FEDERAL COURT OF AUSTRALIA
Walker v State of Victoria [2012] FCAFC 38
IN THE FEDERAL COURT OF AUSTRALIA | |
ALEX WALKER (BY HIS NEXT FRIEND, PAIGE WALKER) Appellant | |
AND: | STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 280 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | ALEX WALKER (BY HIS NEXT FRIEND, PAIGE WALKER) Appellant
|
AND: | STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent
|
JUDGES: | GRAY, FLICK AND REEVES JJ |
DATE: | 22 MARCH 2012 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
GRAY J:
The nature and history of the proceeding
1 The appellant was born on 11 February 1995. He suffers from a number of disabilities, including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome. By his next friend (who is his mother), the appellant sued the State of Victoria, alleging a number of instances of unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”). The appellant was wholly unsuccessful and a single judge of the Court dismissed his proceedings. See Walker v State of Victoria [2011] FCA 258. Subsequently, the judge ordered that the appellant pay the respondent’s costs of the proceedings. See Walker v State of Victoria (No 2) [2011] FCA 417. This appeal is from both of those judgments.
2 On 25 January 2008, with the assistance of his mother, the appellant lodged a complaint with the Human Rights and Equal Opportunity Commission (now renamed the Australian Human Rights Commission) (in either case, “the Commission”), pursuant to s 46P of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (now retitled the Australian Human Rights Commission Act 1986 (Cth)) (in either case, “the Human Rights Act”), alleging unlawful discrimination by the respondent under the Disability Discrimination Act. On 9 September 2008, after a conciliation conference had been held, a delegate of the President of the Commission decided to terminate the complaint pursuant to s 46PH(1)(i) of the Human Rights Act, on the ground that there was no reasonable prospect of the matter being settled by conciliation. In accordance with s 46PH(2) of the Human Rights Act, the President’s delegate gave notice of the termination dated 9 September 2008. On 3 October 2008, the appellant by his next friend instituted proceeding number VID 829 of 2008 in this Court.
3 In response to objections by the respondent that the appellant was attempting to rely on events which had occurred after the making of the complaint on 25 January 2008, the appellant made a further complaint to the Commission on 17 April 2009. On 25 May 2009, the same delegate of the President of the Commission decided to terminate this complaint on the same ground. The delegate again gave written notice of the termination. On 28 May 2009, the appellant filed a further application in this Court, which became proceeding number VID 401 of 2009.
4 On 2 June 2009, the trial of proceeding number VID 829 of 2008 began. On that day, the appellant applied to have the two proceedings consolidated. The respondent did not oppose that application. The learned trial judge consolidated the two proceedings (although his Honour made separate orders in each of them when he delivered judgment and when he made orders as to costs).
5 The trial occupied some 21 days, finishing on 18 May 2010. Judgment was delivered on 23 March 2011, when the application in each of the two proceedings was dismissed. The trial judge also made orders for the filing of written submissions about costs. The respondent applied for an order for costs against the appellant. The appellant made no submissions in relation to costs. On 28 April 2011, the judge ordered that the appellant pay the respondent’s costs in each proceeding.
The legislation
6 At all times relevant to the events the subject of this proceeding, s 4(1) of the Disability Discrimination Act contained the following two relevant definitions:
disability discrimination has the meaning given by sections 5 to 9 (inclusive).
discriminate has the meaning given by sections 5 to 9 (inclusive).
7 The appellant relied on the definitions in ss 5 and 6 of the Disability Discrimination Act, but not on those in ss 7, 8 and 9. Sections 5 and 6 have been amended since the making of the appellant’s two complaints to the Commission and since the commencement of the two proceedings at first instance in this Court. The definitions that were current at those times are as follows:
5 Disability discrimination
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
8 Also at the relevant times, s 22 of the Disability Discrimination Act provided, so far as is relevant:
(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:
(a) by refusing or failing to accept the person’s application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
9 Section 31(1) of the Disability Discrimination Act provided, so far as is relevant:
The Minister may formulate standards, to be known as disability standards, in relation to:
...
(b) the education of persons with a disability
That power had been exercised. Section 32 provided, “It is unlawful for a person to contravene a disability standard.”
10 Section 42 of the Disability Discrimination Act provided, so far as relevant:
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
...
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
11 It should be noted that ss 22, 31, 32 and 42 are found in Pt 2 of the Disability Discrimination Act. Section 42 is in Div 4 of Pt 2, which is entitled “Offences”.
12 Section 3(1) of the Human Rights Act defines “unlawful discrimination” relevantly to mean:
any acts, omissions or practices that are unlawful under:
...
(a) Part 2 of the Disability Discrimination Act 1992...
and includes any conduct that is an offence under:
...
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992
Section 46P(1) of the Human Rights Act permits the lodging of a written complaint with the Commission, alleging unlawful discrimination. Section 46PA(1) provides that a complainant may amend the complaint with the leave of the President. By s 46PD, the Commission must refer the complaint to the President. Section 46PF(1) requires the President to inquire into the complaint and attempt to conciliate the complaint. Section 46PH permits the President to terminate a complaint on any of a number of grounds including that found in s 46PH(1)(i), namely that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation. Section 46PH(2) requires the President to notify a complainant in writing of a decision to terminate a complaint and of the reasons for that decision.
13 Section 46PO of the Human Rights Act provides relevantly as follows:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
...
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
14 Section 46PR of the Human Rights Act provides:
In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
15 All of the provisions of the Human Rights Act I have mentioned, with the exception of the definition of “unlawful discrimination”, are found in Pt IIB of the Human Rights Act. Section 49B of the Human Rights Act confers on this Court and the Federal Magistrates Court “concurrent jurisdiction with respect to civil matters arising under Part IIB”.
The appellant’s claims
16 The amended statement of claim dated 4 May 2009, on which the trial was conducted, is a perplexing document. The first allegation of discrimination is in para 14:
The respondent has discriminated against the applicant throughout the period since 2001 to the present time and it continues to discriminate by refusing and/or failing to accommodate his disabilities and by imposing conditions on his education.
