FEDERAL COURT OF AUSTRALIA Biasin v State of Victoria [2017] FCA 161 File number: VID 92 of 2016 Judge: KENNY J Date of judgment: 27 February 2017 Catchwords: PRACTICE AND PROCEDURE – application by litigation representative for approval of settlement – whether settlement in best interests of applicant Legislation: Australian Human Rights Commission Act 1985 (Cth) Disability Discrimination Act 1992 (Cth) Federal Court Rules 2011 (Cth) Guardianship and Administration Act 1986 (Vic) Cases cited: A on behalf of B v State of New South Wales (Department of Education and Training) (No 2) [2013] FCA 551 Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296 Button v CSL Limited [2014] FCA 601 Davies v State of South Australia [2015] FCA 428 Fisher v Marin [2008] NSWSC 1357 Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041 Moore v State of New South Wales [2014] FCA 477 Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525 Smith v Marriott Support Services [2013] FCA 312 Wade v State of Victoria (No 2) [2012] FCA 1080 Date of hearing: Heard on the papers Date of last submissions: 21 December 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Solicitor for the Applicant: Arnold Thomas & Becker Counsel for the First Respondent: C J Tran Solicitor for the First Respondent: Legal Services, Department of Health & Human Services Solicitor for the Second Respondent: Victorian Government Solicitor Solicitor for the Third Respondent: K & L Gates ORDERS VID 92 of 2016 BETWEEN: AMBER BIASIN (BY HER LITIGATION REPRESENTATIVE KAREN BIASIN) Applicant AND: STATE OF VICTORIA (DEPARTMENT OF HEALTH AND HUMAN SERVICES) First Respondent PUBLIC ADVOCATE (VICTORIA) Second Respondent MERRIMU SERVICES INC (REGISTRATION NUMBER A0011194N) Third Respondent JUDGE: KENNY J DATE OF ORDER: 27 FEBRUARY 2017 THE COURT ORDERS THAT: 1. Pursuant to r 9.70 of the Federal Court Rules 2011 (Cth), the settlement of this proceeding recorded in the Deed of Release marked as Annexure JR-1 to the affidavit of Mr Joseph Thomas Ridley dated 9 December 2016, be approved on condition that no costs associated with the litigation (whether party-party or solicitor-client or otherwise) be borne by the Applicant or her Litigation Representative. 2. The Applicant have leave to file a notice of discontinuance of this proceeding with no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KENNY J: Nature of the proceeding 1 Approval is sought for a settlement of this proceeding. The Court's approval of the settlement is required under r 9.70 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). 2 The applicant, Ms Amber Biasin, has a moderate to severe intellectual disability and features of autism spectrum disorder. The Victorian Department of Health and Human Services (DHHS) has provided Ms Amber Biasin with an Individual Support Package (ISP) since 2006. Merrimu Services Inc (Merrimu) has also provided support services to her. The Public Advocate (Victoria) was her appointed guardian in times relevant to the complaint giving rise to the proceeding. The relevant guardianship order was revoked by the Victorian Civil and Administrative Appeals Tribunal on 21 March 2016. 3 The ISP is a funding package, with goals and strategies. It was not in dispute that, with respect to the ISP, DHHS decided the content of the ISP and the amount of money to be provided. In Ms Amber Biasin's case, within DHHS, Case Management Services liaised with, planned and coordinated services through providers registered by DHHS. From time to time, the Behaviour Support Services team, within DHHS, was also involved in providing services to her. 4 In July 2015, in a complaint to the Australian Human Rights Commission (AHRC) on behalf of her daughter, Ms Karen Biasin claimed that DHHS and Merrimu did not provide a Functional Behaviour Assessment and Positive Behaviour Plan for Amber and that these omissions resulted in Amber being withdrawn from her day placement and having reduced access to leisure and community services. It was further said that this constituted unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (DDA). The complaint was subsequently terminated under s 46PH(1)(g) of the Australian Human Rights Commission Act 1985 (Cth) (AHRC Act). The AHRC issued a notice under s 46PH(2) of the AHRC Act on 10 December 2015. 5 A proceeding was commenced against the State of Victoria (the State), by originating application, under s 46PO of the AHRC Act on 29 January 2016. On 18 April 2016, the Court appointed Ms Karen Biasin the litigation representative for Ms Amber Biasin. The Court granted leave, on 6 May 2016, to join as further respondents the Public Advocate (Victoria) and Merrimu. 