FEDERAL COURT OF AUSTRALIA Abela v State of Victoria [2015] FCA 902 Citation: Abela v State of Victoria [2015] FCA 902 Appeal from: Abela v State of Victoria [2013] FCA 832 Parties: BEAU ABELA (BY HIS LITIGATION REPRESENTATIVE, PETER ABELA) v STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) File number: VID 950 of 2013 Judge: NORTH J Date of judgment: 24 July 2015 Legislation: Disability Discrimination Act 1992 (Cth), ss 5, 6, 22(2) Disability Standards for Education 2005 (Cth) Federal Court Rules 2011 (Cth), rr 1.34, 1.35, 9.70, 9.71 Cases cited: Jones v State of Victoria [2014] FCA 1404 Walker v State of Victoria (2011) 279 ALR 284; [2011] FCA 258 Date of hearing: 24 July 2015 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: Mr P Abela appeared on behalf of Beau Abela Counsel for the Respondent: Mr J L Bourke QC Solicitor for the Respondent: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 950 of 2013 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: BEAU ABELA (BY HIS LITIGATION REPRESENTATIVE, PETER ABELA) Appellant AND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) Respondent JUDGE: NORTH J DATE OF ORDER: 24 JULY 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Pursuant to Rule 1.35 of the Federal Court Rules 2011 (Cth) (the Rules), the Respondent be permitted under Rule 9.70 of the Rules to apply to the Court for approval of a deed of release between the Appellant and the Respondent dated 24 July 2015 that sought to compromise the appeal from the orders of Tracey J made 16 August 2013 (the Appeal) (the Compromise). 2. Pursuant to Rule 1.34, compliance with Rule 9.71(2)(c) of the Rules be dispensed with. 3. The settlement of the Appeal as set out in the Compromise is approved. 4. The annexures to the affidavit of Rory Jolley affirmed 21 July 2015 and the Compromise be treated on a confidential basis by being placed in a sealed enveloped marked "NOT TO BE OPENED WITHOUT THE PERMISSION OF A JUDGE OF THIS COURT". 5. The Appeal be otherwise dismissed without adjudication of the merits. 6. There be no order 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 950 of 2013 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: BEAU ABELA (BY HIS LITIGATION REPRESENTATIVE, PETER ABELA) Appellant AND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) Respondent JUDGE: NORTH J DATE: 24 JULY 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant, Beau Abela (Beau), has, through his litigation representative, his father Peter Abela (Mr Abela), instituted an appeal against orders made by Tracey J on 16 August 2013, in Abela v State of Victoria [2013] FCA 832. Those orders dismissed claims made by Beau against the respondent, the State of Victoria (the State), concerning defects which he alleged in his education through the State education system. Beau alleged that the State, during the relevant period, committed various acts and omissions constituting indirect and direct discrimination under the Disability Discrimination Act 1992 (Cth) (the DDA). He also complained that the State had contravened the DDA by failing to comply with the Disability Standards for Education 2005 (Cth) (the Disability Standards) prescribed under that Act, which related to reasonable adjustments, enrolment, participation, curriculum development and the provision of support services. 2 Before the Court is an application under r 9.70 of the Federal Court Rules 2011 (Cth) (the Rules) for approval of an agreement made on 24 July 2015 between Mr Abela on behalf of Beau and the State to resolve the appeal. The application has several unusual features. Rule 9.70 provides that the application be made by the litigation representative. In this case, Mr Abela is unrepresented and, in order to bring the matter before the Court, the State offered to make the application and file the required documents. Mr Abela agreed to this course. It was to his advantage and to the advantage of Beau. It was offered and accepted in a spirit of cooperation. The Court has power to dispense with compliance with the Rules (r 1.34). This power should be exercised to allow the State to initiate the application under r 9.70 in the circumstances of this case. 3 Rule 9.71(2)(c) of the Rules requires that the application for approval of the agreement must be accompanied by an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity. In the circumstances of this case it is appropriate not to require compliance with that rule. There has been a lengthy trial occupying one month. The issues considered in that trial are set out in a comprehensive judgment delivered by Tracey J. The issues raised by the appeal are specified in a notice of appeal which appears to have been drawn with legal assistance. The Court therefore is in a better position to assess the agreement than where such an application is made before a trial, judgment, and the initial stages of an appeal. It is possible, from what is already known, for the Court to form a view about the circumstances and possible outcome of the appeal, sufficient for the purposes of deciding the approval application. To insist upon compliance with r 9.71(2)(c) would impose an oppressive burden on Mr Abela in that an independent counsel previously unconnected with the case would be required to consider a very lengthy transcript of the trial. 