The particulars of this allegation refer to a failure or refusal to provide proper funding for the applicant to receive full-time education; the imposition of a condition that the applicant attend Baimbridge College (“Baimbridge”) on a part-time basis (two mornings per week); the imposition of conditions while the appellant was at Branxholme Wallacedale Community School (“Branxholme”) that he not attend fully, that he leave the school at lunch times and that he not attend excursions; the invention and application of a funding regime discriminating against the appellant, because it fails to take his particular circumstances into account (of which further particulars are given); and the invention of rules “for the purpose of preventing the applicant travelling on the school bus”.
17 Paragraph 15A alleges discrimination “by refusing to make or not making any proper or adequate investigation of the assistance which the applicant requires by reason of his disabilities, and by ignoring or by refusing to take properly into account information [including opinions] [sic] from people who possess relevant expertise concerning the applicant’s disabilities.” The particulars to this allegation occupy some 28 pages of the amended statement of claim. They consist largely of references to the provision of information, advice or opinions by various persons, particulars of the recommendations made, particulars of the failure to take account of the information and the recommendations, and particulars of assistance which it is alleged the respondent should have provided. The last four pages of these particulars contain allegations of awareness by the respondent that the appellant had ADHD, behavioural problems and academic delay, particulars of failure to take account of those disabilities and that delay, and particulars of assistance it is alleged the respondent should have provided. Those four pages also contain allegations that from 2001 to 2009 the appellant was denied the opportunity to attend school on the same basis as others, of which there are further particulars supplied, and that the principals of both schools attended by the appellant refused to accept or act upon the recommendations of the respondent’s own regional staff in relation to the development of individual education plans and behaviour management plans.
18 In para 15B, it is alleged that the conduct described in the particulars to para 15A “is discriminatory as due to the refusal of the Respondent to consult and investigate, the Applicant was not given the adjustments he required to access his education.” In para 15C, it is alleged that the same conduct is discriminatory “as it breaches” certain specified provisions of the Disability Standards for Education 2005 (“the Disability Standards”), which are set out in the amended statement of claim itself.
19 Paragraph 16 of the amended statement of claim reads as follows:
By reason of his disabilities in accessing his education the applicant required and requires assistance −
(a) the formulation and provision of an Individual Education plan based upon proper information [including opinions of experts] concerning the applicant so as to address his disabilities;
(b) proper implementation of the Individual Education plan, and
(c) one to one assistance in his academic subjects from a teacher or teachers aide who is trained in the management of his disabilities and who can implement the Individual Education Plan.
20 Paragraph 17 then alleges that, in the absence of the required assistance, the appellant has “continually been exposed and continues to be exposed to gross personal prejudice and to” nine listed matters, being diminished educational outcome; diminished classroom participation; diminished access to the curriculum; diminished self esteem; frustration; anxiety; diminished enjoyment of, and participation in, the community; deterioration in wellbeing; and a deterioration in IQ.
21 Paragraphs 18 and 19 contain allegations of the respondent’s knowledge of the appellant’s disabilities. Paragraphs 20 and 21 allege the existence of the Disability Standards and that the conduct of the respondent towards the appellant “has and continues to constitute a breach of” those standards. The particulars of this allegation allege a failure to make reasonable adjustments; not allowing the appellant to participate in his education at the same level as his peers; not having developed an accessible curriculum for the appellant; and not having supported the appellant adequately.
22 Paragraph 22 alleges that the respondent has “indirectly discriminated” against the appellant “within the terms of s 6 of the” Disability Discrimination Act. This allegation is particularised as being the imposition of a requirement or condition that the appellant access his education without the assistance the appellant requires. It is alleged that the appellant is unable to comply with the requirement or condition, the majority of students without the appellant’s disabilities can comply with the requirement or condition and the requirement or condition is not reasonable having regard to the circumstances.
23 Paragraph 23 alleges that, contrary to s 5 of the Disability Discrimination Act, the respondent has treated the appellant less favourably than students without his disability. The particulars of this allegation allege that the respondent has not allowed the appellant to attend school full-time and that the respondent has not allowed the appellant to travel on the school bus in 2008.
24 Paragraph 24 alleges breach of s 42 of the Disability Discrimination Act. In the particulars, it is alleged that, on 20 May 2008, the principal of Branxholme, Mr Crossley, refused to allow the appellant to be on the school grounds “due to the lodging of the complaint of discrimination with the Australian Human Rights Commission.”
25 Paragraph 25 alleges that, contrary to s 22(2)(a) of the Disability Discrimination Act, the respondent discriminated against the appellant “during the relevant period by denying him access, or by limiting the Applicant’s access, to the benefit it provided.” The particulars allege a failure to provide the appellant with the requisite assistance with which to have access to the benefit it provided, being education, social activities in the form of excursions and supervised play. Paragraph 26 alleges that, contrary to s 22(2)(c) of the Disability Discrimination Act, the respondent discriminated against the appellant “during the relevant period by subjecting him to a detriment.” The particulars refer to a failure to provide adequate funding to the appellant, preventing him from attending full-time; and failure to seek advice and consult with the appellant’s treating practitioners, as described in the particulars to para 15A, causing the detriment outlined in para 27; refusing to allow the appellant to attend its grounds, causing embarrassment and distress to the appellant; refusing to allow the appellant on the school bus, stigmatising him and causing him distress. Paragraph 27 contains a list of detriments alleged to have been suffered by the appellant as a result of the alleged discrimination. The list is: diminished classroom participation; diminished access to the curriculum; decreased participation in the community; insubstantial or no academic progress generally; academic levels several years below his peers; unreasonable, wrongheaded and misconceived punishment and discipline; anxiety and frustration; behavioural problems; inability to attend school full-time; bans from some excursions; and diminished self esteem.