6 An amended originating application was filed, with leave, on 10 May 2016 and points of claim were filed two days later. In substance, the claim for Ms Amber Biasin was for direct discrimination, as defined in s 5 of the DDA. It was alleged that the State and Merrimu had discriminated against her in the provision of services contrary to s 24 of the DDA. In broad terms, the alleged discrimination was said to arise from the failure of the State and Merrimu to tailor their services to meet her individual needs pursuant to s 24(b) and (c) of the DDA, "thereby negatively affecting Amber's ability to take full enjoyment of, and full benefit from those services, and causing her harm/detriment". This failure was said to be the failure to provide reasonable adjustments through the provision of a Functional Behaviour Assessment by a qualified person and, in the case of the State, subsequently a Behaviour Support Plan and, in the case of Merrimu, through the provision of trained staff able to work effectively with her. Relying on s 122 of the DDA, it was also alleged that the Public Advocate (Victoria) had aided or permitted the State and Merrimu to withhold the adjustments and thereby contravene the DDA and had breached responsibilities under the Guardianship and Administration Act 1986 (Vic). Declaratory relief, damages and costs were sought. 7 In Points of Defence filed in May and June 2016, the State, Merrimu and the Public Advocate (Victoria) denied Ms Amber Biasin's claim that they had contravened the DDA or, in the case of the Public Advocate (Victoria), breached responsibilities under the State legislation. Amongst other things, the State stated, in its Points of Defence, that a Behaviour Support Assessment and Functional Behaviour Assessments had in fact been prepared by qualified people, both before and after the complaint to the AHRC, and that the preparation of a Positive Behaviour Support Plan had been sought from a qualified person in May 2016. 8 The parties attended mediation in July 2016. The matter did not resolve. A trial was scheduled for 28 November 2016, on an estimate of seven days. In early November 2016, however, the parties informed the Court that the parties had reached a settlement. Orders were subsequently made vacating the trial date, and, later, for the filing of the current interlocutory application, evidence and submissions. It was further ordered that this application be heard on the papers. The present application 9 Rule 9.70(1) of the Federal Court Rules requires Ms Karen Biasin, as Amber's litigation representative, to apply to the Court for approval of the settlement agreement: see also r 26.12(4). If the Court approves the agreement, the agreement is binding on Ms Amber Biasin: see r 9.70(2). If the Court does not approve the agreement, the agreement is not binding on her: see r 9.70(4). 10 Ms Karen Biasin applied for an order approving the agreement by an application dated 9 December 2016. The application indicated that it was made under r 7.11(2), by an "Interested Person for approval of agreement for person under a legal incapacity". Since, however, Ms Karen Biasin was her daughter's litigation representative, the application was required to be made under r 9.70, in conformity with r 9.71. Nothing turns on this, however, as the requirements of rr 9.70 and 9.71 have otherwise been met. The application is to be treated as made under r 9.70. 11 The application was supported by an affidavit of Mr Joseph Thomas Ridley, solicitor for Ms Karen Biasin and Ms Amber Biasin, affirmed on 9 December 2016. A copy of the deed of release and a legal opinion of a lawyer were annexed to his affidavit. The legal opinion supported the approval of the settlement contained in the deed of release. Orders were sought (and made) to preserve the confidentiality of the deed of release and the legal opinion. 12 The State supported the application for reasons set out in its submissions, filed with leave, dated 21 December 2016. Also before the Court was an affidavit, filed with leave, sworn by Ms Stella Stasinopoulos, a team leader in Disability Client Services, Individual Family Support, Hume and Moreland Area, DHHS. Consideration 13 In deciding whether or not to approve a settlement under r 9.70 of the Federal Court Rules, for the purpose of making it binding on an applicant under a legal disability, it is well recognised that the Court must be satisfied that the settlement is in the best interests of the applicant, or beneficial to her interests: see, for example, Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 at [4] (Davies J); Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525 at [27] (Mortimer J); Davies v State of South Australia [2015] FCA 428 at [6] (Besanko J); Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296 at [10] (Mortimer J); Button v CSL Limited [2014] FCA 601 at [31] (Barker J); Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041 at [12] (Tracey J); and Smith v Marriott Support Services [2013] FCA 312 at [12] (Tracey J); see also Fisher v Marin [2008] NSWSC 1357 at [29] (Rothman J). 14 The Court must determine this question for itself: see Fisher v Marin [2008] NSWSC 1357. In consequence, the Court need not accept the opinion of an independent lawyer supplied by the litigation representative in conformity with r 9.71(2)(c) of the Federal Court Rules. 