FEDERAL COURT OF AUSTRALIA

 

Devers v Kindilan Society (ACN 004 947 782) [2010] FCAFC 72

Citation:		Devers v Kindilan Society (ACN 004 947 782) [2010] FCAFC 72
Appeal from:		Devers v Kindilan Society [2009] FCA 1392
Parties:		JANE DEVERS v KINDILAN SOCIETY (ACN 004 947 782)
File number(s):		VID 907 of 2009
Judges:		RYAN, MANSFIELD AND MCKERRACHER JJ
Date of judgment:		21 June 2010
Date of hearing:	7 May 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	138
Counsel for the Appellant:	Mr D Perkins with Mr D Hancock
Solicitor for the Appellant:	Access Law
Counsel for the Respondent:	Mr M P McDonald SC with Mr R A Millar
Solicitor for the Respondent:	Middletons

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 907 of 2009

 

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	JANE DEVERS Appellant
AND:	KINDILAN SOCIETY (ACN 004 947 782) Respondent

 

JUDGES:	RYAN, MANSFIELD AND MCKERRACHER JJ
DATE OF ORDER:	21 JUNE 2010
WHERE MADE:	MELBOURNE

 

 

THE COURT ORDERS THAT:

 

 

1.                  The appeal be dismissed.  

2.                  The appellant is to pay the costs of the respondent, to be taxed if not agreed. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 907 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	JANE DEVERS Appellant
AND:	KINDILAN SOCIETY (ACN 004 947 782) Respondent

 

JUDGES:	RYAN, MANSFIELD AND MCKERRACHER JJ
DATE:	21 june 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1                     This appeal arises from a dismissal of a discrimination claim (Devers v Kindilan Society (2009) 263 ALR 433).  The proceeding before the primary Judge arose pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) following termination of the initial complaint to the Human Rights and Equal Opportunity Commission. 

2                     The appellant has been disabled by being profoundly deaf since birth.  She commenced limited voluntary employment in 2003 with the respondent, a charitable organisation assisting disabled people.  A month later she was engaged on a paid but quite limited part time basis.  During the five years of employment to which the proceeding relates, despite the fact that her presence in the workplace was occasional only, the appellant generated a substantial number of grievances about a variety of factors at work.  Some of those concerns were related to the discrimination claim that came before the primary Judge.  Others were of a more general nature unconnected with the claim.  The trail of correspondence reveals unfortunate disharmony and tension.  

3                     Regrettable though that may be, the circumstances did not, according to the primary Judge, demonstrate discrimination at law.   The claim failed for several reasons, one of which was that the primary Judge found the evidence of the appellant confused and unreliable.

4                     The appeal challenges the reasoning and process of the primary Judge at numerous levels, although there is some overlap between them.  For the reasons which follow, the primary Judge is not shown to have erred.

STATUTORY FRAMEWORK

5                     The appellant alleged that the respondent discriminated against her, by reason of her disability, in her employment with the respondent over a five year period from September 2003 to October 2008.  The appellant claimed that the respondent had contravened ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (the Act).  Relevantly to this appeal, those provisions provide 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

(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:

(a)        the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)        because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)        the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(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 requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)        because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)        the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)        Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)        For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

15        Discrimination in employment

(1)        It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:

(a)        in the arrangements made for the purpose of determining who should be offered employment; or

(b)        in determining who should be offered employment; or

(c)        in the terms or conditions on which employment is offered.

(2)        It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:

(a)        in the terms or conditions of employment that the employer affords the employee; or

(b)        by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c)        by dismissing the employee; or

(d)        by subjecting the employee to any other detriment.

(3)        Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

THE PRIMARY DECISION

6                     The appellant’s profound deafness constitutes a disability for the purposes of the Act.  The appellant is unable to hear or speak and she communicates by means of Australian Sign Language (Auslan).  She also has limited written English and limited ability to lip read. 

7                     Most of the disabled people to whom the respondent provides charitable services have intellectual disabilities.  Some of those serviced by the respondent, who are intellectually impaired, are also hearing impaired.  The respondent operates residential services including a Community Residential Unit (CRU) in Mornington, Victoria.  The appellant was employed by the respondent at one of its Mornington CRUs as a disability support worker.   

A claim of indirect and direct discrimination

The initial meeting

8                     The involvement of the appellant at the CRU commenced on a voluntary basis in August 2003.  A meeting on 23 July 2003 (the initial meeting) assumed importance in the learned primary Judge’s reasons.  At the initial meeting the appellant met with Mr Terry Guest, the then residential manager of the respondent.  She was accompanied by a qualified Auslan interpreter, Ms Van Opijnen.  Ms Van Opijnen interpreted through the use of Auslan at that meeting.  As a result of the meeting it was agreed the appellant would assist the respondent with one hour’s voluntary work each Saturday. 

9                     The evidence of the appellant was that at the initial meeting Ms Van Opijnen explained to Mr Guest that interpreters needed to be provided.  The appellant also indicated that Ms Van Opijnen raised the issue of the provision of special equipment for deaf employees such as a telephone typewriter (TTY).  However, Mr Guest gave evidence that he was not aware following the meeting that the appellant required a qualified interpreter, saying that there was no discussion of equipment such as TTYs or flashing lights at the meeting (the use of flashing lights is another means of assistance to enable certain information to be conveyed to persons who are profoundly deaf).   Mr Guest further made it clear that the appellant was able to perform the limited role in which she was initially engaged without the assistance of an interpreter and that nothing to the contrary was suggested by either the appellant or Ms Van Opijnen at the initial meeting. 

Credibility

10                  The primary Judge concluded (the appellant says wrongly) that the special needs of the appellant in the workplace were not discussed at the initial meeting.  Indeed, the primary Judge noted that Ms Van Opijnen testified that she had no specific recollection of discussing such matters.  Her progress notes confirmed that.  His Honour rejected the evidence of the appellant. 

11                  The primary Judge also concluded that the appellant appeared to have been confused between topics discussed at the initial meeting and the discussion at a subsequent meeting with the respondent’s representatives at which Ms Van Opijnen also attended. 

12                  Indeed, significantly, his Honour noted that such confusion was present in much of the appellant’s evidence.  The position the primary Judge took was that, where there were conflicting accounts of events, he preferred the evidence of witnesses other than the appellant. 

13                  The appellant advanced considerable criticism of this conclusion.  It must be noted, however, that the primary Judge decided not that the appellant was deliberately untruthful in her evidence, but rather that her evidence was confused and, therefore, unreliable where it differed from the evidence of other witnesses. 

14                  Somewhat ironically, this assessment is entirely consistent with a primary complaint raised for the appellant.  That complaint relates to the suggested failure by the primary Judge to take into account the difficulty a profoundly hearing impaired person experiences in comprehending with complete accuracy, a conversation interpreted by Auslan.  This complaint could be more readily understood had the primary Judge concluded that the appellant was being deliberately untruthful.  That was not his finding.  In making his assessment of the appellant’s evidence, he explained why he regarded her evidence as confused.  His explanation does not suggest that he did not take into account and make allowance for her disability.

15                  The second meeting of significance was about a month after the initial meeting.  On 28 August 2003, Mr Guest offered the appellant paid casual employment with the respondent.  However, this was still only one shift per fortnight with the possibility of further periods of casual work when other staff members were not available.  The primary Judge found that, when the appellant commenced her employment, the respondent was still not aware that she required qualified interpreters or other equipment to perform her duties. 

Provision of a TTY

16                  In relation to various topics which formed the basis of the appellant’s claims of discrimination, the primary Judge first addressed the issue of the provision of a TTY. 

17                  A TTY was described by counsel for the appellant as a relatively small machine, perhaps the size of a large book, which looks like a typewriter.  It is connected to the telephone system.  It permits input of words and sentences, which are then transmitted to a TTY device somewhere else.  Evidence given by the appellant about the actual use of the TTY was that the deaf residents - while they had the TTY at work - ‘would ask me to call their parents and I would interpret their phone calls, and this worked very well.  But then it also allowed me to make calls’.   She described it as:

a relay service, so deaf people can call anyone through the TTY, whether they are deaf or hearing.  This was important because we were told if there was a problem with shifts, or medication queries after hours, we should ring On Call.  Without the TTY I couldn’t do this.

18                  The primary Judge concluded that having a TTY was not a ‘burning issue’ for the appellant because, when the Chief Executive Officer (CEO) of the respondent asked the appellant, in November 2004, if it could assist her with the purchase of equipment such as a warning light system, she did not accept the offer.  In fact the appellant accepted that the CEO had asked her on this occasion how he could help her and she had said nothing about a TTY. 