4 Whilst the terms of the agreement include a provision that it is to be kept confidential, it is necessary to say something about the agreement in general terms in order to explain the basis of the assessment of whether the agreement is in the best interests of Beau. 5 The general scheme of the agreement is that the State will fund expenses up to a specified amount in respect of a service, good or benefit that involves the education, training, personal advancement, including in relation to self-esteem, health or employment prospects or advancement of Beau, including the acquisition of a motor vehicle for a specified maximum cost. The agreement also provides that if Mr Abela makes a request, which he is not required to do, the State will make a payment to him up to a stated maximum to be used for the benefit of Beau. The agreement also provides that the State will not enforce the costs order made by Tracey J on 16 August 2013. The State estimates that it incurred costs of the trial exceeding $800,000. 6 Whether the terms of the agreement are in the best interests of Beau requires the Court to make some assessment of the likely outcome of the appeal. The judgment of the primary judge first analysed the legal basis of the claims by reference to of the judgment in Walker v State of Victoria (2011) 279 ALR 284; [2011] FCA 258 (Walker) and consequently found that the way in which the proceeding was pleaded did not intersect with the statutory provisions under ss 5, 6, 22(2)(a) and 22(2)(c) of the DDA which relevantly provided as follows: 5 Direct disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: a. the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and b. the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. 6 Indirect disability discrimination For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: a. with which a substantially higher proportion of persons without the disability comply or are able to comply; and b. which is not reasonable having regard to the circumstances of the case; and c. with which the aggrieved person does not or is not able to comply. 22 Education (2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability……: a. by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or b. …; or c. by subjecting the student to any other detriment. Then, his Honour, as an alternative, addressed the facts on the basis of a claim, which he formulated as best he could in the interests of Beau, based on the statutory provisions. The findings of fact made by his Honour led him to reject the alternative claim. 7 There were some elements of the cause of action which the primary judge did not address because the case faltered at an earlier stage. For instance, it was not necessary for his Honour to address whether steps taken by the State amounted to reasonable adjustments under s 5(2) of the DDA. 8 Thus, Beau faces considerable obstacles to success on appeal. It may be that he could have successfully attacked the legal analysis made by the primary judge, but there is no certainty that such an attack would succeed. Even if he did so, in order to succeed on the appeal generally, Beau would have to overturn the fact findings made by the primary judge. The deference paid to the findings of a trial judge militates against a successful challenge on the facts. But even if there was a successful challenge on the facts, the inevitable result, both because of the nature of the extensive fact findings and because some major elements of the cause of action were not resolved by the primary judge, would be that the matter would be remitted for a retrial. In Jones v State of Victoria [2014] FCA 1404 the Court took into account, in favour of approving an agreement, the prospect of a long trial and the necessary emotional burden that would impose on the applicant and on his litigation representative. The situation in this case is far worse because there has already been a long trial. That trial involved several false starts with the attendant emotional strain caused by that situation. The prospect of starting all over again is something to be avoided if at all possible. If the agreement is not approved, and the appeal fails, then Beau would face the payment of the costs of the trial as well as the costs of the appeal. 9 In summary, then, there are strong reasons, provided that the terms of the agreement are otherwise satisfactory, for this appeal to be resolved. Beau should be left to move on to addressing his unfortunate position without looking backwards to re-agitate the circumstances which brought him to that position. It is to this end that the terms of the agreement attempt to address Beau's interests for the future. 10 There is a good deal of creativity in the way in which the terms are structured. For a start, the expenditure is restricted in two ways. First, the terms require a claim to be made by Mr Abela, or other legal guardian of Beau. Secondly, disbursements will only be paid where they are in respect of a good, service or benefit that involves education, training, personal advancement, including in relation to self-esteem, health or employment prospects or advancement of Beau. These two conditions are particularly important in the present case. Beau is 22 years old. He has had a very unfortunate education experience and is in a position where he needs assistance to develop whatever capacities he has. He has a significant learning difficulty which affects his everyday functioning in society. The position today is that Beau Abela is unable to read or write. The conditions of the agreement address that issue. The disbursements are limited by subject matter to items which focus on what Beau needs to redress the circumstances which gave rise to the litigation. Claims for payments will be made by Mr Abela. It is most important to say something about Mr Abela because it bears upon whether the agreement should be approved. Mr Abela has