26 It is apparent that the appellant’s legal representatives have adopted the course of trying to include in the amended statement of claim as many allegations as they can that the respondent’s provision of education services to the appellant has been inadequate and misguided, without making any serious attempt to relate those allegations to the provisions of Pt 2 of the Disability Discrimination Act, in the light of the definitions in ss 5 and 6. References to those provisions occur only late in the amended statement of claim. The provisions are treated in the most cursory fashion. There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
The trial judge’s reasons for judgment
27 At [2] of his reasons for judgment, the trial judge found that it was common ground that the appellant suffered from a number of disabilities including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome. At [3]-[8], his Honour set out the appellant’s schooling history. From January 2001 to December 2006, the appellant attended Branxholme. For the first half of 2007, he attended a private school, which he was asked to leave because of his behaviour. During the second half of 2007, he received distance education and education through the Southern Grampians Adult Education Youth Program (“SGAE”). On 19 November 2007, he began attending Baimbridge on a part-time basis as part of a transition program. He attended Baimbridge on Mondays and Thursdays in the mornings, as well as attending SGAE for one and a half days per week and undertaking some distance education. In 2009, these arrangements continued as he pursued his studies in Grade 8.
28 In the course of some general comments about the case, at [65]-[67], the trial judge said:
It will, shortly, be necessary to essay, in some detail, an account of Alex’s educational and other experiences at Branxholme and Bainbridge [sic]. As will become apparent, there is no doubt that events occurred, in the course of his attendance at these schools, which may properly be considered to fall within paragraphs (a) and (c) of s 22(2). Alex was, for example, suspended on a number of occasions as a disciplinary measure. As a result he was denied access to the normal classroom learning activities provided by the schools. Whilst at school he was, sometimes, segregated from other students and, during these periods, was prevented from enjoying social interaction with them. He was not permitted to attend at least one school excursion. He was, for a period, denied the opportunity to experience travelling on the school bus.
Many of the complaints raised by Alex in advancing his indirect discrimination case related to alleged failures by the Department to make particular resources available in order to improve his educational opportunities. As will be seen, I have concluded that some of these allegations are unfounded. Others are not explained with sufficient precision to enable a finding to be made that any requirement or condition of the kind alleged was imposed. Yet others, on analysis, amount to allegations of direct rather than indirect discrimination. The one complaint which I have found to have substance was that a requirement was imposed on Alex that he “access” his education at Branxholme without “one-to-one assistance in his academic subjects”. The imposition of this requirement may, in my opinion, constitute a detriment for the purposes of s 22(2)(c) of the DDA.
The central question on these applications is whether conduct on the part of the Department which had the effects identified in s 22(2)(a) and (c), was discriminatory within the meaning of ss 5 or 6 of the DDA.
29 At [68], his Honour moved to dealing with the allegations of discrimination by less favourable treatment (as defined in s 5 of the Disability Discrimination Act). He identified five specific allegations of such discrimination against the appellant:
not permitting him to attend school during recess and lunchtime at Branxholme;
not permitting him to attend school excursions at Branxholme;
preventing him from attending Baimbridge at all during the third term of 2007;
thereafter preventing him from attending school full-time at Baimbridge; and
preventing him from travelling on the school bus during 2008.
30 At [70]-[72], his Honour discussed authorities, particularly the judgment of the High Court in Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92. The two points that his Honour made were that there is a need to establish a causal nexus between the appellant’s disability and the treatment of which he complained, and the requirement to consider the relevant circumstances when making the comparison required by s 5. With respect to the second of these matters, his Honour set out at length a passage from the joint judgment of Gummow, Hayne and Heydon JJ in Purvis at [222]-[225], in which their Honours said that the proper comparison for the purposes of s 5 of the Disability Discrimination Act is between the person with a disability and a person who behaves in the same way as the person with the disability, even though not disabled. This is so even though the disability is said to be the cause of the behaviour in the case of the person with a disability, and is unlikely to occur in the case of the person without the disability.
31 The trial judge then turned to examine the five allegations of discrimination by less favourable treatment. First, in relation to the recess and lunchtime regime at Branxholme, his Honour devoted [73]-[117] to making detailed findings of fact concerning a number of occasions on which the appellant had engaged in unacceptable behaviour in the school playground. The findings culminated in a reference to the development during 2005 and 2006 of a written student management plan at Branxholme, applying to all students and providing for action in the event of a contravention of the school’s student code of conduct. His Honour found that Branxholme’s responses to the appellant’s misconduct were guided by this plan. At [119], his Honour found that any other student without the appellant’s disabilities would not have been treated any differently from the way in which the appellant was treated. At [127], his Honour concluded that the appellant was not dealt with under the management plan less favourably than another student without the appellant’s disabilities would have been treated had he or she engaged in the same or substantially the same misconduct.
32 In relation to school excursions while the appellant was at Branxholme, at [130]-[134] his Honour made detailed findings about the excursions that the appellant had attended while at Branxholme, as well as the reasons for his exclusion from some excursions because of his behaviour. At [136], his Honour found that he was not satisfied that the appellant was prevented from attending school excursions while at Branxholme, save for the end of the year trip in November 2005. His exclusion on that occasion was prompted by the principal’s concern for the appellant’s safety and for the safety of fellow students.
33 The trial judge then dealt with the allegations that the appellant was prevented from attending Baimbridge during the third term of 2007 and thereafter prevented from attending Baimbridge full-time. At [138]-[168], his Honour made detailed findings, including findings about the appellant’s behaviour and the concerns of the principal of Baimbridge about that behaviour. At [169]-[170], his Honour made findings as to the time taken to prepare a smooth transition for the appellant into the secondary school environment, which explained why the appellant was not admitted to Baimbridge during term three in 2007. His Honour found that the appellant was not excluded because of his disabilities. At [171]-[172], his Honour found that the appellant attended Baimbridge on a part-time basis because he was also attending SGAE and pursuing distance education and because there was a concern to introduce him to the unfamiliar environment at Baimbridge slowly, so as not to place him under too much stress. His Honour found that the appellant was not prevented from attending Baimbridge on a full-time basis because of his disability.