19                  The primary Judge found that a further offer was made in October 2006 to purchase a TTY for the appellant.  This was in response to a facsimile from the appellant to the residential service manager shortly before with a request for a TTY.  The primary Judge found that, although the offer to purchase a TTY for the appellant was made, the offer was not accepted.  (The making of the offer was also challenged).  The primary Judge rejected the appellant’s explanation that she did not take up the offer for fear of losing more shifts.  There was no lack of will from the respondent to provide a TTY but the appellant did not press the issue with any fervour at any time between this further offer from the respondent and mid‑2007.  His Honour concluded that prior to 5 July 2007, the respondent could have considered with confidence that provision of a TTY to the appellant was not an issue at the CRU.  A TTY was eventually provided in July 2008.  There was no evidence of what led to the provision of the TTY at that time.  His Honour concluded that the respondent had not engaged in indirect discrimination by not providing a TTY to the appellant.  He did not accept that the respondent had imposed a requirement or condition on the appellant prior to 2008 that she access her employment without a TTY as it was unclear to the respondent until 2008 that she required provision of a TTY.

Flashing lights

20                  As to flashing lights to alert the appellant of visitors to the CRU, the appellant similarly contended that she requested provision of that aid both directly and through other staff members.  The primary Judge analysed in detail the evidence on this topic.  Flashing lights were eventually installed in 2007. 

21                  The finding was that the installation of flashing lights followed a request from the appellant on 12 October 2006.  The primary Judge accepted that until the installation in 2007, the respondent had imposed a requirement or condition that the appellant perform her employment without flashing lights.  That requirement was one with which hearing staff were able to comply with as they could hear if a visitor was at the door.  The appellant could not, but was able to perform most aspects of her employment without the installation of flashing lights. 

22                  Following Hurst v Queensland (2006) 151 FCR 562 (at [134]), his Honour (at [54]-[55]) applied the test of whether a disabled person would suffer a ‘serious disadvantage’ in complying with a requirement or condition.  In that case a Full Court of this Court held that it was sufficient to satisfy the ‘not able to comply’ component of s 6(c) of the Act that a disabled person will suffer serious disadvantage in complying with the requirement irrespective of whether the person can ‘cope’ with the requirement or condition.  The appellant did not suffer any serious disadvantage from her inability to answer the door.  At the time when the request for flashing lights was made in 2006, the respondent had purchased a pager which provided staff members with a means of attracting the appellant’s attention. 

23                  After finding on the evidence that the appellant was working approximately 15 hours per fortnight and that provision of a flashing light was incidental to the performance of her duties, his Honour concluded that the requirement imposed on Ms Devers was not unreasonable in all the circumstances. 

Interpreters

24                  The claim of indirect discrimination also extended to an allegation that the respondent required the appellant to access her employment without the assistance of a qualified Auslan interpreter at staff meetings, training sessions and ‘in all other situations’. 

25                  In considering this complaint, his Honour restated his conclusion that no request for an interpreter had been made at the initial meeting.  However, from 3 September 2003, the respondent had become aware of the need for an interpreter.  The primary Judge analysed all of the evidence on this topic in detail (at [59]-[73]) but concluded (at [74]-[83]) that the appellant had failed to show, in all the circumstances of her employment, that requirement to participate in training sessions without the assistance of a qualified interpreter was unreasonable. 

26                  One of the bases upon which the appellant asserted that the failure to provide an interpreter was unreasonable was that the cost of doing so would be ‘relatively insignificant’ compared with the overall budget of the respondent.  However, on this topic she produced no evidence of the respondent’s financial position, budget or otherwise, at the hearing.  It is important to note that the appellant bore the onus of proving this aspect of the case.  This may be contrasted with a defence of unjustifiable hardship on which the respondent would bear the onus had it been pleaded.  Attempts were made in the course of the appeal to adduce some evidence as to the income of the respondent.  That will be addressed below (at [135]).

27                  In one communication from the appellant to the respondent, she indicated that she had requested an interpreter for training to combat work place bullying and had been informed that the provision of the interpreter was the respondent’s responsibility.  She continued ‘I know its cost very expensive, I would like to ask Ross to interpreter (sic-interpret) for me!! It’s up to you’. 

28                  In the end, however, the conclusion of the primary Judge as to reasonableness was summarised as follows (at [82]) of his reasons:

Until November 2007, [the appellant] was a casual employee of [the respondent]. During her employment with [the respondent] she was given the opportunity to access several training sessions run by both internal and external providers. Although qualified interpreters were not provided on many occasions, [the respondent] sought to ensure that the information was conveyed to [the appellant] in other ways. As a not for profit, charitable organisation, its primary obligation was the care of its clients, within its budget. [The appellant] has not discharged her onus to demonstrate that the requirement was not reasonable in all the circumstances.

29                  Similar conclusions on the need for interpreters were reached in the context of staff meetings.  The primary Judge found that much of the material related to general communication difficulties experienced by the appellant rather than specifically to her ability to access information discussed at staff meetings.  His Honour did accept that the general evidence supported the inference that the difficulties would extend to the appellant’s ability to participate in staff meetings.  However, his Honour weighed that difficulty with steps taken by the respondent to make information from staff meetings available to the appellant, by other means such as staff members acting as interpreters and minutes being taken of the meetings. 

30                  Notwithstanding this approach, his Honour concluded, in the appellant’s favour, that she had been unable to comply with the requirement or condition that she attend staff meetings without the assistance of a qualified interpreter.  Nevertheless, for the same reasons which informed his the analysis of training meetings, the primary Judge concluded that the appellant had not discharged the obligation of showing that, in effect, it was unreasonable not to supply interpreters as the annual cost to do so could be in the order of $18,000.  There was no evidence as to the respondent’s financial capacity but the primary Judge concluded there was, in any event, a discrepancy between the annual cost of providing interpreters and the income of the appellant or, put another way, the amount of time spent at the respondent’s premises by the appellant.  Given the latter differential and that the onus was on the appellant to prove that the provision of interpreters would be a ‘relatively insignificant cost’, the primary Judge rejected this complaint, saying (at [105]):

In light of the significant costs involved in providing qualified interpreters at staff meetings; the provision of the information in other ways, including minutes and the use of staff members as interpreters; [the appellant’s] status as a casual employee and the relatively few hours she worked; [the appellant] has not established that condition or requirement was not reasonable. No indirect discrimination arises in respect of the failure to provide qualified Auslan interpreters at staff meetings.

31                  All of the claims of indirect discrimination failed.  

Direct Discrimination

32                  In relation to direct discrimination, the claim was summarised by the primary Judge (at [109]):

[The appellant] contends in her amended statement of claim at [17] that [the respondent] treated her less favourably within the meaning of s 5 of the Act as it:

(a)        would not allow the [appellant] to attend doctor’s appointments with deaf clients but would allow hearing staff to do so;

(b)        would not allow the [appellant] to have the access code to the spare key to the Community Residential Unit but would allow hearing staff to do so;

(c)        would not allow the [appellant] to work sleep over shifts but would allow hearing staff to do so;

(d)        changed rosters to preclude the [appellant] from working sleep over shifts;

(e)        provided diverse training and professional development opportunities to hearing staff but not the [appellant];

(f)        provided extra shifts to hearing staff in preference to the [appellant];

(g)        provided formal contracts to hearing staff but not the [appellant];

(h)        subjected the [appellant] to restrictions that hearing staff were not subjected to.

Allegation (h) was not particularised.

33                  Following Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (per Gummow, Hayne and Heydon JJ at [213]), the primary Judge concluded that there were two relevant questions for determination.  First, how would the respondent have treated a person in circumstances materially similar to that of the appellant, but without the appellant’s profound deafness; and second, if the treatment of the appellant was less favourable than the treatment that would have been given to a person without her disability, was that difference because of her disability? 

34                  It was necessary to identify a ‘comparator’.  The primary Judge treated the relevant comparator as being an employee of the respondent performing a similar role to the appellant, but without her disability but who also had her attributes. 

35                  On the topic of doctors’ appointments, the primary Judge concluded that there was no evidence that the appellant was treated any less favourably than other staff members because the evidence failed to identify any occasion where a staff member attended a medical appointment alone with a client. 

36                  In relation to having an access code to the spare key, the primary Judge accepted that all employees should have had the access code to the front door but rejected any inference that the appellant had not been given that access code prior to 2008 because of her casual status or, more importantly, because of her disability.  As soon as management became aware that the appellant did not have the code, she was provided with it. 

37                  As to the complaint about ‘sleep over’ shifts, the claim failed on the evidence.  There was no evidence other than the appellant’s own statements of her communicating any desire to work sleep over shifts.  The primary Judge accepted evidence given by an officer of the respondent that no request had been made by the appellant to work sleep over shifts.  Had she done so, that would have been a departure from her originally expressed desire not to work sleep over shifts.  In the absence of any request to the contrary, the respondent had been complying with the appellant’s stated preference. 

