Tsirigotis v The Ivanhoe Grammar School

MORTIMER J: 1 By an interlocutory application made on 30 November 2018, the applicant, Stephanie, by her litigation guardian who is her mother, has applied for approval of a settlement reached between the parties in this proceeding. 2 This is the second proceeding involving the applicant and claims of unlawful discrimination relating to the provision of education services to her. My approval of a settlement reached between the applicant and another provider of education services in the first proceeding can be found in Tsirigotis v The Ivanhoe Girls Grammar School [2017] FCA 1064. 3 The current proceeding arises out of an attempt by Stephanie's parents to enrol her at the Ivanhoe Grammar School, for the 2018 school year, shortly after the settlement of the first proceeding at mediation on 5 July 2017. 4 The applicant's outline of case, filed in this proceeding, describes what she alleges occurred. Medical and other reports were provided to the school, outlining Stephanie's disabilities and what would be required to fulfil her educational needs. There was an ongoing iterative process between the school and Stephanie's parents for several months, the purpose being (it would appear) to ascertain whether the school could fulfil Stephanie's educational needs, and how it might do so. 5 In November 2017, in a series of communications, the school informed Stephanie's mother that it would not accommodate or accept Stephanie's enrolment application for 2018. The applicant contends several reasons were given, which included: (a) the school was uncertain of how Stephanie may behave in an unstructured education setting; (b) the school needed evidence that Stephanie would not display behaviours of concern, and to that end she was required to participate in a school social skills training program; (c) the school could not "cater to Stephanie's needs at this time" because she had engaged in self-harming and anti-social behaviour, and her behaviour may pose an occupational health and safety risk, as well as interfering with the educational experience that the school offered. 6 In substance, the respondent did not dispute many of the factual allegations made by the applicant, emphasising in its response to the outline of case the severity and extremity of Stephanie's behaviours, and the dangers they presented to her, to staff and to other students, together with the level of resources which would be needed to manage her presence at the school. In its response, the respondent gave many examples of Stephanie's behaviours, and it is fair to say that it is not difficult to see how, unless comprehensively managed, her behaviours could pose risks to herself, to staff and to other students. The respondent contended it had been made clear to Stephanie's parents that the school was not "closing the door on Stephanie's enrolment and would be open to reconsidering Stephanie's enrolment following her completion of a school social skills training program, or something similar, which addresses the behavioural concerns that impact upon Ivanhoe's capacity to cater to Stephanie's behaviour and educational needs". 7 The applicant's case also alleged contraventions of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)), on the basis that the school had made representations about its ethos: namely that the school was "courageous and kind", "innovative, courageous, compassionate, balanced, collaborative, ethical and reflective", and a school recognising that "every child is capable of doing something well and has something to contribute. This must be encouraged and developed to the utmost." The applicant alleged these representations were misleading or deceptive, and also that in the light of these representations, by refusing to enrol Stephanie for 2018, the school had engaged in unconscionable conduct in contravention of s 21 of the ACL.

The present application 8 The parties attended a mediation before a Registrar of this Court on 25 October 2018, and reached a settlement agreement at that mediation. 9 The present application is supported by an affidavit of Ms Marita Snipe, the applicant's solicitor. The Settlement Deed is exhibited to that affidavit, as is an opinion of Senior Counsel concerning whether the settlement reached is in Stephanie's best interests, concluding that it is, while acknowledging the limits of the settlement terms. 10 The filing of the affidavit in support of this application was plainly contemplated by the parties, although it has not been served on the respondent, because the applicant seeks orders that it, and its exhibits, be and remain confidential to the applicant and her legal representatives, in particular the opinion of Senior Counsel.

