Tsirigotis v State of Victoria (Department of Education and Training)

• Jurisdiction: Australia Federal only
• Judgment Date: 10 December 2020
• Neutral Citation: [2020] FCA 1771
• Court: Federal Court
• Date: 10 December 2020

Federal Court of Australia

Tsirigotis v State of Victoria (Department of Education and Training) [2020] FCA 1771

File numbers:	VID 1514 of 2018VID 679 of 2019VID 1159 of 2019
Judgment of:	ANASTASSIOU J
Date of judgment:	10 December 2020
Catchwords:	PRACTICE AND PROCEDURE – application by litigation guardian for approval of settlement – claims concerned allegations of disability discrimination – whether settlement should be approved – considerations relevant to approval of such a settlement – whether appropriate to make confidentiality orders – settlement approved
Legislation:	Disability Discrimination Act 1992 (Cth), ss 5 and 6 Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AG(1)(a) Federal Court Rules 2011 (Cth), r 9.63, 9.70, 9.71
Cases cited:	Fisher v Marin [2008] NSWSC 1357 Hartigan-Dunn v State of Victoria (Department of Education and Early Childhood Development) [2019] FCA 1146 James v WorkPower Inc [2019] FCA 1239 Kemp v State of Victoria (Department of Education and Training) [2018] FCA 1327 Lewis v The State of Victoria (Department of Education and Training) [2019] FCA 714 Murrell v Mansfield Autism Statewide Services [2020] FCA 943 Tsirigotis v The Ivanhoe Grammar School [2018] FCA 2038
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	21
Date of last submission:	4 December 2020
Date of hearing:	Determined on the papers
Counsel for the Applicants:	Mr T. Jeffrie
Solicitor for the Applicants:	Roberts Gray Lawyers
Counsel for the Respondents:	Ms E. Latif
Solicitor for the Respondents:	MinterEllison

ORDERS

		VID 1514 of 2018 VID 679 of 2019 VID 1159 of 2019
BETWEEN:	STEPHANIE TSIRIGOTIS (BY HER NEXT FRIEND DINA TSIRIGOTIS) First Applicant ; DINA TSIRIGOTIS Second Applicant
AND:	STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) First Respondent ; CHRISTOPHER THOMPSON Second Respondent

order made by:	ANASTASSIOU J
DATE OF ORDER:	10 DECEMBER 2020

THE COURT ORDERS THAT:

1. The settlement of these proceedings, as set out in the Deed of Release marked as Annexure “DT-2” to the affidavit of Dina Tsirigotis, affirmed 2 November 2020, be approved pursuant to r 9.70 of the Federal Court Rules 2011 (Cth).

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 “DT-2” and “DT-3” to the affidavit of Dina Tsirigotis, affirmed 2 November 2020, must be treated as confidential to the parties to this proceeding and until further order:

   1. must be marked as confidential to the parties on the Court’s Electronic Court File; and

   2. must not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

introduction

1. By an application dated 4 November 2020, Mrs Dina Tsirigotis, the First Applicant’s mother and litigation guardian, applies for approval of a settlement pursuant to r 9.70 of the Federal Court Rules 2011 (Cth) and seeks confidentiality orders under s 37AF of the Federal Court Act 1976 (Cth) (approval application). The application is made with the Respondents’ consent.

2. For the following reasons, I am satisfied that the settlement is in the best interests of the First Applicant and should be approved. I am also satisfied that it is appropriate to make the confidentiality orders sought by the parties, in order to prevent prejudice to the proper administration of justice: see s 37AG(1)(a) of the Act.

background Relevant circumstances

3. The First Applicant, Stephanie Tsirigotis, was born on 3 July 2007 and is currently 13 years old. The First Applicant has a number of disabilities, including autism spectrum disorder and imputed borderline IQ. Mr Frank Tsirigotis and Mrs Tsirigotis are the First Applicant’s primary caregivers.

4. From February 2018 to June 2019, the First Applicant attended Alphington Primary School, a school operated and administered by the State of Victoria and Department of Education and Training. However, since proceedings were commenced in November 2018, the First Applicant’s circumstances, as well as those of her family, have changed significantly.

5. The First Applicant no longer attends that school. She is currently undertaking a placement at Irabina Autism Services, which is funded by the National Disability Insurance Scheme (NDIS). However, it is anticipated that the First Applicant will transition back to attending a school operated by the State in due course. Further, Mrs Tsirigotis has recently been diagnosed with a serious illness, a circumstance which undoubtedly bears upon the First Applicant’s best interests.

Procedural history

6. The First Applicant and Mrs Tsirigotis (together, the Applicants) commenced three separate but related proceedings in this Court:

1. Stephanie Tsirigotis (by her next friend, Dina Tsirigotis) and Dina Tsirigotis v State of Victoria (Department of Education and Training) and Christopher Thompson (VID1514/2018) (the First Federal Court Proceeding);

2. Stephanie Tsirigotis (by her next friend, Dina Tsirigotis) and Dina Tsirigotis v State of Victoria (Department of Education and Training) and Christopher Thompson (VID679/2019) (the Second Federal Court Proceeding); and

3. Stephanie Tsirigotis (by her next friend, Dina Tsirigotis) v State of Victoria (Department of Education and Training) (VID 1159/2019) (the Third Federal Court Proceeding),

collectively, the Proceedings.

7. In summary, the Proceedings concern allegations of unlawful discrimination and victimisation, which the Applicants allege occurred while the First Applicant attended Alphington Primary School. The Amended Statement of Claim is a lengthy and complex document, which alleges, inter alia, direct and indirect discrimination within the meaning of ss 5 and 6 of the Disability Discrimination Act 1992 (Cth).

8. The Respondents have previously foreshadowed that aspects of the Applicants’ pleaded claims were fundamentally deficient and indicated they would apply to the Court for the pleaded case to be struck out, or for the provision of further and better particulars. However, prior to any interlocutory applications being heard by the Court, the parties agreed to settle the Proceedings on terms set out in the Deed of Release.

9. All parties consider that the settlement is in the best interests of the First Applicant and that settlement should occur before the parties incur significant additional costs in the matter, including in relation to interlocutory applications, re-drafting of claims and / or the resolution of the matter at trial.

10. For completeness, I note that Mrs Tsirigotis made an application pursuant to r 9.63 of the Rules to be appointed the First Applicant’s litigation representative in the First Federal Court Proceeding on 21 February 2019. For reasons that are not presently clear,...