38                  As to less favourable treatment on roster allocations, the primary Judge found that the appellant had made no request for additional shifts or advertised positions and there had been difficulties in her ability to commit to all shifts.  However, his Honour concluded that there was no evidence to show that the appellant had been treated differently from a hearing employee in similar circumstances.  The appellant accepted that she had been aware of the need to apply for a vacant position and of the respondent’s policy of not altering rosters.  She was treated no differently from any other employee who had failed to apply for an advertised position as the respondent’s policy was to require all employees to apply for vacancies.

39                  The primary Judge also rejected the claim that the respondent had provided the appellant with limited training and professional development compared with the opportunities afforded to other staff.  A typical example was that, in February 2005, the respondent offered dementia and Downs Syndrome training.  The appellant was not selected for inclusion in the first training session and attended a later training session run in April 2005.  The explanation for this was that 38 employees applied for the first training session but only 22 places were available.  Priority in the allocation of places was given to employees working in areas where there were greater numbers of older clients with Downs Syndrome.  Once it was explained to her that the training was not relevant to her role, the appellant had ‘accepted that fact’.

40                  There was no evidence, according to the primary Judge, to show that other relevant comparators had been selected for training sessions ahead of the appellant because of her disability (at [148]). 

41                  The appellant’s claim failed on all aspects and was dismissed. 

GROUNDS OF APPEAL

42                  The appellant’s grounds of appeal were as follows:

1.         The primary judge misconceived the application of Jones v Dunkel and failed to analyse or provide any adequate explanation for declining to draw the inferences contended for by the appellant.

2.         The primary judge was in error in failing to give proper consideration to the totality of the evidence concerning the meeting of 23 July 2003.

3.         The conclusions of the primary judge concerning the appellant’s evidence about the meeting held on 23 July 2003 were not open, or were not attended by any, or any sufficient reasons.

4.         The primary judge failed to carry out any proper analysis of, or give proper consideration to, the effect of Ms Van Opijnen’s evidence concerning the meeting of 23 July 2003, and in particular, failed to take into to consideration Ms Van Opijnen’s evidence as to her general practice when consulting with prospective employers of deaf clients. 

5.         The primary judge was in error in failing to have proper regard to the circumstance that the appellant attended the meeting of 23 July 2003 with the Auslan interpreter whose services were used by both the appellant and the respondent, and the primary judge should have drawn appropriate inferences.

6.         In the absence of a properly based finding that the appellant’s evidence was untruthful, it was incumbent on the primary judge to give reasons for the general manner in which he dealt with each part of the evidence of the appellant, and his failure to do so was in [sic] wrong. 

7.         The primary judge failed to give any proper consideration to the effect on the appellant of having to rely on Auslan.

8.         The primary judge failed to identify or give any proper consideration to what he referred to as ‘confusion’ and ‘this type of confusion’ in the context of considering the credibility of the appellant.

9.         The primary judge was in error in holding that the Act does not impose an affirmative obligation on the respondent as an employer to provide aids for the appellant as an employee.

10.       The primary judge was in error in failing to consider the evidence of the psychologist Mr Damian West in connection with the acceptance or rejection of the appellant’s evidence, or at all.

11.       The primary judge erred in law in failing to have regard to, or alternatively misinterpreting, the provisions of s.15(2) of the Act.

12.       The primary judge was in error in his approach to the question of provision of a TTY [31[-[43] because, without any, or any proper reasons, he failed to take into account the totality of the evidence, and in particular the evidence in Section B referred to in the Appendix to the appellant’s final written submissions.

13.       The primary judge was in error in his approach to the question of provision of a TTY [44]-[56] because, without any, or any proper reasons, he failed to take into account the totality of the evidence, and in particular the evidence in Section G referred to in the Appendix to the appellant’s final written submissions.

14.       The decision of the primary judge is vitiated or alternatively tainted by numerous errors in connection with evidence and the effect of evidence, including

(a)        The statement or finding at [35] that the respondent offered to purchase a TTY and that the appellant rejected the offer (which was not the evidence);

(b)        The statement or finding at [55] that at the time the appellant was working approximately 15 hours per fortnight;

(c)        The statement or finding at [72] that the appellant acknowledged that she could receive the information by means other than a qualified interpreter.

(d)        The statement or finding at [137] that the appellant did not apply for any positions offered by the respondent, whereas in fact there was evidence of at least one application by her. 

15.       The primary judge has erred in his approach to and selection of relevant comparators for each of the categories of direct discrimination, and in particular, by the fact that he included actions, as distinct from attributes, as relevant.

16.       In determining what would be a reasonable cost for interpreting, the primary judge failed to have any or any proper regard to the evidence that interpreters could have been arranged or provided for the appellant at little or no cost to the respondent.

17.       The primary judge by his numerous references to ‘staff members interpreting for the Applicant’ and ‘unqualified interpreters’ demonstrated a pervasive failure to understand the significance and role of interpreting.

18.       The primary judge failed to have any or any proper regard to the uncontested evidence of Professor Jan Branson.

19.       The primary judge was in error in his conclusions concerning the reasonableness of the steps which the appellant sought to have taken to address her disability; and further the primary judge was in error in failing to take into account and give reasons for any rejection of the appellant’s submissions concerning the topic of reasonableness. 

20.       The primary judge failed to provide any or any proper reasons for his acceptance and reliance on the evidence called for the respondent, either generally or in relation to specific matters.

21.       The primary judge erred in entertaining the question of unjustifiable hardship, which was not raised in the respondent’s pleadings.

22.       The primary judge erred in law by confusing the legislative notion of detriment with what he styled serious disadvantage. 

43                  The orders sought by the appellant were:

1.         That the orders of the Court dated 27 November 2009 dismissing the application be set aside.

2.         That the order that the appellant pay the respondent’s costs be set aside.

3.         A declaration that the respondent has discriminated against the appellant since March 2003;

4.         In the alternative to the orders sought in Paragraph 3, an order remitting the application to a single Judge to be re-heard.

5.         That the respondent pay damages to the appellant in such a sum as this Honourable Court deems appropriate;

6.         That the respondent pay the appellant’s costs of this proceeding, including the costs of and incidental to this appeal. 

CONSIDERATION

44                  The course of argument took an entirely different route on oral submission and various grounds were collected under topics.  It is helpful first to say something of a general nature about the principles applicable to most of the appeal grounds.  The observations apply to the grounds either as drawn or as presented. 

45                  Although the grounds of appeal can be seen to invoke some points of principle, in large measure the appellant requires this Court to reach different findings of fact from those reached by the primary Judge.  An obvious starting point is the complaint as to the rejection of the appellant’s credibility on key issues in her claim. 

46                  There may now be doubts about the degree to which an appellate court should defer to  the advantage a primary Judge has to form a view as to credit on the basis of demeanour (as considered in Fox v Percy  (2003) 214 CLR 118).  It is clear from cases such as Fox v Percy that even in a credibility case, an appellate court may, indeed should, reverse the trial or primary Judge where objective evidence such as documentary evidence requires that course to be taken in order to do justice.

47                  Nevertheless, there is, notwithstanding that an appeal is by way of rehearing (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507), a recognition that where the primary Judge’s evaluation of witness credibility is at the heart of his or her conclusion, there needs to be good reason to interfere with it.  No conclusion in Fox v Percy departs from this principle.  As was observed in Devries v Australian National Railways Commission (1992) 177 CLR 472(at 479) (footnotes omitted):

If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his [or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

48                  A finding of fact may also be reversed where reliance has been placed on key evidence wrongly admitted or key evidence wrongly excluded when such evidence is pivotal to the result.  In Devries (at 479-480) , Deane and Dawson JJ observed (footnotes omitted):

An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The “value and importance” of that advantage “will vary according to the class of case, and, … [the circumstances of] the individual case”. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence.

49                  However, there is more scope for the drawing of inferences on appeal when there is no doubt as to the facts. As to inferences from established facts, in Cabal v United Mexican States (2001) 108 FCR 311, a Full Court of this Court observed (at [223]):

In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However, once having reached its own conclusion it will not shrink from giving effect to it. 

50                  Complaint has been made by the appellant that there has been both failure to give reasons (particularly for rejecting the credibility of the appellant) and a failure to advert to other evidence which may have assisted the appellant’s case.  It has been held that it is an incident of judicial duty for the judge to consider all the evidence in the case and the failure to refer to evidence critical to an issue required to be decided may indicate that the duty has not been discharged (Mifsud v Campbell (1991) 21 NSWLR 725) (emphasis added).

51                  This does not mean that a trial judge must record every piece of evidence in the case or every legal argument, however peripheral either may be.  In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, Kirby J observed (at 619) (footnotes omitted):

These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.