34 His Honour then turned to the remaining allegation of discrimination by less favourable treatment, the allegation that the appellant was not permitted to travel to Baimbridge on the school bus in 2008. At [174]-[180], his Honour set out the history of this issue. The appellant’s parents made private arrangements for transporting him to Baimbridge during the first half of 2008. On 18 July 2008, the appellant’s mother raised for the first time the proposal that the appellant might travel on the school bus. The principal was concerned about the appellant’s behaviour. In September 2008, the principal said he would be prepared to reconsider the issue if he observed a consistent improvement in the appellant’s behaviour. There were further negotiations in November and December 2008, as a result of which it was agreed that, in 2009, Baimbridge would engage a supervisor to travel with the appellant on the bus for a trial period. This plan was implemented on 9 March 2009 and was successful, so that the appellant began travelling unsupervised from the start of term two in that year. At [180], his Honour accepted the principal’s evidence that it was because of his concerns about the safety of the driver and the other students travelling on the bus that he did not respond positively to proposals in the latter part of 2008. His Honour accepted that the principal did not discriminate against the appellant because of his disabilities. Nor did he treat the appellant less favourably than he would have treated other students who did not have such disabilities but in respect of whom he had the same concerns. They would not have been allowed to travel unsupervised.
35 The trial judge then turned to issues of discrimination by requirement or condition (as defined in s 6 of the Disability Discrimination Act). After discussing a number of authorities, at [194], his Honour said:
It is clear from these authorities that considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain. Nonetheless, a reasonable degree of precision is necessary when relevant requirements or conditions are being identified. A respondent is entitled to know what requirements or conditions it is said to have imposed on an applicant. In many cases this will not be difficult because the applicant will be relying on some written rule or prerequisite which has been formulated by the respondent. In a case such as the present, however, where an applicant seeks to rely on inaction by an educational authority, clarity of the claim is essential. Without it the respondent will be unable to determine whether it has or has not imposed such a condition or to formulate defences on the ground that one or more of the criteria prescribed by s 6 of the DDA have not been satisfied.
At [195], his Honour said that the necessary precision was “notably lacking” in the appellant’s case as pleaded and argued.
36 The trial judge then identified nine requirements or conditions that were said to be requirements or conditions with which the appellant was required to comply. The first was a requirement or condition that the appellant access his education without the formulation and provision of an individual education plan, based upon proper information, including opinions of experts, concerning the appellant so as to address his disabilities and the proper implementation of such a plan. His Honour discussed this alleged requirement or condition at length at [196]-[212]. He expressed criticisms of its formulation. He referred to evidence about individual education plans that were actually created at various stages of the appellant’s schooling. At [211], his Honour said that he did not consider that this requirement could be regarded as a “requirement” within the meaning of s 6 of the Disability Discrimination Act. In addition, his Honour did not accept that the appellant pursued his studies at Branxholme and Baimbridge without the benefit of an individual education plan.
37 The second alleged requirement or condition was that the appellant access his education without the formulation, provision and proper implementation of a behaviour management plan. His Honour discussed this alleged requirement at [213]-[219]. At [214], his Honour said that this was not a “requirement” of the kind comprehended by s 6 of the Disability Discrimination Act. Again, his Honour found that many reports were prepared in an effort to improve the appellant’s behaviour. There were also many discussions. A written behaviour management plan was prepared in July 2006. Objections to the plan by the appellant’s parents were considered. Another plan was considered in conjunction with an individual education plan in May 2008 and thereafter. At [218], his Honour rejected a submission that, because of his disabilities, the appellant ought not to have been subjected to the disciplinary regimes maintained at Branxholme and Baimbridge.
38 The third requirement alleged was that the appellant access his education without one-to-one assistance in his academic subjects from a teacher or teacher’s aide trained in the management of his disabilities, who could implement the individual education plan and behaviour management plan. This alleged requirement or condition was discussed at [220]-[228]. At [221], his Honour said that he was prepared to assume that there was an identified requirement to which s 6 of the Disability Discrimination Act applied. At [224], his Honour found that the appellant did not have one-to-one assistance at all times while he was at Branxholme. He did have such exclusive assistance at Baimbridge.
39 The fourth requirement or condition identified was that the appellant access his education without the assistance provided by program support group meetings. His Honour dealt with this allegation at [229]-[232]. His Honour found that, at both schools, groups were convened on a regular basis, involving the relevant class teacher and the appellant’s parents. Some meetings were attended by psychologists and other specialists. The appellant’s progress and conduct were reviewed and the groups devised education programs and strategies to assist the appellant. At [231], his Honour expressed his doubt that the absence of assistance from such a group had a sufficient proximate nexus to the provision of educational services to constitute a “requirement” for the purposes of s 6 of the Disability Discrimination Act. His Honour was not satisfied that any such requirement was ever imposed.
40 The next alleged requirement or condition was that the appellant not attend in the schoolyard during recess and lunchtimes at Branxholme and not join other students on school excursions. This was discussed at [233]-[236]. His Honour said that Branxholme did impose such limitations on the appellant at certain times, but they did not constitute a requirement within the meaning of s 6 of the Disability Discrimination Act because they were decisions which applied expressly only to the appellant.
41 At [237]-[239], the trial judge dealt with the alleged requirement or condition that the appellant only attend Baimbridge on two mornings per week. His Honour was prepared to accept that, at least for part of the time, such a condition was imposed on the appellant. It was not a requirement or condition within the meaning of s 6 of the Disability Discrimination Act, however, as it was specifically imposed on the appellant and was not on its face neutral, in the sense of being imposed on students generally.
