FEDERAL COURT OF AUSTRALIA Hickey v Public Advocate (Victoria) [2012] FCA 1203 Citation: Hickey v Public Advocate (Victoria) [2012] FCA 1203 Parties: COLBY HICKEY (BY HIS NEXT FRIEND RAYMOND HICKEY) v PUBLIC ADVOCATE (VICTORIA) and ANTOINETTE KHALIL File number: VID 128 of 2012 Judge: GRAY J Date of judgment: 24 October 2012 Catchwords: HUMAN RIGHTS - discrimination – disability – settlement of proceeding – approval of settlement by Court – application for approval – requirement that application be accompanied by opinion of independent lawyer – whether opinion of counsel acting for applicant complies PRACTICE AND PROCEDURE – applicant under disability – settlement – approval of settlement by Court – application for approval – requirement that application be accompanied by opinion of independent lawyer – whether opinion of counsel acting for applicant complies Words & phrases: "independent" Legislation: Disability Discrimination Act 1992 (Cth) ss 5, 6 Federal Court Rules 2011 (Cth) rr 9.70, 9.70(1), 9.71, 9.71(2)(c) Cases cited: Wade v State of Victoria (No 2) [2012] FCA 1080 followed Date of hearing: 24 October 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the applicant: Mr DJ Hancock Solicitor for the applicant: MLC Lawyers Counsel for the respondents: Ms C Serpell Solicitor for the respondents: Office of the Public Advocate IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 128 of 2012 BETWEEN: COLBY HICKEY (BY HIS NEXT FRIEND RAYMOND HICKEY) Applicant AND: PUBLIC ADVOCATE (VICTORIA) First Respondent ANTOINETTE KHALIL Second Respondent JUDGE: GRAY J DATE OF ORDER: 24 OCTOBER 2012 WHERE MADE: MELBOURNE THE COURT ORDERS BY CONSENT THAT: 1. Pursuant to rule 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in the deed of agreement exhibited as "REH3" to the affidavit of Mr Raymond Hickey sworn on 23 October 2012 is approved. 2. The affidavits of Mr Raymond Hickey sworn on 17 and 23 October 2012 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 application made on behalf of the applicant in Federal Court proceeding number VID 128 of 2012 be dismissed. 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 128 of 2012 BETWEEN: COLBY HICKEY (BY HIS NEXT FRIEND RAYMOND HICKEY) Applicant AND: PUBLIC ADVOCATE (VICTORIA) First Respondent ANTOINETTE KHALIL Second Respondent JUDGE: GRAY J DATE: 24 OCTOBER 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 By an interlocutory application filed on 17 October 2012, Raymond Edwin Hickey, the litigation representative of Colby Hickey, applies for an order approving an agreement for the compromise or settlement of a proceeding in the Court. The application is made pursuant to r 9.70(1) of the Federal Court Rules 2011 (Cth) ("the Federal Court Rules"), which requires that the litigation representative must apply to the Court for approval of the agreement. 2 The application by Colby Hickey, in which Raymond Hickey is named as his next friend, was filed on 16 February 2012. There are two respondents named in the proceeding. The first respondent is the Public Advocate for the State of Victoria and the second is a person who was appointed by the Public Advocate to be the guardian of Mr Colby Hickey. 3 By order made on 14 March 2012, the proceeding was referred to a registrar for mediation. In the course of that mediation, the parties were successful in reaching an agreement as to how they wished to resolve the proceeding. The purpose of today's application is to seek the approval of the Court for that settlement. 4 The parties desire to keep the terms of the settlement confidential, so far as they possibly can. For that purpose, they seek an order by consent that the affidavit of Mr Raymond Hickey accompanying the application and the exhibits to that affidavit, be treated as confidential by being placed in a sealed envelope and marked "NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUSTICE OF THIS COURT". It should be said that the same order is sought by consent with respect to an earlier version of the deed of settlement, accompanying an earlier affidavit of Mr Raymond Hickey. That earlier version has been superseded by the deed of settlement, approval of which is now sought. 5 The essence of the settlement involves the payment of a lump sum by the first respondent, for the benefit of the applicant, to his administrator, who is his mother. The deed provides for the manner in which the administrator, who is a party to it, is to manage and apply the funds. In the management and application of the funds, the administrator is subject to the supervision of the Victorian Civil and Administrative Tribunal ("VCAT") in the exercise of its guardianship jurisdiction. I am satisfied that the settlement sum will be managed appropriately by means of that machinery. 6 In relation to an application of this kind, r 9.71 of the Federal Court Rules requires that a litigation representative make an interlocutory application, accompanied by an affidavit stating the material facts upon which the application relies, the agreement that is sought to be approved and an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity. 7 I have been supplied with a detailed opinion of Mr Hancock of counsel. That opinion was in relation to the now superseded version of the deed of settlement but Mr Hancock, who has appeared for Mr Raymond Hickey today, has drawn my attention to the differences between the two deeds and has expressed the view that the opinion he expressed in the document filed still applies, namely, that the settlement is in the best interests of Mr Colby Hickey. 