THE GROUNDS OF APPEAL ADDRESSED IN TOPICS

52                  The appellant presses her affirmative answers to two main questions:

(i)         did the primary judge err in finding that the respondent did not engage in any indirect discrimination against the appellant within the meaning of s 6 of the Act? and

(ii)        did the primary judge err in finding that the respondent did not engage in any direct discrimination against the appellant within the meaning of s 5 of the Act?

53                  In oral argument, counsel for the appellant developed submissions which were aimed at collecting the grounds of appeal under four different topics.  Those topics were:

•                     Deafness;

•                     Tests;

•                     Unjustifiable hardship; and

•                     Evidence.
  

  54                  In the context of the topic of deafness, the grounds of appeal incorporated grounds 7, 6, 8, 18, 19, 17, 16, 2, 3, 4 and 5 with ground 18 being relevant also to the fourth topic.

  55                  The Court was informed that the first topic would include what deafness entails; the obviousness of the necessity for measures to address deafness; and the risks of misunderstanding communication in the context of communications between the profoundly deaf and those with hearing. 

  56                  A topic of particular attention in the course of oral submissions was the suggested failure of the primary Judge to take into account the true nature of the difficulties experienced by a profoundly deaf person; the failure to take into account the fact that portions of the translation will be lost in any interpretation including Auslan interpretation (and the bearing this had on the primary Judge’s conclusions as to credit); and finally a failure adequately to take into account the isolation experienced by a person who is profoundly deaf (this proposition being argued through a contention that there was a failure adequately to take into account certain expert evidence). 

  57                  Grounds 6, 7 and 8 were grouped together.  To summarise them for convenience, ground 6 was inadequate reasons, ground 7 was failure properly to consider the effect on the appellant of having to rely on Auslan and ground 8 was a failure to identify the appellant’s ‘confusion’.  On grounds 6, 7 and 8, the appellant noted that the primary Judge had accepted that the appellant relied on Auslan to communicate and that Auslan interpreters were not provided to the appellant for staff meetings until in or about mid-2008.  They were provided by external organisations for some training sessions.  It was submitted that, in making an assessment of the honesty or credibility of the appellant, the primary Judge failed to take into account the circumstances of the appellant’s reliance on Auslan and her lack of access to it in the workplace.  It followed that any ‘confusion’ in the appellant’s evidence needed to be seen in this context rather than giving rise to a conclusion as to credit. 

  58                  A submission was made that the duty to provide reasons was a duty to provide adequate reasons. It was also argued that, if the primary Judge considered and rejected the appellant’s evidence, he could do so only for relevant reasons which he was obliged to disclose:  Read v Nerey Nominees Pty Ltd  [1979] VR 47 (at 52).  These propositions may be accepted but a judge's duty to give reasons is not one which requires him or her to examine in detail every issue raised in the proceedings or to record in minute detail the reasons which led to any particular conclusion. It is enough if the judge outlines the facts found and the process of reasoning which led to the ultimate conclusion:  Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;  Pettitt v Dunkley [1971] 1 NSWLR 376 and Mifsud v Campbell at 728, per Samuels JA (Clarke JA and Hope AJA concurring).

  59                  In Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 (at [40]-[41]) (Tamberlin, Sundberg and Besanko JJ), the Full Court said:

  [40]      Clearly, a trial judge is under an obligation to give reasons for his or her decision. The rationale for the obligation has been discussed in a number of cases. It is sufficient to refer to two cases. In Pettitt v Dunkley [1971] 1 NSWLR 376 (“Pettitt v Dunkley”), Moffitt JA said (at 388) that a court or judge, including an intermediate court of appeal, is under an obligation to give reasons “so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court”. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (“Soulemezis v Dudley (Holdings) Pty Ltd”), McHugh JA (as his Honour then was) said (at 279) that the giving of reasons for a judicial decision served at least three purposes: first, “it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”; secondly, “the giving of reasons furthers judicial accountability”; and, thirdly, the giving of reasons enables practitioners, legislators and members of the public to ascertain “the basis upon which like cases will probably be decided in the future”. McHugh JA went on to say (at 280–281) that the extent of the duty to give reasons was related to the function to be served by the giving of reasons, and he gave as an example of that proposition the need to give more elaborate reasons where legislation gives a right of appeal against a decision than where no appeal lies.

  [41]      The nature and content of the duty to give reasons has been discussed in a number of cases. In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Gray J (with whom Fullagar and Tadgell JJ agreed) said (at 18) that the adequacy of reasons will depend on the circumstances of the case. The reasons of a trial judge will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based, or justice is not seen to have been done. In that case, Gray J said that the trial judge’s reasons were inadequate because his reasoning process was not revealed to the appeal court, such that a judgment could be made as to whether he had fallen into error. His Honour also said that the insufficiency of the reasons had the consequence that justice was not seen to be done.

  To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.

  
  

  60                  As to the inadequacy of reasons argument, it can not be said that the reasoning process of the primary Judge in the present case was not revealed to the appellate court.  The primary Judge formed the view that the appellant had been confused about the content of discussions and when and if such content occurred.  It is clear that he formed the view that her confusion was so substantial and arose throughout her evidence such that her evidence was not fully reliable.  This is not a conclusion that she was untruthful, deliberately or otherwise, rather that she was simply confused. 

  61                  More importantly, the actual reasoning leading to that conclusion is revealed in the detailed analysis of the evidence when, by reference to each of the succession of claims the appellant made, the primary Judge concluded (as foreshadowed and explained at the outset), that where her evidence differed from others, he preferred the evidence of others – often in any event supported by objective records.   He therefore did explain why her evidence on some points  was rejected.  It was due to a conclusion that she was generally confused.  That impression was supported when he descended to detail to explain, claim by claim, why that was so.  Short of commenting on her demeanour, which taken alone has now repeatedly been doubted as a particularly reliable tool for determining credit, there is little more the primary Judge could have said on this topic.

  62                  Further, as we have noted, the finding of confusion is entirely consistent with a primary thrust of the appellant’s plausible argument in the appeal to the effect that it is difficult to absorb all the information in a conversation which is partly a conventional oral conversation and partly a conversation interpreted by Auslan. 

  63                  In further support of ground 7 (failure to give proper consideration to the effect on the appellant of having to rely on Auslan), reliance was placed on Re Osman [1996] 1 WLR 1327 in which it was held that a juror who was profoundly deaf and unable to follow without a sign language interpreter could not act effectively as a juror.  The presence of such a person would cause an incurable irregularity.  Reliance was also placed on Tomasevic v Travaglini  (2007) 17 VR 100 (at [66]) where the Court said (footnotes omitted):

  Picture in your mind a deaf mute, sitting vulnerably in court while his case is being argued. The trial judge exercises his judicial discretion to direct that counsels’ submissions not be interpreted. As any artist will tell you, things are very clear at the extremes. The Court of Appeal of New South Wales saw the injustice of this situation very clearly and ruled that the trial judge’s discretion had miscarried. In doing so, nearly 20 years ago, Kirby P and Samuels and Clarke JJA took into account the human rights specified in the International Covenant on Civil and Political Rights to which Australia is a party, including equality before the law and access to justice, and their offspring, the right to have an interpreter.

  
  

  64                  Of course, this authority goes to the need for an interpreter in Court which the appellant had both at trial and before us.  Beyond this, it is difficult to appreciate the consequence of the criticism levelled at the primary Judge, even assuming the criticism to be valid.  Having concluded that the reasons of the primary Judge were sufficient, it is neither open nor possible for this Court to conclude that the primary Judge failed to take into account the impact on the appellant of her deafness.  There was ample material before his Honour to reinforce the deeply isolating nature of the appellant’s condition. 

  65                  Coupled with the inadequate reasons argument was a submission that findings of confusion on the part of the appellant would not necessarily permit the overall rejection of the evidence of the witness (Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [25]).

  66                  This latter submission is correct.  It would be entirely appropriate and not unusual for a judge to accept some elements of a witness’s evidence while finding the witness confused in relation to other aspects of it.  Indeed, as noted, the primary Judge did accept substantial portions of the evidence of the appellant but, to the extent that the account she gave differed from the account given by others, his Honour accepted the account of other witnesses due to his finding that the appellant was confused in her recollection about much of the evidence.  As has already been noted, this was not expressed as a finding that the appellant was deliberately untruthful. 

  67                  As to ground 8, (failure to identify the confusion), the point has already been made that the detailed examination of the appellant’s case, claim by claim, made clear that his Honour, in rejecting the claims, considered that the appellant was confused. 