42 At [240]-[242], his Honour dealt with an alleged requirement or condition that the respondent refused or failed to provide proper funding for him to receive a full-time education, especially at Baimbridge. His Honour said that this lacked the necessary precision, in that the level of funding that would be “proper” was not identified and “a full time education” was uncertain. The alleged condition had not been expressed with the required degree of precision.
43 At [243]-[246], the trial judge dealt with the other two alleged requirements or conditions, namely the application of a funding regime which discriminated against the appellant because it failed to take his particular circumstances into account, and the invention of rules for the purposes of preventing the appellant travelling on the school bus. His Honour found that both of these were simply complaints, and not requirements or conditions within the meaning of s 6 of the Disability Discrimination Act.
44 The trial judge then returned to the one requirement or condition he had found to fall within s 6 of the Disability Discrimination Act, namely the requirement that the appellant access his education at Branxholme without one-to-one assistance in his academic subjects. At [249]-[254], his Honour discussed the question of comparative groups, concluding that the students in the same class as the appellant at relevant times, or the student body as a whole at the particular school he was attending, were able to undertake their education as members of a class without the need for one-to-one assistance. It followed that the requirement that the appellant receive his education without such assistance was one with which a substantially higher proportion of his peers who were not similarly disabled were able to comply.
45 At [255]-[263], his Honour discussed the issue of reasonableness. His Honour pointed out at [258]-[259] that virtually no attention had been given in the appellant’s case to the circumstances of the case, to which attention was directed by s 6(b) of the Disability Discrimination Act. At [260]-[262], his Honour referred to the circumstances that had been disclosed by the evidence. At [263], his Honour concluded that he was not satisfied that, in all of the circumstances, it was necessary that the appellant receive one-to-one assistance from a teacher or an aide at all times when he was at school, or that it was unreasonable not to provide such a level of assistance.
46 His Honour then turned to the issue of the appellant’s inability to comply with the requirement or condition, as s 6(c) of the Disability Discrimination Act mandated. At [264]-[268], his Honour discussed this issue and concluded that he did not accept that the appellant was unable to receive education at Branxholme without one-to-one assistance in his academic subjects.
47 The next section of his Honour’s reasons for judgment, at [270]-[290], was devoted to the question of alleged contravention of the Disability Standards. His Honour was critical of the way in which the allegations had been pleaded, especially as they included allegations of events that occurred before the Disability Standards had come into operation. His Honour discussed individual provisions of the Disability Standards and concluded that no allegation of contravention had been made out.
48 At [293]-[330], the trial judge dealt with the complaint of victimisation, based on s 42 of the Disability Discrimination Act. His Honour discussed the evidence on this issue at length, referring to the failure of counsel for the appellant to challenge the evidence of the alleged victimiser, the principal of Branxholme, about crucial issues. His Honour concluded that the principal did not exclude the appellant from the school grounds on the occasion in question (when there was an after school hours football clinic in progress on the school premises) on the ground that the appellant had done any of the things identified in s 42(2) of the Disability Discrimination Act.
The amended notice of appeal
49 The amended notice of appeal contains 23 grounds. Some are general, others more specific. The grounds are divided roughly equally between allegations that the trial judge failed to take into account things that it is said he ought to have taken into account, and allegations of error in approach or in finding. With the exception of ground 6, the amended notice of appeal is silent as to any suggestion that there were findings that the trial judge ought to have made, or conclusions that his Honour ought to have reached. This form of the notice of appeal is not markedly different from the original notice of appeal filed, which was the subject of judicial comment at the callover of appeals for its failure to specify what the appellant said the trial judge ought to have done.
50 The amended notice of appeal does not seek orders in favour of the appellant with respect to his claims. It seeks the setting aside of the order dismissing the application and the consequent order for costs, and an order remitting the application to a single judge to be reheard. Even in a case in which nothing more than a retrial is sought, it is incumbent on a party seeking to appeal from a judgment dismissing an application to demonstrate to the appeal court that there were open on the evidence at the trial findings in favour of that party that would have resulted in success for that party. The almost total absence of any attempt to demonstrate that the appellant had made out his case at the trial makes it difficult for him to succeed in the appeal.
51 The first three grounds are directed to the suggestion that the trial judge failed to consider, or to have appeared to consider, or to have given reasons why he rejected, the appellant’s written submissions, which were handed up at the trial with appendices and tables attached. Ground 4 suggests that the trial judge failed to have any or any proper regard to a series of “fundamental factors”, concerned with the appellant’s age, his disabilities, his needs, and the consequences of his disabilities. Ground 5 alleges a failure to take into account that the appellant was entitled to benefits and advantages of the respondent’s guidelines in respect of students with disabilities.
52 Ground 6 is the only example of a ground in which the appellant specifies a finding that he says the trial judge should have made. The finding concerns the alleged ad hoc and arbitrary basis on which discipline was carried out by the respondent in relation to the appellant.
53 Ground 7 alleges that, in dealing with evidence that the appellant had been dealt with in the same way as any other student who had acted in the same manner would have been dealt with, the trial judge erred by failing to consider the appellant’s individual requirements and his need for reasonable adjustments, including a behaviour management plan specific to his disabilities.
54 The error specified in ground 8 is said to be deciding that Purvis was applicable.
55 Grounds 9-13 deal with the trial judge’s criticism of the way in which the appellant’s case was presented and conducted. It is said that there was error in determining that there was any relevant lack of clarity or precision in the appellant’s case; that the trial judge should have approached the case in accordance with s 46PR of the Human Rights Act; that the trial judge approached the case and the pleadings in an inflexible, technical and legalistic manner, inappropriate to benevolent or remedial legislation; that the trial judge appeared to have been prejudiced against the appellant by reference to the acts or omissions of the appellant’s lawyers; and that the trial judge erred in allowing case management considerations to intrude into his determination of the merits.
56 Grounds 14, 15 and 16 appear to be directed to establishing error in the way in which the trial judge dealt with the claim in relation to the Disability Standards.
