Denton v State of Victoria (Dept of Education) CaseBase | [2011] FCA 854 | BC201106042 DENTON (by his next friend BOYD) v VICTORIA (DEPT OF EDUCATION) BC201106042 Unreported Judgments Federal Court of Australia · 13 Paragraphs Federal Court of Australia — Victoria District Registry Kenny J VID 294 of 2011 2 August 2011 Denton v State of Victoria [2011] FCA 854 Headnotes HUMAN RIGHTS — Discrimination — Child with disabilities — Claim of unlawful discrimination in the provision of education services — Application for approval of settlement of claim — Approval of settlement given. (CTH) Disability Discrimination Act 1992 (CTH) Disability Standards for Education 2005 (CTH) Australian Human Rights Commission Act 1986 (CTH) Federal Court Rules 1979 (CTH) Federal Court Rules 2011 Kenny J. [1] By his next friend, Ms Lyn Boyd, the applicant has brought proceedings against the respondent under the Disability Discrimination Act 1992 (Cth) (“the DDA”) seeking damages on the basis that the respondent, the State of Victoria, committed unlawful discrimination against the applicant in the provision of education services. [2] On 19 May 2009, the applicant filed a disability discrimination complaint against the respondent with the Australian Human Rights Commission (“the Commission”) alleging breaches of the DDA and breaches of the Disability Standards for Education 2005 (Cth). On 15 December 2009, the complaint was terminated by the Commission pursuant to s 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) on the ground that the Commission was satisfied that there was no reasonable prospect of the matter being settled by conciliation. [3] On 11 February 2010, the applicant filed an application in the Federal Magistrates Court in relation to the subject matter of the complaint, pursuant to s 46PO of the AHRC Act. [4] On 31 March 2011, a Federal Magistrate transferred that proceeding to the Federal Court of Australia. In short reasons for judgment delivered that day (see [2011] FMCA 334), the learned Federal Magistrate amongst other things stated: The history of the matter in Denton is as follows: On 11 February 2010, an application and statement of claim were filed. On 22 March 2010, I made orders which listed the matter for trial on 10 December 2010 with an estimate provided by the parties of ten days. On 9 August 2010, I made further directions by consent for the filing of affidavits. The trial date was re- Page 2 of 3 Denton v State of Victoria (Dept of Education), [2011] FCA 854 listed at 6 December 2010 and the estimate of 10 days remained the same. An affidavit had been filed by the next friend of the applicant on 19 October 2010, but nothing thereafter happened until 9 November 2010 when further directions were made. The trial was vacated essentially because the parties had been inert in the interim and had simply not followed the timetable set earlier by consent. On 9 November 2010, I made orders for the applicant to file all relevant materials and a return date was fixed for 4 March 2011. … In the interim before March 2011, … there were six further affidavits filed in Denton … On 4 March 2011 I made orders designed to progress the matter, for example requiring the respondent to file affidavits and so on. According to counsel for the respondent, here are 45 departmental employees identified in the applicant’s affidavit in Denton … Counsel for the respondent was not able to say if all would need to be called but clearly they may be. In addition the affidavit[] of Lyn Boyd … annex [s] numerous reports of professional witnesses who would presumably need to be called if their evidence is to be admissible. It is clear, and indeed it is common cause between the parties, that the ten day estimate is wildly short. … In addition, the case [] raise[s] relatively novel issues in disability discrimination … It should be noted that there has been a very regrettable period of delay since these proceedings commenced in February 2010, but it must be said that this has been caused but the delays of the parties themselves. I note that counsel for the applicant[] made reference to the urgency of the proceeding and the necessity for relief for his clients but it was, I note, also the applicants who sought a more extended timetable when the matter was last before the Court … [5] In this court this proceeding is VID 294/2011. The parties have now come to an agreement to settle the proceeding. The terms of settlement are recorded in writing and signed. The terms are confidential. [6] Under the Rules of this court, the court must approve any settlement made on behalf of an applicant under a disability: see O 