appeared on a number of occasions in the course of the matter. He presented as a ferocious defender of his son's right to have a proper education. There is no doubt that Mr Abela has his son's interests at heart. He has undertaken many years of litigation and borne the attendant frustration. His actions in support of his son have been quite outstanding. Mr Abela has exhibited a single-minded dedication to his son's welfare and support. It is inconceivable that he will not act in the interests of Beau in the administration of the fund. 11 The agreement involves another unusual feature. The way in which the obligations of the State are structured mostly keeps away from Mr Abela and Beau the fruits of the agreement. This seems to have been done for a particular purpose. An earlier version of the agreement placed the proceeds of the settlement in the hands of the parties directly. When the earlier version of the agreement was before the Court, there was concern about the question of claims for legal costs. The issue arose whether the agreed sum might be claimed by lawyers who previously acted in the case and as a result the fruits of the litigation would not be available to benefit Beau. That led the State acting in a cooperative way with Mr Abela, and no doubt in its own interests as well, to make inquiries of the lawyers involved to see what claims for costs might be made. 12 It is unnecessary to set out the details of the various claims and the basis for them in detail. It is sufficient to indicate that potentially the largest claim would come from counsel who acted in the trial. It was contended by Access Law, a firm which acted for Beau prior to the trial, that counsel were directly retained, via the firm as an agent, and therefore the firm had no liability for their fees. Access Law had ceased acting in the matter approximately two weeks prior to the commencement of the trial. Access Law also provided a speculative costs agreement which it claimed entitled it to the payment of legal costs. In support of the earlier form of agreement, the State, at its own expense, obtained the advice of counsel about the risk to Mr Abela and Beau that the amount placed in their hands would be available to the lawyers who acted for Beau, including Access Law and counsel who acted at trial. 13 Counsel provided an opinion that Access Law, under the written costs agreement, would have a lien on the settlement sum for payment of costs. Were that the case, and if the settlement sum were open to be claimed by Access Law and counsel, then the Court indicated that there was a very low likelihood that the agreement would be approved because in those circumstances there was little incentive on the part of Beau to give up his chances, even if not great, of succeeding on appeal. In effect, he would have been running the appeal largely for the benefit of the lawyers. The risk that Beau or Mr Abela would face payment of the State's costs is low because neither Beau nor Mr Abela has assets to meet a claim for costs. 14 The potential claims for legal costs have less impact on the question of approval of the current form of the agreement. Under this agreement, it may be that no amounts at all are paid to Mr Abela or Beau and would therefore no funds would be placed in their hands and thus available to satisfy a lien. The way the agreement is structured thus has benefits for Beau. It should, however, be said that despite the view expressed by counsel, the prospect that Access Law or counsel acting in the trial could ultimately successfully claim costs against Beau or Mr Abela is remote. Whilst the Court has not heard argument from the lawyers concerned, it is striking that the case was brought in the way it was, given the judgment in Walker and the way the primary judge articulated the defects in the case. It would appear very likely that Mr Abela would have a defence against any claim for costs on the basis of negligence. That is to leave aside entirely the dubious morality that would attend any such claim where, in effect, the costs would be claimed for a case which failed at trial. Furthermore, there is a real argument as to whether Mr Abela was liable in any event because it now appears that he was never properly appointed at the trial stage as litigation representative. Moreover, Beau, as distinct from Mr Abela, would not appear to be at risk of any claim for costs because he was under a disability and not at that stage capable of entering into a binding legal obligation, either by himself or through a representative acting on his behalf. 15 For those reasons the agreement in the present form is beneficial to Beau and therefore should be approved. In doing so, the Court reiterates the very significant contribution that Mr Abela has made from his laser-like focus on the interests of his son, not only through eight years of litigation, but, apparently, from when Beau was eight or nine years old and started enduring difficulties at school. At the same time in this part of the case the State, in both coming to the agreement and in taking the steps to have the agreement approved, has acted admirably. The unfortunate situation of Beau, a citizen of the State of Victoria, with very considerable learning difficulties, is something that should be addressed by a sympathetic State. The State's actions in seeking to bring an end to this litigation have been done in a humane, cooperative and creative way. For that, counsel, those instructing and those who made the decisions leading to the agreement are to be congratulated. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 24 August 2015