  68                  None of these grounds of appeal was made out. 

  69                  Appeal ground 18 contended that the primary Judge failed to have any or any proper regard to the uncontested evidence of Professor Jan Branson.  Professor Branson was the Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University.  She explained the qualifications and experience required to become an Auslan interpreter and confirmed that, without formal interpreting qualifications, there can be no assurance that an individual interpreter is competent.  She made the point that the deaf community is a cultural linguistic minority group.  Deaf people have been denied their rights to interact in society for decades; and have limited access to schooling, healthcare, courts and so on.  Every task which requires a communication exchange must be planned ahead.  They cannot just walk down to the local police station and make a report or drop in at a health centre.  They tend not to assert their rights, because it is simply too difficult.  Deaf people do not have ‘local’ language of the majority and therefore lack confidence.  Those denied real knowledge of how society works, lose the ability to be assertive – to do the normal things people do to live a fulfilling life.  They tend to step back because it is easier. 

  70                  Professor Branson explained that:

•                     When deaf people do assert their needs, they are often seen as aggressive, even if what they are asking for is quite reasonable.  An example of this is the women’s movement – women who wanted to vote were seen as demanding and aggressive but what they were asking for was very reasonable.  The Deaf Community’s treatment at the hands of hearing people has been similar to that of other minority groups.  They have been forced to abandon their language, and indeed punished for their language. 

•                     In schools, or in the workforce, deaf persons can often be isolated amongst hearing people.  They are often alienated depending on whom they work with.  If the environment is not inclusive, deaf persons do not even receive enough information to know what is going on at a basic level, and are therefore very unsure.  Due to using a different language, they are rarely confident that they know what is happening in their environment.  They do not hear the chatter in the tea room where all sorts of information are exchanged.  They often are not given full information, because, if there is no interpreter, written down information is always abbreviated – only the important points are conveyed.  In this environment deaf person’s will feel isolated and alienated.  It is the environment that excludes the deaf person and defines them as different or ignorant. 

•                     All the above leads to deaf people rarely being able to express their own needs in the same way as a hearing person. 

•                     On the rare occasion where the need to acquire information or service has reached a point where a deaf person is frustrated enough to articulate the need, he or she may be viewed as assertive and aggressive – often because such a request may have been ‘on hold’ for quite some time while the deaf person summons the courage to make the request.  In addition, they can be misunderstood due to another person’s lack of familiarity with their language – in the case of Auslan for example, due to the use of facial expression. 

  71                  For the appellant it was contended that the evidence of Professor Branson established that continuous interpretation by a competent Auslan interpreter assures a reasonable quality of interpreting.  The evidence was that, if proceedings of a staff meeting including discussions, instructions and exchanges were not adequately interpreted but were grotesque, incomplete or inadequate or did not otherwise contain the entire meeting, there was a substantial risk of counter-productivity.  The evidence was that, if interpretation was not precise as when it was only by way of summary, then it would fail to convey the full content of what was said. 

  72                  All this accepted, once again, the question is where these observations can take the appellant in her argument.  The primary Judge did not reject any of this evidence.  While his Honour gave this aspect of the appellant’s case less weight than the appellant may wish, there is no reason to conclude that the primary Judge did not take into account the evidence of Professor Branson in light of the fact that his Honour made an express finding that the appellant was unable to comply with the requirement that she attend training and staff meetings, without a qualified interpreter.  That is the very point that Professor Branson was making.  What the primary Judge went on to consider, however, was whether in all the circumstances of her particular employment, this was unreasonable so as to constitute a contravention of the Act.  Ground 18 is not made out. 

  73                  Ground 19 of the appeal contended that the primary Judge erred in the conclusions reached as to the reasonableness of the steps which the appellant contended should have been taken to address her disability.  Clearly this was a central issue.  Particular focus was placed on the conclusion of the primary Judge, that the appellant failed to press her case sufficiently for the provision of aides and interpreters.  This conclusion was said to be erroneous.  It was argued that the conclusion that provision of a TTY was not a ‘burning issue’ was incorrect.  The appellant argued that compliance with the legislation was the respondent’s obligation, not the appellant’s.  Further, it was claimed that the primary Judge failed to record in his reasons all of the occasions on which requests were made notwithstanding the fact that these had been listed in the appellant’s submissions. 

  74                  In oral submissions the appellant argued  that the test of reasonableness is an objective one which requires the Court to weigh the nature and extent of the discriminatory effect on the one hand against the reasons advanced in favour of imposition of the condition or requirement on the other. 

  75                  In Catholic Education Office v Clarke (2004) 138 FCR 121 Sackville and Stone JJ said (at [115]):

  115       The appellants did not submit that the primary judge had erred in stating the principles to be applied when determining whether a requirement or condition is not reasonable having regard to the circumstances of the case (DD Act, s 6(b)). As his Honour remarked, the principles are now well settled: see Victoria v Schou (2004) 8 VR 120, per Phillips JA (with whom Buchanan JA agreed). They include the following:

  (i)         The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there;

  (ii)        The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J.

  (iii)       The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62, per Heerey J; Commonwealth Bank v HREOC, per Sackville J; and

  (iv)       The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, per Beaumont J; Victoria v Schou (2004) 8 VR 120, per Phillips JA.

  
  

  76                  On application of these principles, can it be said that it was wrong to conclude the appellant had not established that the requirement was reasonable or not unreasonable?  On weighing the nature and extent of the discriminatory effect on the one hand against reasons advanced on the other, the primary Judge took into account the relatively occasional nature of the appellant’s presence in the work place, the availability of other communication measures and the cost of providing the appellant’s preferred communication facilities compared with what she was paid.  What she was paid was another way of considering the proportion of any given week that she was in the workplace.

  77                  The appellant, however, takes issue with the submission for the respondent that she was employed for 12 to 15 hours per fortnight together with some additional hours on top of that core requirement such that her presence in the workplace was only occasional, not permanent. 

  78                  However, neither the primary Judge nor the respondent suggested the ‘occasional presence’ meant that taking into account the appellant’s needs could be totally disregarded.  Rather, the limited extent and nature of the employment was a matter to be taken into account in weighing the competing considerations.

  79                  As a matter of principle, the appellant contends that this leads to completely unsatisfactory results, encouraging employees to treat casual or part-time or occasional disabled workers as expendable or of no consequence. 

  80                  This submission can not be accepted.  It was entirely appropriate for the primary Judge to accept the respondent’s argument on this point.  Indeed it would have been unusual not to take into account the fact that the presence of the appellant was occasional only.  But it is just one factor to be weighed with many others.  The argument has not been put, nor would it be open, that the primary Judge gave too much weight to this factor.  It was simply one consideration, but one that was not unimportant.  This ground is not made out. 

  81                  Appeal ground 17 asserts that the primary Judge, by numerous references to staff members interpreting for the appellant, demonstrated a pervasive failing to understand the significance of the role of interpreting.  In support of this ground, reference was made to evidence that the appellant could not fully understand the ‘interpreting’ of staff members and she was not satisfied or happy with staff members interpreting for her.  Reliance was placed on the uncontested evidence of Professor Branson that this form of assistance was of little use to the appellant and it was argued that the trial judge failed to recognise that qualified interpreters were able to provide the appellant with effective communication access but that the staff trained to Auslan level 1 or level 2 were incapable of providing such access.  As with the majority of the grounds of appeal, this ground seeks to press for a conclusion that a different factual finding should have been made.  Yet it does not identify any error in process or principle other than the outcome.  Moreover, in substance this ground does no more than repeat ground 18 which has been rejected.  So, too, must this ground be rejected. 

  82                  As to ground 16, complaint was made that the primary Judge failed to have regard to evidence that interpreters could have been arranged or provided for the appellant at little or no cost.  This evidence was said to be that the Victorian Deaf Society would obtain funding for the respondent for free interpreting services whereas there was no evidence that the respondent at any time investigated the existence of funding to assist in interpreting costs.  It is unnecessary to repeat the detail of the findings but the availability of this offer of service was considered at least in passing in the course of general consideration of this topic by the primary Judge (at [63]-[69]).  In favour of the appellant, his Honour concluded that the requirement had been imposed.  But against the appellant he concluded (at [80]) that she had not shown it to be an unreasonable requirement.  We were taken to no evidence to support the assertion made in this ground of appeal, nor does it appear that the proposition was advanced in the 88 pages of written submissions and tables filed by the appellant following the trial.  It cannot be said that the primary Judge erred in failing to consider a submission which was not clearly put to him, even assuming there was a foundation for it in admissible evidence to which we have not been taken.  This ground cannot succeed. 

