Federal Court of Australia Morsman by his litigation representative Bampton v State of Victoria (Department of Education and Training) [2021] FCA 374 File number(s): VID 810 of 2018 Judgment of: KERR J Date of judgment: 16 April 2021 Catchwords: PRACTICE AND PROCEDURE – approval of proposed agreement for the settlement of a proceedings conducted by a litigation representative on behalf of Applicant – whether prior involvement of lawyer providing advice precludes reliance upon that advice Legislation: Federal Court of Australia Act 1976 (Cth) s 37AF Federal Court Rules 2011 (Cth) rr 1.34, 9.71(2)(c) Cases cited: Jones v State of Victoria [2014] FCA 1404 Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041 Wade v State of Victoria (No 2) [2012] FCA 1080 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 11 Date of hearing: Determined on the papers Solicitor for the Applicant: The Applicant was represented by his litigation representative, Ms Bampton Solicitor for the Respondent: Allens ORDERS VID 810 of 2018 BETWEEN: RILEY MORSMAN BY HIS LITIGATION REPRESENTATIVE PATRICIA BAMPTON Applicant AND: STATE OF VICTORIA DEPARTMENT OF EDUCATION AND TRAINING Respondent order made by: KERR J DATE OF ORDER: 16 April 2021 THE COURT ORDERS THAT: 1. The settlement of these proceedings, as set on in the Deed of Release marked as Annexure "PB-1" to the affidavit of Patricia Bampton, affirmed 17 March 2021, be approved. 2. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, Annexures "PB-1" and "PB-2" to the affidavit of Patricia Bampton, affirmed 17 March 2021, be treated as confidential to the parties to this proceeding and until further order: (a) Are to be marked as confidential to the parties on the Court's Electronic Court File; and (b) Are not to be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript. 3. Compliance with r 9.71(2)(c) of the Federal Court Rules 2011 (Cth) be dispensed with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KERR J: 1 The Applicant by his litigation representative has filed an interlocutory application seeking the approval of the Court for him settle these proceedings in terms set out in Deed of Release as annexed to an affidavit of his litigation representative affirmed on 17 March 2021. In support of his application his litigation representative also has annexed to her affidavit of that date a copy of an opinion provided by a barrister, Mr DJ Hancock, in which he opines, after stating he has taken into account the state the proceedings have reached, the relative strengths and weaknesses of the cases for both parties and the potential costs issues, that the acceptance of the offer made by the Respondent as is reflected in the Deed of Release proposed to be entered into is in the Applicant's best interests. 2 The Applicant by his litigation representative also seeks an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) until further order that the annexures referred to above must be marked as confidential to the parties on the Court's Electronic Court File and not be made available for public inspection on the grounds that such an order is necessary to prevent prejudice to the proper administration of justice. 3 I am satisfied that the Court should approve the proposed settlement of these proceedings and should make the confidentiality orders sought. 4 The litigation representative of a person under a legal incapacity seeking the approval of a court for a settlement must provide the opinion of an independent lawyer that the settlement is in the best interests of the person under a legal incapacity; Federal Court Rules 2011 (Cth) r 9.71(2)(c). As has been not infrequently noted that expression has given rise to difficulty. A number of judgments have concluded that the requirement of independence may be best understood as a reference to an opinion provided in furtherance of the lawyer's duty to assist the Court, rather than requiring an absence of prior knowledge or familiarity with the proceeding: see Wade v State of Victoria (No 2) [2012] FCA 1080; Modra v State of Victoria (Department of Human Services Victoria & Department of Education and Early Childhood Development) [2013] FCA 1041; Jones v State of Victoria [2014] FCA 1404. 5 The difficulty referred to above is material in this instance because the lawyer who provided the required opinion in this proceeding, Mr Hancock, was involved in the initial drafting of the pleadings and I do not doubt his advice has been sought on other occasions. 6 That acknowledged there are strong practical reasons to accept that Ms Bampton, the Applicant's litigation representative, was entitled to have sought Mr Hancock's opinion rather than instructing someone who would have had an entire absence of prior knowledge or familiarity with the proceedings. It would have been significantly more costly for her to have had to brief new counsel. Given the complexity of the issues involved, which from my experience as the docket judge managing this matter through its earlier interlocutory stages, I am aware not all of which are self-evident, some significant additional time as well as money would have been expended in obtaining an opinion from counsel with no prior knowledge of or familiarity with the proceeding. 7 With the benefit of that familiarity I have taken care to give close attention both to the proposed terms of settlement and to the terms of Mr Hancock's opinion. 8 The approval of a settlement does not require the judge to determine what might be decided on a trial – it requires an assessment of whether the settlement itself is a reasonable one and for the benefit of the person under a disability having regard to all of the circumstances. 9 In that context I discern nothing in Mr Hancock's opinion as would give rise to any judicial scepticism of want of professional impartiality on his part. His opinion is adequately detailed. Nothing in its reasoning with respect to the respective strengths and weakness of the parties' cases is inconsistent with what I understand of those questions having regard to what I have learnt of it through my case management of its earlier stages. I am satisfied that Mr Hancock's prior involvement does not require me to find any actual lack of independence in the legal advice he has tendered to Ms Bampton as to the merits of the proposed settlement. 10 However, lest the provisions of r 9.71(2)(c) apply otherwise as I understand them to, I will dispense with compliance of that rule pursuant to r 1.34. I am satisfied the settlement itself is a reasonable one and for the benefit of the person under a disability having regard to all of the circumstances. I will approve the agreement. 11 The order sought for confidentiality should be made. It is in the interests of justice that parties be permitted to settle matters of this kind in issue on agreed terms. The capacity to achieve such settlements would be greatly reduced if it was necessary to disclose the details and the legal advice upon which its approval has been sought. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. Associate: Dated: 16 April 2021