43 r 9 of the Federal Court Rules 1979 (Cth) and r 9.70(1) of the Federal Court Rules 2011 (Cth). Broadly speaking, the task of the court is to determine whether the proposed settlement is fair and reasonable as regards the applicant and, in particular, whether it properly safeguards the interests of the applicant as a minor and as a person under a disability. [7] In making such an assessment, the court will ordinarily take into account a number of factors, including the prospects of success, having regard (amongst other things) to the risks of establishing liability and the risks of establishing an entitlement to damages significantly greater than any amount proposed to be paid under the settlement, the complexity and probable duration of a trial, the stage the proceeding has reached, the terms of settlement, the reasonableness of the settlement in light of the “best recovery” and in light of all the risks of litigation. In making its assessment, the court will not only consider the terms of the settlement, but also, amongst other things, the opinion of the litigation guardian (Ms Lyn Boyd); whether her consent to the settlement is based on independent legal advice; and the terms of any legal advice or the terms of any expert opinion relevant to the issues in the proceeding made available to the court. [8] In support of the application for approval of the settlement, on behalf of the applicant, Ms Boyd has filed an affidavit sworn by her on 25 July 2011. That affidavit addresses the adequacy of the settlement. It does so by reference to a number of facts and matters including: 1. the applicant’s disabilities; 2. the nature of the claims made against the respondent; 3. recent efforts to settle the matter; 4. the advice given by the applicant’s lawyers; 5. reasons for settling. [9] Exhibited to Ms Boyd’s affidavit was a letter dated 14 July 2011 from Access Lawyers, which set out an opinion of the applicant’s lawyer, Mr Kuek, about the settlement and his reasons for that opinion. I have considered this opinion. [10] In light of “best recovery” and having regard to all the risks of litigation (including the outcomes of other education discrimination cases), as well as the terms of settlement, I am satisfied that the settlement is fair and reasonable as regards the applicant and properly protective of his interests. In reaching this conclusion, I have also had regard to the other relevant matters mentioned above, including the likely complexity and probable duration of a Page 3 of 3 Denton v State of Victoria (Dept of Education), [2011] FCA 854 trial, the stage the proceeding has reached, including the delay to which the Federal Magistrate referred and the effect of this delay on costs, as well as the reasons deposed to by Ms Boyd for entering into the settlement. [11] The court will approve the settlement between the parties recorded in Ex “LB-1” of the affidavit of Lyn Boyd sworn 25 July 2011. [12] The court will also order that the affidavit of Ms Boyd sworn 25 July 2011 and the exhibits thereto be treated as confidential by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”. [13] I note that cll 3.1(c) and (d) of the Deed of Release provide, in effect, that the applicant is to file a notice of discontinuance, with no order as to costs, on or before 9 August 2011 and then, within seven days thereafter, to provide the respondent with a copy of that notice as filed. The applicant must, of course, comply with these clauses according to their terms. Under the Rules of Court, however, in circumstances such as the present, a party requires the leave of the court to discontinue the proceedings. I would indicate to the parties that I would not grant leave to discontinue until advised by them that the payments referred to in cll 2.1 and 2.2 of the Deed of Release have been made in conformity with those clauses. I would therefore direct that parties to notify my Chambers when those payments have been made. Order 1. The settlement between the parties recorded in the Deed of Release exhibited as “LB-1” to the affidavit of Ms Lyn Boyd sworn on 25 July 2011 is approved. 2. The affidavit of Ms Boyd sworn 25 July 2011 and the exhibits thereto be treated as confidential by being placed in a sealed envelope marked “NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT”. 3. The parties notify the Chambers of Justice Kenny that payments in accordance with cll 2.1 and 2.2 of the Deed of Release (see para 1 above) have been made, within 3 days’ of those payments having been made. Solicitor for the applicant: Mr Kuek, Access Law Solicitor for the respondent: Mr R Jolley, Minter Ellison End of Document