  83                  Counsel for the appellant in argument then shifted back to ground 2 of the grounds of appeal which was to the effect that the primary Judge had erred in failing to give proper consideration to the totality of the evidence concerning the 23 July 2003 meeting.  This ground was argued collectively with grounds 3, 4 and 5.  Respectively, they were, first (ground 3) that the conclusions of the primary Judge concerning the appellant’s evidence about the 23 July 2003 meeting were not open or were not attended by any or any sufficient reasons.  The next (ground 4), was that the primary Judge had failed to carry out any proper analysis of, or give proper consideration to, the effect of Ms Van Opijnen’s evidence concerning the initial meeting and, in particular, had failed to take into consideration Ms Van Opijnen’s evidence as to the general practice when consulting with the prospective employers of deaf clients.  Ground 5 was that the primary Judge had erred in failing to have proper regard to the circumstances of the appellant’s having attended the initial meeting with an Auslan interpreter whose services were used by both the appellant and the respondent and the primary Judge should have drawn appropriate inferences. 

  84                  The appellant argued that the primary Judge had failed to appreciate that there was no inconsistency between the evidence of the appellant that the provision of equipment was discussed at this meeting and the evidence of Ms Van Opijnen.  Presumably this implies that Ms Van Opijnen did corroborate the appellant’s evidence.  We were not taken to any detail in the evidence to support this argument but it is clear that there was objective evidence against it in the form of Ms Van Opijnen’s almost contemporaneous notes.

  85                  There is no basis on which this Court can draw an inference that the provision of equipment was discussed at this meeting.  Indeed the probabilities that the need for provision of equipment was discussed at this meeting would not seem great. As with many of the arguments advanced in the appeal, this contention overlooks the basis on which the appellant was engaged following the initial meeting.  What was being offered to the appellant, and what she was offering in return, was to work on a voluntary basis for one hour per week on a Saturday. 

  86                  Given those circumstances, it is difficult to see how it would have been essential to provide the appellant with the sorts of equipment which might otherwise have been reasonable or necessary had she been engaged in more demanding employment for a longer period of time and on a paid basis with understandably higher reciprocal expectations and obligations.  There is no basis upon which the primary Judge was bound to infer that the facilities and assistance which the appellant now asserts were essential to her in the workplace were obviously so, particularly at the time of the initial meeting. 

  87                  It would be inappropriate to disregard completely the fact that the appellant was, in a relative sense, only an occasional presence in the workplace rather than a permanent employee.  That factor would not justify discrimination but it is a factor which may be taken into account in assessing both the arguments the appellant advanced as to what she needed to perform her tasks and, as importantly, the  reasonable balance which has to be struck when that issue is raised. 

  88                  The other submission of the appellant in relation to the initial meeting appears to be that, even if the primary Judge concluded that the appellant’s needs in the workplace were not discussed at that meeting, he should, notwithstanding such a finding, nevertheless have drawn the obvious inference that as a profoundly deaf person the appellant required interpreters for meetings and training and required assistance, such as the provision of a TTY, for any activity relying on hearing.  In substance this contention only repeats the earlier grounds of appeal which have failed.  So also must this ground fail. 

  89                  The second grouping of grounds of appeal advanced in oral argument were described as the ‘applicable tests’ group. 

  90                  Under this group, the appellant commenced with ground 9 of the grounds of appeal which contends that the primary Judge erred in holding that the Act did not impose an affirmative obligation on the respondent as an employer to provide aides for the appellant as an employee.  It is said that the primary Judge misapplied s 15(4) of the Act as the respondent did not claim unjustifiable hardship in relation to the purchase of aides and accordingly the appellant was entitled to succeed on her claim which was put, relevantly, under s 6 of the Act. 

  91                  The same ground was advanced before the primary Judge.  However, to suggest that his Honour reached a conclusion which was based on ‘unjustifiable hardship’ where it appears in s 15(4) of the Act is to misconstrue his reasoning.  The only two references to unjustifiable hardship made by the primary Judge were at [15] and [54].  At [15] his Honour said:

  Section 15(4) of the Act provides protection for employers when hiring or dismissing a disabled person. The Act does not impose an affirmative obligation on an employer to provide aids to a disabled employee. In contrast to the position in the United States, if an employee asks for accommodation or additional services or facilities in order to be able to perform their employment the Act does not impose an obligation to provide “reasonable accommodations”. Rather, the Act provides that when determining whether to hire a prospective employee or dismiss a current employee it is important to assess whether the disabled employee can carry out the “inherent requirements” of the particular employment and whether additional “services or facilities” would enable the person to meet these inherent requirements becomes relevant: see s 15(4)(a) of the Act. Discrimination towards an employee is not unlawful if providing the additional services or facilities would impose “an unjustifiable hardship on the employer”: see s 15(4)(b) of the Act.

  
  

  92                  Subsequently, when his Honour was dealing with the appellant’s contention (not the respondent’s contention) that the requirement or condition was not reasonable in all the circumstances, a reference was made by the primary Judge to unjustifiable hardship in the context of the appellant’s submission (at [55]) where his Honour said the following:

  Similarly, [the appellant] has not demonstrated that the requirement was unreasonable in all the circumstances. Her counsel placed considerable emphasis on [the respondent’s] failure to plead reliance on s 15(4) of the Act. However, the onus is on [the appellant] to demonstrate that the requirement or condition was one which was not reasonable in all the circumstances. At the time, [the appellant] was working approximately 15 hours per fortnight. It is also reasonable to infer that answering the door was incidental to the performance of her duties as a Disability Support Worker. In addition, [the respondent’s] policy was to not have staff members alone at the Bungower Road CRU at any time. Given [the appellant’s] hours, the policy that staff members not work alone at any time and the incidental nature of the task, [the respondent’s] imposition of the requirement or condition that [the appellant] carry out her employment without the aid of flashing lights was reasonable.

  
  

  93                  The primary Judge did not apply s 15(4) of the Act at all and, accordingly, did not misapply it.  What he considered was the appellant’s own argument based on an unproven comparison of the cost of interpreters with the respondent’s budget.  This ground of appeal cannot be accepted. 

  94                  The next ground of appeal which was pursued under the general topic of applicable tests was ground 11.  The ground was that the primary Judge had erred in law in failing to have regard to or, alternatively, in misinterpreting the provisions of s 15(2) of the Act.  Reference was made to [25]-[27] of the primary judgment where his Honour said:

  [25]      [The respondent] submits that cases such as Clarke and Hurst must be treated with caution as they are education, rather than employment, cases. [The appellant] contends that these principles apply to both educational situations and her ability to participate in staff meetings and professional development. In particular, she argues that it was not sufficient for her to simply “cope” by attending some of the required training sessions and staff meetings and access the information through written English. [The appellant] alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for [the appellant] argues that [the respondent’s] submission that she accessed her employment as she attended work and received her wages over a number of years ignores the conditions of her employment which caused her detriment.

  [26]      There are significant difficulties with the case as formulated by [the appellant], in particular the emphasis on her ability to “access her employment”. Employment in that sense is ultimately the range of duties performed in the employee — employer relationship and it is not analogous to access to education, services or facilities. [The appellant’s] emphasis on “access” to her employment is also not reflected in the wording of the Act which speaks only of employment and its terms and conditions. The notion of “access” to employment in the Act only arises in relation to access to the benefits associated with employment and not employment per se. The question posed by the Act is whether an employee has been subject to indirect discrimination in their employment. It is unhelpful to rely, as [the appellant] does, on an entitlement to “access” employment.

  [27]      The present case is not an education or a services case. Ultimately, whether a “requirement or condition” has been imposed is a question of fact. The Act defines discrimination and provides for specific contexts in which such discrimination is prohibited; including in employment, education, access to premises, goods, services and facilities. Each context is treated separately in the Act and raises different issues for consideration. In this respect, the “education cases” relied on by [the appellant] are of limited assistance.

  
  

  95                  The appellant submits that the primary Judge failed to understand and apply the ‘commonality of aspects’ of training and professional development in the workplace that are analogous to a student’s acquisition of knowledge in an educational setting as discussed in Hurst.  This argument was not easy to follow.  The primary Judge cautioned against necessarily transporting a conclusion from an educational context to an employment context as each is treated separately in the Act and raises different issues for consideration.  One obvious distinction is that the appellant, as an employee and unlike a student, was paid over a number of years for the performance of her tasks required by her employment.  We are not satisfied that his Honour erred in any respect in the passage from his reasons on which reliance is placed for the purpose of this ground.  This ground cannot succeed. 

  96                  Under this topic the appellant also pursued ground 15 of the grounds of appeal which was to the effect that the primary Judge had erred in his approach to the selection of relevant comparators for each of the categories of direct discrimination.  In particular, the argument was that the error arose from the fact that ‘actions’, as distinct from ‘attributes’, were regarded as being relevant.  It was said that the primary Judge (at [38]) described the act of applying for shifts in advertised positions and an inability to commit to vacant shifts as ‘attributes’.  The appellant argued that an attribute is a ‘quality’ or ‘characteristic’ of a person and that an action or inaction cannot be an attribute.  What his Honour said (at [38]) had nothing to do with this issue. 