57 Grounds 17 and 18 are directed to evidentiary matters, the former to the alleged absence of reasons for declining to draw inferences, particularly in relation to the absence of the respondent’s regional and specialist staff and teachers from the witness box, and the latter in relation to failure to uphold objections to the hearsay nature of the respondent’s evidence.
58 The remaining grounds are also directed to evidentiary matters. Ground 19 takes issue with a specific finding in relation to the victimisation allegation. Ground 20 complains of the rejection of the tender of the appellant’s workbooks. Ground 21 suggests error in determining that a particular witness was not an expert with relevant expertise. Ground 22 complains about the manner in which the trial judge approached the evidence concerning teaching aides. Ground 23 complains that the trial judge treated the evidence of teachers and school staff as expert evidence or independent expert evidence.
59 It is convenient to discuss the grounds of appeal, and the submissions made in support of them, by reference to the specific issues they raise.
The adequacy of the reasons for judgment
60 The first three grounds of appeal relate generally to the adequacy of the reasons for judgment of the primary judge. In those grounds of appeal, and in the written submissions relating to them, the appellant accuses the primary judge of failing to consider the appellant’s written submissions and the appendices and tables attached to them; failing to give adequate weight to those submissions, appendices and tables; failing to demonstrate in reasons that such consideration had been given and thereby denying the appellant procedural fairness; failing to deal with or explain actual references to the evidence in the appellant’s submissions, appendices and tables; and failing to disclose the basis for rejecting submissions concerning the topic of reasonableness.
61 The written submissions in support of those grounds go further. The appellant contends that it is not possible to discern a path of reasoning by which his Honour dealt with the appellant’s submissions, whereas it is said that his Honour dealt in detail with submissions of the respondent that were based on appeals to prejudices. It is alleged that the appellant’s submissions “do not appear to have been weighed, sifted, or otherwise dealt with.” It is suggested that the appellant’s submissions and related documents “make points which objectively, in the controversy, were telling, uncontroverted, and uncontrovertible.” The appellant accuses the primary judge of having “determined not to deal with the detail of the case presented on behalf of” the appellant. It is alleged that his Honour simplified, for convenience, but destroyed or denied the “vitality of the evidence, almost the entire process of credit, and fact-finding.” His Honour is accused of having “ignored the megatrends” of the appellant’s continued failure and exclusion and the continuing failure of the respondent to devise and implement proper responses. The findings of the primary judge are described as vague and generalised and are said to be inconsistent with or contrary to “an indepth [sic] excursus into the matters for judgment.” The written submissions repeat the allegation in the third ground of appeal that the primary judge did not deal with, or explain how he dealt with, the actual references to the evidence in the appellant’s submissions. In reference to his Honour’s apparent rejection of the appellant’s submissions on reasonableness, the appellant asserted that the determination of reasonableness employed “concealed discretions”, a term attributed to Julius Stone. The appellant asserted that, “Absent the disclosure of the factors acted upon, it is impossible either to understand what was determined, or to detect error.”
62 In late September 2009, at an advanced stage of the proceeding, and several months later than the date fixed by a timetabling direction of the primary judge, the appellant filed written contentions of fact and law. They are 12 pages in length. They include entire quotations of s 5(1), s 6 and s 42 of the Disability Discrimination Act, as well as s 2.1.1 of the Education & Training Reform Act 2006 (Vic). Together, these quotations occupy in excess of two pages. Also included are citations of authorities. The result is a very brief statement of the appellant’s case at first instance. The contentions of fact and law were said to have constituted part of the appellant’s final submissions.
63 The written submissions filed by the appellant following the conclusion of the evidence at the trial consisted of an outline of submissions 13 pages long, a five-page index to appendices which itself contained some submissions, nine appendices or attachments totalling 121 pages and four tables totalling 39 pages.
64 Much of what appears in the appellant’s submissions at first instance is manifestly irrelevant to any issue that could have arisen in the case. The submissions made in the outline of submissions are of the utmost brevity. The index to appendices contains in relation to each appendix references to the contentions of fact and law and the amended statement of claim that are simply lists of paragraph numbers. Such submissions as appear in the index are again brief. The appendices consist in part of submissions but predominantly of extensive quotations from the evidence that are said to support the submissions made in the index and repeated in the appendices. The first of the tables contains two columns, offering a comparison of what the appellant says was the respondent’s understanding of the appellant’s disabilities with what the appellant says are the facts of the appellant’s disabilities. The table contains quotations from the evidence. The second table occupies approximately half a page and is said to set out comments on professional development sessions recorded at the appellant’s two schools. The third table contains 20 pages dealing with evidence of alleged “General and Unfounded Criticism of the Walkers”. It is not clear why the primary judge should have been concerned with such a topic. The fourth table again has two columns, for the purpose of comparing what the appellant said was the understanding and support required by the appellant, with what the appellant received. Again, it consists of quotations from the evidence.
65 Thus, although apparently lengthy, the appellant’s written submissions consisted largely of quotations from the evidence. Further, their usefulness was limited, in that for the most part the evidence quoted was that which was chosen by the appellant’s legal representatives as evidence they could call in aid of the findings they sought from the primary judge. With the exception of the first table, there is no attempt to refer to the totality of the evidence on a particular topic, and to make submissions that might have assisted his Honour in the fact-finding process by advancing reasons as to why the items of evidence that were said to favour the appellant’s case should be preferred to those which were to the contrary. Part of the duty of counsel in any case involving a conflict of evidence is to provide such assistance to the fact-finder.
66 To test the allegations that the trial judge failed to have sufficient regard to the appellant’s written submissions, it is instructive to look at the way in which his Honour dealt with one aspect of the case, the allegation that the appellant required assistance from an aide on a one-to-one basis at all times. The assertion of such a requirement is found in Appendix A, the longest of the appendices to the appellant’s written submissions, which deals with a failure to provide the appellant with individual education plans. The assertion that the appellant required an aide for one-to-one assistance at all times is followed by references to three items of evidence. The first is a quotation from Ms Smith, the appellant’s class teacher for four years at Branxholme. Ms Smith is quoted as having said:
Alex still had a tendency to have a less than positive attitude towards his work and constantly required adult direction and supervision to remain on task and complete activities.
