Wade v State of Victoria

JUDGE: BROMBERG J DATE: 3 october 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Rule 9.70 of the Federal Court Rules 2011 ("the Rules") provides that where a litigation representative agrees to a settlement of any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement. If the Court approves the agreement, the agreement then becomes binding on the person by or for whom it was made. 2 Lamprini Wade ("Mrs Wade") is the litigation representative as well as the mother of the applicant ("Christos Wade"). Mrs Wade has applied for the Court's approval of the settlement of these proceedings recorded in a Deed of Release made with the respondent, the State of Victoria. For the reasons that follow, I have determined that the Court should give its approval to the settlement reached. 3 In these proceedings, Christos Wade alleges that he has multiple disabilities, including Language Disorder/Difficulty; Expressive Language Disorder/Difficulty; Pervasive Developmental Disorder-Autism Spectrum Disorder; Major Depressive Disorder; Attention Deficit Hyperactivity Disorder; Borderline Cognitive Functioning/Learning Disability; and Adjustment Disorder. He claims that in order to access the educational services provided by the State of Victoria in the various primary and secondary schools which he attended between 2000 and 2009, various adjustments should have been, but were not, provided to him. The failure of the State of Victoria to provide such adjustments is alleged to constitute direct and indirect discrimination and victimisation in breach of various provisions of the Disability Discrimination Act 1992 (Cth). 4 Two affidavits in support of the application seeking the Court's approval of the settlement have been made by Mrs Wade. One of those affidavits includes a copy of the Deed of Release which sets out the settlement reached between the parties. I have also been provided with a copy of an advice obtained by Mrs Wade from David J Hancock of Counsel and correspondence from the Riverland Advocacy Service relating to Mrs Wade's management of the financial affairs of Christos Wade. The application is also accompanied by minutes of proposed consent orders which are in the terms of the orders which I intend to make. 5 The settlement of litigation should normally be welcomed. There are a multitude of reasons why the interests of an applicant are better served by the security of a reasonable compromise than the vicissitudes of litigation. Not only does litigation impose financial burdens and potential risks upon an applicant, litigation will also likely be a significant stressor upon an applicant's life and that of his or her family. There are both tangible and intangible benefits to an applicant making a reasonable comprise. 6 In such circumstances, it will usually be difficult for a Court to assess the reasonableness of a compromise reached between a litigation representative on behalf of an applicant and a respondent. Particularly in a case such as this, where there has been no trial of the matters in dispute, the assessment made will necessarily be reliant upon an assessment of the grounds proffered by the litigation representative, including the opinion required by r 9.71(2)(c) of "an independent lawyer that the agreement is in the best interests of the person under a legal incapacity". 7 In making this application, the applicant's solicitors drew my attention to the question of whether Mr Hancock meets the description "independent lawyer" in r 9.71(2)(c). Mr Hancock has been involved in these proceedings as counsel for Christos Wade. 8 The requirement made by r 9.71(2)(c) is relatively new. To my understanding, it has long been the practice of this Court (at least in the Victorian Registry) in applications such as this, to permit reliance upon an opinion as to the adequacy of a settlement given by the solicitor or counsel acting for the applicant in the proceedings. 9 There is ambiguity as to what the word "independent" in r 9.71(2)(c) intends. I doubt that it was intended to effect a change in the long-standing practice to which I have referred. Arguably, the rule now imposes a requirement that a lawyer with no prior association with the proceeding provide an opinion. Whilst there may be cases where such an opinion would assist, the substantial additional costs involved in obtaining the opinion of the lawyer with no prior knowledge or familiarity with the proceeding, would likely far outweigh any potential benefits. It is more likely that what the rule intends is that the opinion prepared by the lawyer be provided in furtherance of the lawyer's duty to assist the Court and not in furtherance of any duty the lawyer may have to a party in the proceeding. In my view, it is in that respect that the lawyer must be "independent". 10 Having read Mr Hancocks's opinion, I am content to accept it as an opinion given solely in furtherance of Mr Hancock's duty to assist the Court. If it is the case that r 9.71(2)(c) requires that the application be accompanied by the opinion of a lawyer who has had no prior association with the proceeding, given the circumstances of this case and in particular the nature of the settlement involved, I would dispense with that requirement and allow the opinion given by Mr Hancock to be relied upon. 11 Mr Hancock has prepared a detailed advice in which he has canvassed both the prospects of the applicant's success and also a range of circumstances personal to Mrs Wade and her son which favour the resolution of this proceeding by way of the settlement reached. The accuracy of the facts relied upon by Mr Hancock is confirmed by Mrs Wade. I consider that Mr Hancock is well placed to understand both the merits of the claim made and the risks of the litigation. He has carefully considered the strengths and weaknesses of the applicant's case, taken account of the personal circumstances which favour settlement and concluded that the settlement is fair and reasonable. Given the comprehensive and apparently well reasoned opinion given by Mr Hancock, Mrs Wade's support for the settlement and having considered the terms of the Deed of Release, I am satisfied that the settlement should be approved. 12 The material before me also suggests that there is an issue between Mrs Wade and the solicitors appointed by her as to whether solicitor and client costs should be paid by Mrs Wade personally. In approving the settlement, I have proceeded on the basis that solicitor and client costs are to be borne personally by Mrs Wade rather than out of the settlement funds. 13 Christos Wade is now 18 years of age. He is not able to manage his own financial affairs. To date that function has been performed by Mrs Wade. Mrs Wade has deposed to her intent to deposit the settlement funds in a long term interest bearing account and to otherwise manage the funds taking into account her son's best interests. Given Mrs Wade's ongoing role as Christos Wade's carer and the assurance she has given to the Court about the way she intends to manage the settlement sum on behalf of her son, I am satisfied that the payment of the settlement sum to the applicant on the basis that it be managed by his mother, sufficiently safeguards Christos Wade's interests. 14 For those reasons, I will approve the settlement reached between the parties and recorded in exhibit "LW-1" to the Affidavit of Mrs Wade of 10 July 2012 ("The Wade Affidavit"). I will also order that the Wade Affidavit, which contains Mr Hancock's opinion and the Deed of Release, be treated on a confidential basis by being placed in a sealed envelope marked "Not to be opened without the permission of a Justice of this Court". As proposed by the parties, I will make a further order that each of the proceedings to which the settlement relates, be dismissed and that costs be dealt with in accordance with the settlement made. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.