Resolution 11 Rules 9.70 and 9.71 of the Federal Court Rules 2011 (Cth) provide: 9.70 Compromise or settlement of matter in proceeding (1) 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. (2) If the Court approves the agreement, the agreement is binding on the person by or for whom it was made as if: (a) the person were not under a legal incapacity; and (b) the litigation representative had made the agreement as the person's agent. (3) The Court may, as a condition of approval, require that any money or other property payable for the benefit of a person under a legal incapacity be dealt with by way of a settlement, or in any other way that the Court considers appropriate. Note: The Court may give approval subject to conditions - see rule 1.33. (4) If the Court does not approve the agreement, the agreement is not binding on the person under a legal incapacity. 9.71 Application by litigation representative for approval of agreement (1) An application by a litigation representative for approval of an agreement must be made by filing an interlocutory application. (2) The interlocutory application must 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; (c) an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity. 12 As I noted in Tsirigotis v The Ivanhoe Girls Grammar School, by reference to my reasons in Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296 (at [10]), in determining whether or not to approve a settlement, for the purpose of rendering it binding on an applicant under a legal incapacity, the Court must be satisfied the settlement is in the applicant's best interests, or beneficial to the applicant's interests. That is not a requirement of the Rules themselves but stems from the nature of the jurisdiction exercised by the Court where a party is under a disability and unable to conduct a proceeding himself or herself. As I did in Tsirigotis v The Ivanhoe Girls Grammar School, I also refer to and adopt the approach I explained in Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525 at [27]-[29]: It is the Court's responsibility to determine, for itself, whether the settlement is beneficial to the interests of the person under a disability: see Somerset v Ley [1964] 1 WLR 640 sub nom Re Ley's Trusts [1964] 2 All ER 326; Permanent Trustee v Mills [2007] NSWSC 336; 71 NSWLR 1 at [29] per Hammerschlag J; Fisher v Marin [2008] NSWSC 1357 at [29] per Rothman J; Button v CSL Ltd [2014] FCA 601 at [31] per Barker J. The Court is assisted in that determination by the provision of an opinion by an independent lawyer who has been briefed fully on the facts and relevant evidence, and may have access to more material than the Court. However the Court is not bound by the independent opinion, and indeed there have been situations where the Court has not approved a settlement despite the advice of an independent lawyer: see for example Rothman J's decision in Fisher disapproving settlement (under equivalent NSW legislation). The circumstances of that case were somewhat particular, because the plaintiff's litigation guardian had changed her mind and sought that the settlement not be approved. Rothman J ultimately agreed the settlement should not be approved. The determination whether the proposed settlement is in the best interests of, or beneficial to the interests of, a person under a disability requires the Court to weigh, at least as an important consideration, the prospects of the applicants if the proceeding were continue[d]: see Fisher at [35]-[37]. Since the approval of a settlement will bind the party under the disability and bring the litigation to an end, the Court should consider the advantages and disadvantages of the litigation continuing not only in terms of whether the applicants might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on Matthew and Harley if the litigation were to continue to what is estimated to be a five-week trial. 13 I adhere to the view I expressed in Butler, Scandolera and Tsirigotis v The Ivanhoe Girls Grammar School that the emotional and psychological strain of litigation is an important factor in considering the risks attending the full litigation of a proceeding. As I noted in Tsirigotis v The Ivanhoe Girls Grammar School, that is true even when the applicant is quite a young child, as Stephanie is. She is still of an age where she will experience some strain herself, and be exposed to the strain experienced by her parents in prosecuting a matter like this through to trial. 14 It is clear from the evidence that Stephanie's parents and the respondent are not averse to maintaining an ongoing relationship, to see if at some stage Stephanie might be successfully enrolled at the school. The very fact of the conduct underlying this second application illustrates that Stephanie's parents still wish her to attend the school if that is at all possible. In that sense, having the parties fight out contested litigation is likely to damage any ongoing co-operative working relationship. 15 I have considered the opinion of Senior Counsel. It is not necessary for the Court to agree or disagree with such an opinion to be satisfied that a proposed settlement is in the best interests of the person under a disability, although of course Senior Counsel's opinion is of considerable relevance. In the present situation, the main persuasive point from the Court's perspective is that the settlement has some substantive, although modest, benefit for Stephanie, but will also remove the ongoing stressor of this litigation. 16 Having considered the allegations as put, the opinion of Senior Counsel, and the terms of the Settlement Deed, I am satisfied that settlement of this proceeding on the terms set out in the Deed is in Stephanie's best interests. No order for costs was sought. The Court commends the parties' responsible and timely resolution of the proceeding. 17 I am also satisfied it is appropriate, on the grounds set out in s 37AG of the Federal Court of Australia Act 1976 (Cth) to make orders pursuant to s 37AF of that Act, preserving the confidentiality of the opinion given by Senior Counsel, and the terms of settlement. The orders will need to distinguish between those two documents, as the parties to be included in the scope of each order differs. There is no basis to suppress the affidavit itself, and insofar as the applicant applied for orders to this effect, that application is refused. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.