  97                  No other submission was made to support the ground.  It is apparent that his Honour was of the view that the appellant did not want to apply for vacant shifts and gave no plausible reason for this.  The ground of appeal cannot succeed. 

  98                  Also under this topic, the appellant argued (ground 22 of the grounds of appeal) to the effect that the primary Judge had erred in law by confusing the legislative concept of ‘detriment’ with what his Honour styled ‘serious disadvantage’. 

  99                  At [54], his Honour said:

  The court in Hurst noted that an inability to comply may shown (sic-be shown) if “a disabled person will suffer serious disadvantage in complying with the requirement or condition”; at [134]. [The appellant] has not shown that she suffered any serious disadvantage from her inability to answer the door. There is evidence to suggest that in 2004 her inability to hear whether someone was at the door was a source of grievances among other staff members. However, there is no evidence to indicate that this was a live issue in 2006 when the request for flashing lights was made. By this time, [the respondent] had also purchased a pager which provided staff members with a means of attracting [the appellant’s] attention. Her work consisted of caring for the clients at the Bungower Road CRU and she has not shown that her inability to answer the door led to any serious disadvantage. It is a requirement with which [the appellant] was able to comply in performing her employment.

  
  

  100               It was not apparent that the appellant developed this submission in oral argument.  In the written submissions all that was said in support of this ground was:

  The notion of “serious disadvantage” is referred to in the judgment paragraph 54.  Evidence was given by [the appellant] she was alone in the CRU with clients on a number of occasions.

  
  

  101               No error is demonstrated.  The approach taken by the primary Judge on serious disadvantage was consistent with the approach in Hurst and was correct.  This ground fails. 

  102               The next general topic under which the appellant’s argument proceeded was the notion of ‘unjustifiable hardship’ as a defence. 

  103               The argument in (ground 21) was that the primary Judge had erred in entertaining the question of unjustifiable hardship at all as it had not been raised in the respondent’s pleadings.  The appellant contended that the respondent did not plead in its defence nor raise at any stage of the trial until its final submissions any defence of unjustifiable hardship.  It was said to follow that it was wrong for the primary Judge to consider in any respect the topic of unjustifiable hardship in assessing the prejudice sustained by the appellant.

  104               Little oral argument was advanced to support this ground.  It has been dealt with above (at [90]-[93]).  Unjustifiable hardship was not treated as a defence by the primary Judge.  The ground fails. 

  105               Finally, the fourth general topic addressed in oral argument by counsel for the appellant was ‘evidence’.  This embraced grounds 14, 20, 12, 13, 10, 18 and 1 of the grounds of appeal.  The appellant claims there were ‘substantial errors’ with respect to the evidence accepted by the primary Judge. 

  106               The first ground advanced was ground 14 which claimed that the decision reached by the primary Judge was vitiated or alternatively tainted by numerous errors in connection with evidence and the effect of evidence ‘including’:

  (a)        the statement or finding (at [35]) that the respondent offered to purchase a TTY and that the appellant rejected the offer;

  (b)        the statement or finding (at [55]) that at the time the appellant was working approximately 15 hours per fortnight;

  (c)        the statement or finding (at [72]) that the appellant acknowledged that she could receive the information by means other than a qualified interpreter; and

  (d)        the statement or finding (at [137]) that the appellant did not apply for any positions offered by the respondent whereas in fact there was evidence of at least one application by her.

  107               On the first complaint at (a), the submission of the appellant is that the email of 20 October 2006 does not include such an offer from Ms Foster or indicate any failure to take up the offer by the appellant. 

  108               It is not the case that the primary Judge recorded that the offer was made on 12 October 2006.  His Honour said (at [35]) was:

  On 20 October 2006, Ms Gail Foster, the Residential Service Manager of [the respondent] and Deputy Chief Executive Officer, offered to purchase a TTY for [the appellant]. Earlier, on 12 October 2006, [the appellant] had brought the issue to Ms Foster’s attention by faxing to her a request for a TTY. It is unclear why Ms Foster’s offer was not taken up. I find [the appellant’s] response that she did not take up the offer for fear of losing more shifts to lack credibility. How could one realistically expect to lose shifts for taking up an offer from management for something which, on [the appellant’s] own evidence, she had been “pestering” for repeatedly?

  
  

  109               In evidence was a list of handwritten questions by the appellant sent by facsimile on 12 October 2006.  The content of the questions does point to the unfortunate tension and difficulty being experienced in the workplace.  The list reads:

  (1)        Why my Sunday shift gave to vacant?

  (2)        Why you never give me a new roster information?

  (3)        Why never give me extra work when staff are short?  Or when [the respondent] close.

  (4)        Why never let me finish work at 10pm only 800pm? Because I’m deaf or what??

  (5)        Why never let me know when next staff meet?

  (6)        Why I can’t communication with other clients?

  (7)        Why you said I took boys to meet Eddie in somewhere!! But why lie?

  (8)        Why not have a Deaf Wake training for all staff at Bungower what I have told you many times?

  (9)        Why you never let me to work with staff who can sign?  You always put me to work with staff who can’t sign?

  (10)      Why not have a page with vibrate or door’s be flash (deaf requirement) and don’t need to hear TTY.

  (11)      Why you told me off and argry (sic-angry) with me for open the front door for Leigh + Eddie? But the door are open!!!!

  (12)      Why you said I broke confidentiality?  But about what?

  (13)      Why you broke confidentiality you told Eddie you want 2 more staff out?  but who??

  (14)      Why you always tell me or other off front of clients, parents, staff??

  (15)      Why you always put new roster with hard for me to apply it with sleepover you knew I can’t sleepover and you try to avoid me?  or too much hours or not enough hour nothing the middle which suit me!!  You try to be clever!!

  (16)      Why you always give me a hard time and no support me for help all staff and clients to learn with sign.  They asked me to help them.

  (17)      Why you always show your body language like bad mood, temper, argry (sic-angry) to all staff and clients?  to make them not comfortable.

  
  

  110               In relation to the tenth question, in the email of 20 October 2006 from Ms Foster, she records ‘Jane has said on a number of occasions that she has an old TTY that she will bring in, we have offered to purchase one and she says she has one she doesn’t use’. 

  111               Even if a further offer of a TTY was not expressly articulated in the 20 October 2006 communication, it was certainly recorded that there had been offers which had been declined.  There was no suggestion in that communication that the offer would not continue to be open.  The distinction (if it be one) is of such a minor nature that it could not constitute appellable error. 

  112               As to (b), the finding (at [55] of the primary judgment) that the appellant was working approximately 15 hours per fortnight, the appellant advanced no reason why this finding was erroneous.  The original written submissions made reference to a 13 page document listing ‘employees’ previous earnings’ (Exhibit 3 at the trial).  It is quite unclear, as we were given no assistance, as to what should be drawn from this document.  Nothing in it obviously supports the complaint.  There was evidence from the respondent to the effect that the appellant was working approximately 15 hours per fortnight.  It was open for the primary Judge to accept that evidence.

  113               As to (c), the finding (at [72] of the primary judgment) that the appellant acknowledged that she could receive the information by means other than a qualified interpreter, the appellant argues that the existence of such an acknowledgement was not supported by her evidence.  Rather, her evidence was that she could not adequately participate in training sessions in circumstances where she had no option but to accept the assistance of the respondent’s staff as opposed to the use of qualified Auslan interpreters. 

  114               The paragraph which the appellant attacks in his Honour’s reasons is [72] which reads as follows:

  Despite her claims, [the appellant] acknowledged that she could receive the information provided in training sessions by means other than qualified Auslan interpreters. For example, on 17 July 2007, [the appellant] completed a training application form to attend a first aid training session. The form indicated that [the appellant] “would like a staff to help with interpreting Sally Gibbins or Ross Hiland [sic]” at the training session. [The appellant] said that this request was the result of her concern that an interpreter would not be booked, but the evidence indicates [the appellant’s] willingness to use staff members as interpreters at training sessions.

  
  

  115               There was a proper basis for the primary Judge to infer such an acknowledgment.  There was objective support referred to in [72] itself for her willingness to use staff members as interpreters.  No error is demonstrated. 

  116               As to (d), even if the appellant did apply for only one position, (although it is to be noted that the evidence tending to establish that fact was not identified), that does not necessarily negative the primary Judge’s observation (at [137]) that the appellant ‘admitted’ that she did not apply for any positions offered by the respondent.  It may make the admission incongruous given that there was but only one application.  More importantly it does not affect the thrust of the points made by his Honour (at [137]) as follows:

  [The appellant] admitted that she did not apply for any positions offered by [the respondent]. She stated that usually these positions did not suit her as they had a sleepover shift or conflicted with her classes. She also said that she sought to apply for some roster lines that had sleepovers but that [the respondent] was unwilling to re-arrange the roster line to remove the sleepover shifts. [The appellant] claimed that when [the respondent] hired new employees it was flexible in rearranging the roster lines.