Ms Smith’s use of the word “still” suggests that this passage, read in its context, might have related to a particular point in time. It is noteworthy, however, that evidence of a constant requirement of adult direction and supervision is not evidence of a full-time requirement of a teacher’s aide on a one-to-one basis. The second item of evidence is from a statement of Mr Vecchiet, the principal at Baimbridge. It is clear from the passage that Mr Vecchiet was attempting to refute a statement by the appellant’s mother to the effect that the appellant knew when he needed and did not need help from an aide or other staff member. Mr Vecchiet said:
In our experience, this is simply not correct. Alex will frequently, unless there is some encouragement or urging, cease to be engaged in the education process at the school.
The third item of evidence was from cross-examination of Mr Vecchiet by counsel for the appellant. The question was as to why Mr Vecchiet wanted further support for the appellant, and whether Mr Vecchiet was getting enough to support the appellant already. The response was to the effect that the appellant’s parents had asked for extra time at Baimbridge. Mr Vecchiet then said:
I was of the belief, and I still am, that Alex required one to one [sic] supervision and assistance and that if we were going to extend Alex’s time and vary his program we would require more assistance for Alex.
Again, the point needs to be made that neither of these statements supports the proposition that the appellant required one-to-one assistance from a teacher’s aide at all times.
67 Following these items of evidence, there is the submission that the appellant did not receive one-to-one assistance from an aide at Branxholme. The point is made that there is no claim by the respondent that there was an aide in the appellant’s classroom in 2002 and 2003. There are then references to evidence. One is from Ms Smith, who appears to have been saying that an aide came in for one or two mornings a week to help in a literacy block. The second item was from a statement of Mr Crossley, the principal of Branxholme during part of the appellant’s time there, who said that an aide was in the appellant’s classroom at least 70% of the time and occasionally two aides were there at the same time. The comment is then made that this was in the context of the appellant being in a class that had children with severe intellectual disabilities and aides were provided for a class as a whole rather than for the appellant. The third item is from the oral evidence of Ms Smith to the effect that the appellant did not have anything like a one-to-one full-time qualified teacher assisting him at Branxholme. These items of evidence support the proposition that the appellant did not have full-time, one-to-one assistance while at Branxholme (although they do not support the proposition that he did not receive one-to-one assistance from an aide at Branxholme).
68 The trial judge dealt with this issue at [220]-[228] of his reasons for judgment of 23 March 2011. His Honour did so in the context of determining whether a requirement had been imposed on the appellant that he access his education without one-to-one assistance in his academic subjects from a teacher or teacher’s aide trained in the management of his disabilities and able to implement the individual education plan and behaviour management plan. That was the manner in which the requirement had been alleged. His Honour was prepared to assume in the appellant’s favour that a requirement in these terms was one to which s 6 of the Disability Discrimination Act applied. At [224], his Honour made a specific finding that the appellant did not have one-to-one assistance at all times whilst he was at Branxholme, if that term was to be understood as requiring the exclusive attention of a teacher or teacher’s aide. His Honour then detailed the assistance that the appellant had received while at Branxholme. At [226], his Honour appears to have accepted the evidence of the two successive men who were principals of Branxholme during the appellant’s time there that the degree of individual support accorded to the appellant was more than sufficient to meet his needs. At [228], his Honour pointed to the absence of evidence that the teachers and aides at Branxholme were not trained to manage the appellant’s disabilities and could not implement the individual education and behaviour management plans drawn up to assist him. In other words, his Honour rejected the proposition that the appellant had been required to access his education subject to a requirement or condition in the terms in which the appellant had framed that requirement or condition. This was all that his Honour was required to do. The manner in which his Honour dealt with the issue showed that he made findings that accorded with the evidence on which the appellant had relied as to what was and was not provided to the appellant at Branxholme. His Honour also relied on other evidence, to which the appellant’s written submissions did not refer, to make other findings that gave substance to the provision of assistance. The appellant’s written submissions would have been of no assistance to his Honour in relation to this last step.
69 The allegations of his Honour’s neglect of the appellant’s written submissions were not supported on appeal by any form of detailed reference to specific findings and conclusions which might have been liable to be changed or reversed if reference to some specific passage in the appellant’s written submissions had been made by the trial judge. No attempt was made to justify by a specific reference the assertion that the written submissions made points that were “telling, uncontroverted, and uncontrovertible.”
70 The trial judge’s reasons for judgment of 23 March 2011 occupy almost 78 pages and consist of 331 paragraphs. They deal with all of the issues identifiable from the amended statement of claim, the appellant’s contentions of fact and law and the appellant’s written submissions as issues that could be related to provisions of the Disability Discrimination Act. His Honour was not required to set out absolutely every detail of the evidence relevant to the findings he made. He was not required to deal with every submission that was made on behalf of the appellant, particularly in the case of submissions that did not relate to any issue in the case (such as submissions about antipathy to the appellant’s parents). The criticisms made in this appeal of his Honour’s reasons for judgment are unfounded.
The fundamental factors
71 Ground 4 identified seven “fundamental factors”, which it was said that the trial judge had failed to have any or any proper regard to. These so-called “fundamental factors” are: the appellant’s infancy and status as a person under a legal disability; the fact that the appellant was a person with disabilities; the appellant’s specific disabilities; the appellant’s needs arising from his specific disabilities and his need for reasonable adjustments; the procedures and guidelines in respect of students with disabilities; the extent to which the appellant’s behaviour was a consequence or part of his disabilities; and the extent to which the appellant’s behaviour was a result of the failure of the respondent to provide proper assistance. Supplementary to these allegations was ground 5, in which it was alleged that the trial judge failed to take into account a relevant consideration, that the appellant had entitlements to benefits and advantages under the respondent’s guidelines in respect of students with disabilities.
