FEDERAL COURT OF AUSTRALIA McKenna-Reid v Rigo [2011] FCA 883 Citation: McKenna-Reid v Rigo [2011] FCA 883 Parties: DANIEL MCKENNA-REID, BY HIS NEXT FRIEND, ERICA MCKENNA v FR. STEVEN RIGO and STEPHEN ELDER File numbers: VID 892 of 2009 VID 75 of 2010 Judge: KENNY J Date of judgment: 5 August 2011 Catchwords: HUMAN RIGHTS – discrimination – child with disabilities – claims of unlawful discrimination in the provision of education services – application for approval of settlement of claim – approval of settlement given Legislation: Disability Discrimination Act 1992 (Cth) Disability Standards for Education 2005 (Cth) Federal Court Rules 2011 (Cth) Federal Court Rules 1979 (Cth) Date of hearing: 5 August 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Solicitor for the Applicant: Mr R Appudurai, Russell Kennedy Counsel for the Respondents: Ms S Marks SC Solicitor for the Respondents: Gadens IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 892 of 2009 VID 75 of 2010 BETWEEN: DANIEL MCKENNA-REID, BY HIS NEXT FRIEND, ERICA MCKENNA Applicant AND: FR. STEVEN RIGO First Respondent STEPHEN ELDER Second Respondent JUDGE: KENNY J DATE OF ORDER: 5 AUGUST 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The settlement between the parties recorded in exhibit "EJM-1" to the affidavit of Erica Jane McKenna affirmed on 3 August 2011 ("the McKenna Affidavit") is approved. 2. On or before 19 August 2011, the respondents pay to Ms Erica McKenna and Mr Troy Reid, on behalf of the applicant, the sum specified in clause 2.1 of Exhibit "EJM-1" to the McKenna Affidavit. 3. Upon receipt by the court of written confirmation from the applicant's solicitors that paragraph 2 above has been complied with, the applications made on behalf of the applicant in proceeding number VID 892/2009 and in proceeding number VID 75/2010 be dismissed. 4. The McKenna Affidavit and exhibit "EJM-1" thereto and the letter and enclosure from Russell Kennedy solicitors to the Court dated 26 July 2011 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". 5. There be no orders as to costs Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 892 of 2009 VID 75 of 2010 BETWEEN: DANIEL MCKENNA-REID, BY HIS NEXT FRIEND, ERICA MCKENNA Applicant AND: FR. STEVEN RIGO First Respondent STEPHEN ELDER Second Respondent JUDGE: KENNY J DATE: 5 August 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 By his next friend, Erica McKenna, the applicant has brought proceedings against the respondents under the Disability Discrimination Act 1992 (Cth) ("the DDA") seeking damages on the basis that the respondents have unlawfully discriminated against the applicant in the provision of education services. 2 On 12 December 2008 and 24 November 2009, the applicant filed disability discrimination complaints against the respondents with the Australian Human Rights Commission ("the Commission"), alleging (amongst other things) breaches of the DDA and breaches of the Disability Standards for Education 2005 (Cth). These complaints were terminated on 13 October 2009 and 13 December 2009 pursuant to section 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 December 2009, the applicant brought proceeding VID 892 of 2009 against the respondents under the Disability Discrimination Act 1992 (Cth). Another proceeding (VID 75/2010) was commenced on 9 February 2010. The two proceedings were consolidated by orders of 10 March 2010. 4 Broadly speaking, in the proceedings as consolidated, the applicant sought a declaration that, between 2007 and 2010, the respondents unlawfully discriminated against him in the provision of education services at a school for which they were responsible. The applicant also sought compensation by way of damages. 5 A trial was fixed for November this year. 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 Rule 9.70(1) of the Federal Court Rules 2011 (Cth) and O 43 r 9 of the Federal Court Rules 1979 (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 proceedings have 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 this assessment, the Court will not only consider the terms of settlement, but also, amongst other things, the opinion of the litigation guardian (Erica McKenna); whether her consent to the settlement is based on independent legal advice; the opinions of any other relevant person (for example, the applicant's father, Troy Reid); and the terms of any legal advice or the terms of any expert opinion relevant to the issues in the proceedings. 8 In support of the application for approval of the settlement, on behalf of the applicant, Erica McKenna has affirmed an affidavit dated 3 August 2011. This affidavit addressed the appropriateness and adequacy of the settlement by reference to a number of facts including: 1. the applicant's disabilities; 2. the nature of the claims made against the respondents; 3. the efforts to settle the matter; 4. the advice given by the applicant's lawyers; 5. the risks and uncertainties of litigation including the possible liability for costs in the event the proceedings are unsuccessful; 6. the emotional welfare of the applicant and his family; and 7. the reasons for settling. 9 I am satisfied that the applicant's litigation guardian (and mother) and the applicant's father have received independent legal advice relating to the settlement. In addition to advice from the lawyers acting for them in the proceeding, they have received advice from a disability discrimination advocate. 10 In light of "best recovery" and the risks, uncertainties and potential burdens of litigation (including having regard to the outcomes of other education discrimination cases), the fact that the applicant's litigation guardian (and mother) has consented to the settlement after she and the applicant's father have taken independent relevant and informed advice, the terms of settlement, the reasons as stated by Erica McKenna for the settlement, the stage the proceedings have reached, the potential for a complex and lengthy trial, and the other relevant matters mentioned earlier, I am satisfied that the settlement is fair and reasonable as regards the applicant and properly protective of his interests. 11 The Court will approve the settlement between the parties recorded in Exhibit "EJM-1" of the affidavit of Erica McKenna affirmed on 3 August 2011. 12 The applicant has filed a minute of proposed order, to which the respondents do not object. The Court will make orders that give effect to the minute of order. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 5 August 2011