  
  

  117               The account given by his Honour does acknowledge that the appellant sought to apply for some roster lines.  Once again, we were not taken to the portion of evidence on which the appellant relied to demonstrate the alleged error.  

  118               On considering the evidence on this topic at trial, the appellant swore two affidavits in the proceeding.  Each of them was lengthy.  In the second of those affidavits she said that she asked for extra shifts almost every month, saying, ‘there are many faxes and emails I sent about this.  Many of them are attached to my first affidavit’.  She goes on to say that she was given no assistance to get more work. 

  119               In her first affidavit to which she says ‘many’ of her requests for extra shifts were attached, there is one specific request on 19 December 2006 for extra shifts.  There is one further request for an extra shift which is undated (at 332 JD-25) (together with a number of complaints about non-allocation):

  I would like to extra shift when the roster with 2 vacant’s line and who is full it?  And it’s not from on-call?  I want to know why give Tammie a lot extra shift and more hours than me? I have been work there for a long time and still few hours to work and why?  Please tell me why and I have right to know. 

  Most of perm and causal (sic-casual) are always asking me “what the sign of something” I have to help them and I can’t say no and I have to be nice to them like a good team, so mean I’m work hard and no time for me to have a good chatting to all staff, but they are enjoyed chalting (sic-chatting) more then me. 

  I still don’t understand why most causal (sic-casual) are more hours shift then (sic‑than) me and unfair.  If you are not happy with my work and please tell me to try solve the problem.  And help me to stop worries all the time for nothing, because I can’t help myself and I feel something wrong with me mayby (sic-maybe) I’m bad or trouble or whatever with my work and I still don’t know what is wrong with me.  I’m always dong good work.

  
  

  120               A further application for extra shifts appears to have been contained in an email of 22 October 2007 from the appellant to Ms Julie Dunn of the respondent, the first line of which reads:

  New roster line with two vacant and I would like to an apply (sic- apply) for second bottom of roster line and remove only one shift Thrusday (sic-Thursday) because I am studying for cert 4 in disability.

  
  

  121               The extent of the appellant’s enthusiasm to apply for extra shifts is unclear from this email as she continues to say that she was available for an extra shift when the respondent was short-staffed but did not want too much in the morning shift as she preferred to work in the evening. 

  122               There are numerous written complaints by the appellant to the respondent.  Occasionally in those complaints there is a reference to the fact she has not been provided with extra shifts but the suggestion in her second affidavit that there were ‘many’ written requests for extra shifts attached to her first affidavit is manifestly incorrect. 

  123               This ground of appeal must fail. 

  124               The next ground (ground 20), is the complaint alleging the primary Judge’s failure to provide proper reasons for his acceptance and reliance on the evidence called for the respondent either generally or in relation to specific matters.  In support of this ground of appeal, the appellant referred to submissions made in support of grounds 6, 7 and 8 which have already been considered.  No additional submissions were advanced.  The outcome of ground 20 must be the same as the outcome of the earlier grounds.  It cannot be upheld. 

  125               The next ground argued under the topic of evidence was ground 12.  This was to the effect that the primary Judge erred in his approach to the question of the provision of a TTY (at [31]-[43]) because, without any or any proper reasons, he failed to take into account the totality of the evidence and, in particular, the evidence in Section B referred to in the Appendix to the appellant’s final written submissions.  No further submissions were advanced in support of this ground of appeal.  The ground simply refers to a large body of trial submissions without any attempt to indicate how that material supported the ground of appeal.  Without argument of a more specific nature being advanced it is not possible to uphold this ground of appeal. 

  126               The next ground falling under the topic of ‘evidence’ was ground 13 which repeated ground 12 but referred to Section G in the Appendix to the appellant’s written submissions.  Again, no specific submissions were advanced in argument in support of this ground other than to refer to paragraphs of the appellant’s affidavit of 2 April 2009 dealing with requests for a TTY.  It is unnecessary to recite the content of that material because the entire topic of a TTY was dealt with exhaustively in the primary Judge’s reasons.  The primary Judge explained why he preferred and accepted the evidence of the respondent’s witnesses on this topic.  This ground fails.

  127               The next two grounds under the general topic of ‘evidence’ dealt with expert evidence (grounds 10 and 18 of the grounds of appeal).  Ground 10 was a complaint that the primary Judge erred in failing to ‘consider’ the evidence of the psychologist, Mr Damian West, in connection with the acceptance or rejection of the appellant’s evidence or at all.  Ground 18 has already been addressed and concerned the evidence of Professor Branson. 

  128               Generally, in relation to these grounds, it may be accepted that the provision of qualified Auslan interpreters was, unmistakeably, at the heart of the appellant’s case.  The appellant said the finding that staff were able to ‘interpret’ for her at staff meetings ignored the expert evidence on that topic. 

  129               Ground 10 can be dealt with on the same basis as ground 19.  The evidence that the condition was imposed was accepted.  It was held not to be in breach of the Act as the condition in the particular circumstances was not shown to be unreasonable.  This ground also fails. 

  130               The final point in relation to evidence was ground 1 of the grounds of appeal that the primary Judge misconceived the application of Jones v Dunkel (1959) 101 CLR 298 and failed to analysis or provide any adequate explanation for declining to draw the inferences contended for by the appellant. 

  131               At [12] of his Honour’s reasons, the primary Judge said:

  [The appellant’s] submissions relied on Jones v Dunkel (1959) 101 CLR 298 to suggest that her evidence should be accepted uncritically on several issues. Many of the issues which her counsel referred to were ones on which [the respondent] called evidence from its witnesses. As counsel for [the respondent] observed, the principle in Jones will not assist in the creation of evidence, merely the drawing of inferences where this is supported by [the appellant’s] evidence. The evidence before the court on the relevant issues raised by [the appellant’s] application does not lead to the application of Jones v Dunkel, as there is nothing to suggest that [the respondent] failed to called (sic-call) evidence on any matters of material significance from witnesses it would have been expected to call.

  
  

  132               The submissions for the appellant at trial were that the witnesses called by the respondent were senior people within its organisation who were unable to contradict or elucidate a number of matters concerning the appellant’s claim as they did not work at the particular location where the appellant worked. 

  133               Shortly put, the submission for the appellant is that the unexplained failure to call those witnesses who could give evidence as to the day to day practices with which the appellant was confronted should lead to the inference that those witnesses would not have supported the case advanced for the respondent. 

  134               The difficulty with the appellant’s argument is that the onus rested on the appellant.  The primary Judge was not satisfied that the appellant discharged the onus and was not satisfied that the appellant was a reliable witness where evidence to the contrary from other witnesses was adduced.  The approach taken by the primary Judge to the application of Jones v Dunkel was entirely correct.  This ground fails.

  135               A supplementary issue under the topic of evidence generally was ‘further evidence’.  This has been briefly touched upon above.  The appellant sought to tender financial statements of the respondent in support of a suggestion that the respondent had ample financial capacity to provide the requisite assistance to the appellant. 

  136               The basis upon which the appellant sought to tender the financial statements was that they went to the unpleaded defence of unjustifable hardship.  The contention was that, if the appellant had known prior to the trial that such a defence was to be raised by the respondent, the appellant would then have considered whether to adduce evidence on the financial position of the respondent.  In the course of the appeal hearing the position taken by the Court was that it was unnecessary to receive the financial statements in evidence.  They simply illustrated the submission made for the appellant that the hardship defence was not an issue before the primary Judge and no amendment had been pursued in order to make it an issue.  However, as has been pointed out, the primary Judge did not uphold any unpleaded defence of unjustifiable hardship.  Rather, he pointed to the absence of evidence from the appellant to prove her affirmative case as pleaded. 

  137               For new evidence to be adduced on appeal, it must be shown that the evidence could not, with reasonable diligence, have been obtained for use at the trial and that the evidence is such that it would have had a significant influence on the result of the trial.  In considering the application to admit fresh evidence, the Court will have regard to the public interest in finality in litigation and will be reluctant to permit a party to patch up a case as it winds its way through the judicial system:  Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2) [2000] SASC 140.  The appellant has not shown that the evidence which she needed to support her assertion was unavailable or that its content would or should have affected the outcome of the trial.  The financial statements were not taken into evidence on the appeal.

  CONCLUSION

  138               None of the grounds of appeal has been upheld.  The appeal will be dismissed.  The appellant is to pay the costs of the respondent, to be taxed if not agreed. 

  I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Mansfield and McKerracher.

  
  
  
  

  Associate:

  Dated:         21 June 2010