15 In this case, Ms Karen Biasin, as the litigation representative, relies on the written opinion of a lawyer who was involved in the proceeding as counsel for Ms Amber Biasin. This raises the question of whether the author of the opinion meets the description "independent lawyer" in r 9.71(2)(c). The same question has arisen in a similar way in other cases: see Wade v State of Victoria (No 2) [2012] FCA 1080 at [9] (Bromberg J) and Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 at [3] (Davies J). There is much force, so it seems to me, in the observations of Bromberg J in Wade v State of Victoria (No 2) [2012] FCA 1080 at [8]-[9] that: 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. 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". 16 Having read the lawyer's opinion provided by Ms Karen Biasin for Amber, I would accept that it is given in furtherance of the lawyer's duty to assist the Court. If r 9.71(2)(c) requires that the application be accompanied by the opinion of a lawyer who has no previous involvement in the proceeding, then, having regard to the reasons set out in the opinion, the issues in the proceeding and the settlement itself, I would dispense with the requirement that the lawyer have no such previous involvement and permit the litigation representative to rely on the opinion that she has tendered in discharge of the requirement in r 9.71(2)(c). 17 The opinion concluded that the settlement agreement was in Amber's best interests. It did so after examining the issues that fell for determination in the proceeding, the circumstances in which the claims against the State, Merrimu and the Public Advocate (Victoria) were made, and the defences made by each of these respondents. The opinion also considered Amber's prospects of success overall, the inherent uncertainties of the litigation, the costs exposure associated with a loss, the quantum of prospective damages in the event that Amber were successful, the emotional distress from the litigation, and other costs implications. 18 Considering the issues that would fall for resolution and the other evidence before the Court, including the legal opinion to which I have just referred, it seems to me that the conclusion reached in the opinion is sound. 19 The opinion makes a fair assessment of the prospects of success, in terms of liability and damages if successful. It appears, however, that there are some significant factual disputes between Ms Amber Biasin on the one hand and the three respondents on the other. There are risks associated with demonstrating causation on a number of levels. 20 Even if the likely quantum of damages is viewed as a secondary factor (cf. A on behalf of B v State of New South Wales (Department of Education and Training) (No 2) [2013] FCA 551 at [5] (Griffiths J)), assuming Ms Amber Biasin were successful, it seems that damages are likely to be comparatively modest, particularly when the expense of a seven-day trial is borne in mind. In any event, there are inherent uncertainties in any such prospective assessment of damages. 21 Further, there is evidently a risk of exposure to costs in the event that the litigation is unsuccessful, especially with three respondents: cf. Moore v State of New South Wales [2014] FCA 477 at [17] (Yates J). 22 Particularly in a case of this kind, I accept that, as the author of the opinion notes, the emotional and psychological distress occasioned by litigation is a factor to be borne in mind in considering the risks attending the pursuit of litigation to final judicial determination. That the settlement is for the benefit of Ms Amber Biasin is further supported, in this connection, by the evidence given by Ms Stasinopoulos in her affidavit of 19 December 2016. This evidence is that Ms Amber Biasin had a functional behaviour assessment by a Board Certified Behaviour Analyst in 2016 and is now receiving supports funded out of her Individual Support Package. Further, there is close collaboration between members of the Disability Client Services, Individual Family Support team in the relevant area and Ms Karen Biasin with regard to Amber's supports, with the focus on Amber's well-being. 23 Finally, I have had careful regard to the terms of the settlement agreement (the terms of which remain confidential), particularly as the agreement in this case differs in one significant respect from the settlement agreements that the Court is commonly requested to approve in cases of this kind. On the evidence before the Court, however, including the settlement agreement and the legal opinion already discussed, following the settlement, Ms Amber Biasin and her mother, Ms Karen Biasin, will not be called on to pay costs of any kind associated with the litigation. Having regard to this circumstance and to the matters already mentioned, I am satisfied that the agreement is nonetheless in Ms Amber Biasin's best interests. 24 In all the circumstances of the case, and giving weight to the legal opinion discussed earlier and to the fact that Amber, through her mother and litigation representative, Ms Karen Biasin, wishes to accept the settlement, I am satisfied that the settlement contained in the deed of release should be approved because the settlement is beneficial to, and in the best interests of, Ms Amber Biasin. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 27 February 2017