8 Mr Colby Hickey has a number of disabilities, which include autism spectrum disorder, Down's syndrome and hyperactivity disorder. He is unable to speak and uses facilitated communication to communicate effectively. His use of facilitated communication requires that he be accompanied by a person able to support one of his arms in a position appropriate to enable him to choose and press various letters on a screen in order to spell out his communications. He is also said to suffer from post-traumatic stress disorder, said to be as a result of previous assaults. 9 Mr Colby Hickey's claim against the respondents is in respect of the failure to provide services that were required by him, in particular, failure to make available anyone trained in applied behaviour analysis or anyone trained in facilitated communication. The failure to provide those services is said to contravene the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"), both as to the definition in s 5 (which involves less favourable treatment than is afforded to those without the disability in circumstances that are the same or not materially different) as well as by the definition in s 6 (which involves requiring a disabled person to comply with a requirement or condition with which that person cannot comply because of the disability, but with which others without the difficulty can comply and which is not reasonable in the circumstances). 10 It is necessary to deal with the requirement in r 9.71(2)(c) of the Federal Court Rules that the Court be provided with "an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity." That requirement was the subject of some remarks by Bromberg J in Wade v State of Victoria (No 2) [2012] FCA 1080. At [7]-[9], his Honour drew attention to the past consistent practice of courts permitting reliance on an opinion of a lawyer acting for the applicant in relation to the compromise of proceedings on behalf of people under a legal disability. His Honour took the view that there was ambiguity as to what was intended to be conveyed by the addition to the rules which came into operation in 2011 of the word "independent" in the requirements. His Honour took the view that a lawyer acting for the party concerned could be independent, as long as the lawyer is providing an opinion in furtherance of his or her duty to assist the Court and not in furtherance of a duty to a party in the proceeding. 11 His Honour took the view in that case that an opinion of Mr Hancock, who was acting for the disabled party in the proceeding, was nonetheless an opinion of an independent lawyer. In doing so, his Honour pointed out that there were substantial practical difficulties and likely costs involved in obtaining an opinion from a lawyer with no prior knowledge or familiarity with the proceeding. This is particularly the case in a proceeding such as the present, in which the settlement sum is not very large. If it were necessary to spend money obtaining the opinion of a lawyer who had no prior involvement with the proceeding, and who therefore had to be instructed in all of its details in order to give the necessary opinion, it would be highly inconvenient, as well as very expensive. I am prepared to follow Bromberg J's view and to accept that in the present case Mr Hancock, who acts for Mr Colby Hickey in the principal proceeding, is nonetheless capable of giving an opinion as an independent lawyer for the purposes of r 9.71(2)(c) of the Federal Court Rules. In case I am wrong in that view, like Bromberg J in Wade, I would dispense with the requirement in the rule for an independent lawyer, in order to allow me to use Mr Hancock's opinion in evaluating the settlement of the proceeding in this case. 12 The first issue to be dealt with is the practical difficulty that there are no pleadings in the principal proceeding. Information about the nature of the claim can be gleaned to a certain extent from the terms of the complaint made to the Australian Human Rights Commission, the making of which was a pre-requisite to entitlement to bring a proceeding in the Court. Having to rely on such a complaint immediately gives rise to the difficulty. It is apparent from the terms of the complaint that it was not drawn by a lawyer. Nor was it drawn by reference to the provisions of the Disability Discrimination Act particularly to the definitions relied on. 13 My experience in cases involving disabled applicants suggests that it is common for disabled people, and those who are concerned for their welfare, to take the view that they have been discriminated against because of the inadequacy of the provisions made, and the resources made available for, the education, advancement and living requirements of the disabled people. Those concerns are very real. The problem is that they are difficult to fit within the restricted definitions in the Disability Discrimination Act. Those concerns may have become somewhat easier to fit within those definitions since the "reasonable adjustments" provisions that were added to those definitions have come into operation, but they are still problematic. 14 By the time a complaint that has not been resolved in the Australian Human Rights Commission reaches the Court, there is obvious pressure on a lawyer who is charged with drawing a claim to try and fit all of the complaints within the definitions. Experience shows that this is very often an unsuccessful attempt. There have been proceedings of great complexity, involving long trials and, in some cases, complete or almost complete lack of success for the disabled person. How the complaints made on behalf of Mr Colby Hickey might have been interpreted in pleadings in the present case is not known. Nor, of course, is it known how the respondents would have met such pleaded claims with defences. 