opinion that was provided to assist the Court in determining whether the settlement is in the interests of the applicant. As Mortimer J (as her Honour then was) stated in James v WorkPower Inc [2019] FCA 1239 at [18], "[t]he interests of the administration of justice are served by the making of limited orders to preserve the confidentiality of the terms of settlement, and of counsel's opinion … not only for these parties, but so that future parties can also have confidence the Court may facilitate the resolution of these kinds of proceedings by including such orders in any approval of a settlement". 43 Accordingly, I make orders under s 37AF(1) in the terms proposed by the applicant, with which the respondent has agreed.

Other matters 44 I note that it is contemplated that the applicant will file a notice of discontinuance in this proceeding and in the VCAT proceeding on terms that each party shall bear its own costs. 45 As such a notice may be filed with the consent of the respondent at any time before judgment has been entered in the proceeding (see r 26.12(2)(b) of the Federal Court Rules), it is unnecessary to grant the applicant leave to file a notice of discontinuance. Any notice of discontinuance by consent should be signed by each party (r 26.12(3)(b)) and should expressly provide that, despite r 26.12(7), each party shall bear its own costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.