Thomas v Marriott Support Services

REASONS FOR JUDGMENT 1 Ms Samantha Thomas suffers from an intellectual disability, mild cerebral palsy and right amblyopia. She is aged 42 years. 2 From October 1992 Ms Thomas was employed by the respondent pursuant to a contract of employment. She performed her duties in a sheltered environment. The work which she undertook was allocated having regard to her capacity to perform the work. 3 In July 2010 the respondent advised Ms Thomas that, as from 6 September 2010, her work hours would be reduced to two and a half days per week and that, from 30 June 2011, her paid employment would be terminated. 4 Ms Thomas commenced a proceeding in Fair Work Australia. She alleged that the respondent had dismissed her from employment in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) ("the Act"). The respondent sought to justify its actions on the ground of economic necessity. Attempts by Fair Work Australia to resolve the dispute were unsuccessful. On 29 March 2011 Commissioner Blair issued a certificate pursuant to s 369 of the Act. The issuing of the certificate enabled Ms Thomas to commence the present proceeding in this Court: see s371 of the Act. 5 The proceeding was referred to a Registrar of the Court for mediation. The issues between the parties were not resolved at mediation. 6 Shortly after the mediation had concluded Ms Thomas's solicitors filed an application seeking the appointment of her mother and carer Mrs Alison Cornelius as her litigation representative for the purpose of the proceeding. This application was approved by me on 5 December 2011. 7 Various steps were then taken to ready the matter for trial. Towards the end of 2012 discussions took place between the legal representatives of the parties. These discussions led to terms of agreement to settle the proceeding. 8 A deed of settlement was prepared and was signed by Ms Thomas, her litigation representative and the chief executive officer of the respondent. The deed was made on 6 March 2013. 9 Rule 9.70(1) of the Federal Court Rules 2011 (Cth) ("the Rules") required that the litigation representative apply to the Court for approval of the agreement. The application was accompanied, as required by Rule 9.71(2), by: An affidavit from Ms Thomas's solicitor which provided the material facts on which the application relied; A copy of the deed of release; and The opinion of an independent lawyer to the effect that the agreement reflected in the deed was in the best interests of Ms Thomas. 10 The affidavit sworn by Ms Thomas's solicitor: Exhibited a copy of the deed of release; Exhibited advice from counsel that the settlement terms "would be in the applicant's best interests, particularly given the scope and complexity of legal and factual disputes which would otherwise would have to be resolved by way of contested hearing"; and Provided reasons for concurring in counsel's view that the proposed settlement was in the best interests of Ms Thomas. 11 The "independent" lawyer who provided the advice was a barrister who had had no previous association with the case: cf Wade v State of Victoria (No 2) [2012] FCA 1080; Hickey v Public Advocate (Victoria) [2012] FCA 1203. Counsel had had access to the pleadings and the deed of release. 12 In determining whether to sanction a compromise under Rule 9.70(1) of the Rules the Court is concerned only with the benefit of the disabled person: see Gillespie v Alperstein [1964] VR 749. In forming the necessary judgment significant weight will be given to the opinions of the applicant's legal advisers. In Re Barbour's Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191, Megarry J, speaking of an application made on behalf of a minor, said that: "… there is the important matter of the minor's benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned." 13 The same considerations are, in my opinion, relevant when considering the approval of terms of settlement which involve an intellectually disabled adult. 14 Ms Thomas's solicitor has explained the manner in which she formed the opinion in favour of the settlement. Her views are founded, in part, on the advice of counsel with which she agrees. I have read counsel's advice. It is supportive of the settlement of the proceeding and the terms on which it is proposed to do so. It is not appropriate that I summarise the advice which goes to the strengths and weaknesses of Ms Thomas's case. It is sufficient that I record that, had the matter proceeded to trial, Ms Thomas would have confronted a number of complex factual issues including the financial viability of the respondent's business activities and the extent of her contribution to it. 15 The terms of settlement include a clause which requires the parties to maintain, in confidence, the terms of their agreement. I have read the agreement and am satisfied that the compromise of the proceeding on the terms proposed is in Ms Thomas's best interests. In forming this view I have taken into account the carefully expressed opinions of her legal advisers and those attributed to her litigation guardian. Whilst Ms Thomas's intellectual disability undoubtedly limits to some extent her capacity fully to appreciate the proposed terms, I am satisfied that she has a basic understanding of at least some of them and looks forward to putting the dispute behind her and moving on with what her solicitor calls "the next chapter" of her life. 16 The terms of the settlement will be approved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.