15 In an endeavour to overcome these difficulties, in his opinion, Mr Hancock has resorted to revealing communications that were made during the mediation as to what defences the respondents proposed to rely on. In my view, Mr Hancock should not have revealed those communications. It is fundamental to the successful operation of mediation, particularly in a Court that offers mediation by means of its own registrars, that the confidentiality of the mediation process, be maintained at all costs. It is true that Mr Hancock was in a difficult position in making any assessment of the likely success or failure of the proceeding on behalf of Mr Colby Hickey, without relying on what he knew from his presence in mediation sessions. This does not excuse the unprofessional revelation of confidential matters. It would have been appropriate if Mr Hancock had speculated in his opinion about what defence is likely to be relied on by the respondents. Such speculation is not so difficult for a lawyer who claims expertise in the area concerned. 16 My experience of cases involving disabled applicants in this Court, suggests that the case brought on behalf of Mr Colby Hickey would not have been easy. The practicalities of conducting a trial in which, no doubt, Mr Colby Hickey would want to give evidence, and in which he would be required to do so by means of his facilitated communication, would mean that the trial would be of very great length and would be very costly. The difficulties of establishing either less favourable treatment in circumstances that were the same or not materially different, or the absence of reasonableness of any requirement or condition that could be formulated in the circumstances, would be very real. The claim would face a real prospect of being unsuccessful, or of being only partially successful, with possible cost consequences in the way of the applicant or the litigation representative. 17 In his opinion, Mr Hancock, has raised questions of the certainty of outcome and the peace of mind of Mr Colby Hickey and his family. There is no doubt that matters such as this can be relevant to the interests of a disabled applicant. The normal stress of litigation must be magnified to a considerable extent in the case of many persons with disabilities. I take the view that Mr Hancock has perhaps given too much weight to the difficulties that would be experienced by Mr Raymond Hickey. Mr Raymond Hickey is Mr Colby Hickey's grandfather and is 87 years old. It is no doubt true that travelling from his home in Black Rock to consult lawyers from time to time would cause Mr Raymond Hickey some difficulty. I do not think that is a matter of very great weight when it comes to considering the interests of the family. Of more concern are matters that affect the domestic arrangements of a family in which a disabled applicant lives, and matters of the peace of mind of those who are directly involved in the care and the daily lives of those applicants. 18 The question of costs causes me some difficulty in the present case, too. Mr Hancock has informed me that he and his instructing solicitor act for Mr Colby Hickey on a no-win, no-fee basis. In an area such as this it is necessary for the Court to take care not to discourage lawyers from acting for deserving people. It is beneficial that lawyers are prepared to make available their services on a no-win, no-fee basis, particularly for clients whose interests are most deserving of being looked after. 19 No doubt, in order to enhance the attractiveness of the settlement, the parties to the principal proceeding have agreed that they should bear their own costs. There is no suggestion that any costs should be deducted from the settlement sum. There is, however, a frank disclosure in Mr Hancock's memorandum of opinion that a specified sum of money will be paid from other resources of Mr Colby Hickey to the solicitor concerned. Such an arrangement means effectively that the settlement will be reduced by the amount of that sum. I have considered whether I should refuse to approve the settlement because of that arrangement. I have decided, however, not to withhold approval. The arrangement that has been made involves Mr Colby Hickey's mother as his administrator. Any payments that she makes from whatever monies Mr Colby Hickey has would, as I understand it, be made under the supervision of VCAT in its guardianship jurisdiction. Accordingly, it will be necessary for the administrator to be conscious of that supervision and to be certain that she is acting properly in making any arrangement to pay the solicitor. In view of the need not to discourage solicitors from acting for disabled people, I think it would be wrong to prevent the administrator from making such an arrangement, subject to the supervision of her dealings as administrator. 20 Considering all aspects of the proceeding of which I am aware, I am content to accept the opinion of Mr Hancock that the agreement entered into by the deed of settlement dated 23 October 2012 is in the best interests of Mr Colby Hickey. 21 Accordingly, I am prepared to approve the agreement so that it can operate and be binding on Mr Colby Hickey. I am prepared to make the orders that were submitted by consent of the parties in this case to facilitate that result. Those orders are: 1. Pursuant to rule 9.70 of the Federal Court Rules 2011 (Cth), the settlement between the parties recorded in the deed of agreement exhibited as "REH-3" to the affidavit of Mr Raymond Hickey sworn on 23 October 2012 is approved. 2. The affidavits of Mr Raymond Hickey sworn on 17 and 23 October 2012 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 application made on behalf of the applicant in Federal Court proceeding number VID 128 of 2012 be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 1 November 2012