72 These grounds illustrate more than any other the fallacy of the appellant’s approach to this case. The assumption underlying the case appears to be that, because the appellant has disabilities that manifest themselves in behaviour that would not be tolerated if exhibited by other students in a school, the respondent was obliged to treat the appellant differently from the way it would have treated those other students, by making allowances or adjustments for his condition and its consequences. So to regard the case is to ignore the legislation on which it is necessarily based, the Disability Discrimination Act. Provisions referring to the making of reasonable adjustments were not inserted into the definitions of discrimination in ss 5 and 6 of the Disability Discrimination Act until after the events to which this case relates had occurred. Like it or not, the appellant had to bring his case within the provisions of the Disability Discrimination Act, as they applied to discrimination in the provision of education services, if he were to succeed. It is clear that the Disability Discrimination Act was not an adequate vehicle for addressing all of the complaints that the appellant’s parents had about the adequacy of the services provided to the appellant by the respondent in the schools he attended. For this reason, much time appears to have been wasted at the trial in the pursuit of allegations that the respondent could, and should, have done more to accommodate the specific disabilities of the appellant and their consequences. The trial judge could not put aside the Disability Discrimination Act and deal with the appellant purely on the basis that he was needy. There was no foundation provided for the submissions made that an Australian Court dealing with a child, especially a child with disabilities, is “legally required to be aware of the best interests of the child”, or of a requirement that the Court be “mindful of the child’s vulnerabilities.”
73 The assertion that, if a full consideration of the disabilities, and of what they mean and entail from a behavioural and educational perspective, is absent, then the judgment is flawed runs counter to the judgment of the High Court in Purvis. When dealing with discrimination by less favourable treatment, it is clear that the proper comparator is a student with the same behavioural characteristics, but without the disabilities, of the student in respect of whom such discrimination is alleged. In the case of discrimination by requirement or condition, it is necessary for the person alleging discrimination to establish the existence of a requirement or condition that satisfies the criteria in s 6 of the Disability Discrimination Act. So far as the appellant’s case was concerned with discrimination in the provision of education services, contrary to s 22 of the Disability Discrimination Act, it needed to focus on the definitions in ss 5 and 6. An allegation of contravention of a disability standard, pursuant to ss 31 and 32 of the Disability Discrimination Act, and an allegation of victimisation in contravention of s 42 of the Disability Discrimination Act (if such an allegation could be made in the proceeding) may raise different considerations. No provision of the Disability Discrimination Act empowers the Court to undertake a general inquiry into the best interests, or the vulnerability, of a child with disabilities. Whatever provisions guidelines adopted by a State with respect to students with disabilities might make, and whatever benefits or expectations such guidelines might create, they are not the subject of enforcement under the Disability Discrimination Act. There was no occasion for the trial judge to consider the extent to which the appellant’s behaviour was a consequence or part of his disabilities. There was even less occasion for considering whether any failure by the respondent to provide “proper assistance”, whatever that might mean, might have exacerbated the appellant’s condition.
74 When counsel for the appellant was asked in the course of the hearing of the appeal whether he could point to any part of the appellant’s written submissions at the trial stressing the so-called “fundamental factors”, he was unable to do so. It is difficult to argue that the trial judge fell into error by failing to make findings that the appellant did not then invite him to make.
75 In any event, there is nothing to suggest that the trial judge was unmindful of the plight of the appellant. His Honour made specific findings as to the disabilities from which the appellant suffers. Much of his Honour’s treatment of the facts was concerned with the manner in which those disabilities impacted on the appellant’s progress at school and the behavioural difficulties that were the result of his disabilities. His Honour did not treat the appellant as being exempt from the need to bring his case within the terms of the Disability Discrimination Act in order to succeed. His Honour did not depart from Purvis by holding that the respondent was required to treat the appellant more favourably than it did other students who behaved in like manner. These things his Honour could not do.
Behaviour plans and discipline
76 The only ground in the amended notice of appeal in which there is any suggestion of a specific finding that the trial judge ought to have made is ground 6. There it is suggested that his Honour should have held that the respondent disciplined the appellant on an ad hoc or arbitrary basis, without consideration of the appellant’s disabilities. It is said that the trial judge should have held that such discipline constituted discrimination. In support of this ground, the appellant’s submissions on appeal simply say that the trial judge’s reasons “do not delve into whether, and if so how, the Appellant’s disabilities did or might rationally have informed the discipline imposed on Alex.” It is said that the absence of such consideration by his Honour made it impossible to decide whether such discipline constituted discrimination.
77 The submission is difficult to understand. It appears again to be a suggestion that his Honour ought not to have followed Purvis. What is lacking in the submission is any specific reference to evidence, any formulation of a finding that could have been made on the basis of such evidence, and any demonstration of how that finding might have resulted in a conclusion that there had been unlawful discrimination against the appellant within the terms of the Disability Discrimination Act.
78 Ground 7 complains of the trial judge’s acceptance at [125] of the evidence of the two successive principals of Branxholme during the appellant’s time there that they dealt with the appellant in the same way as they would have dealt with any other student who acted in the same manner. The complaint is that his Honour failed to consider the appellant’s individual requirements, and his need for reasonable adjustments, including a behaviour management plan specific to his multiple disabilities. Once again, that was something that his Honour could not do. There was no room in the relevant definitions of discrimination in the Disability Discrimination Act for his Honour to conclude that there was discrimination resulting from a failure of the respondent to treat the appellant more favourably than it would have treated other students, or a failure of the respondent to make a specific behavioural management plan for the appellant, accommodating the consequences of his disabilities.
79 Ground 8 complains that the trial judge applied Purvis. His Honour was bound to do so. No submission was made to the effect that Purvis could be distinguished, save for the suggestion that Purvis was a case involving a secondary school student and inapplicable to the case of a student at a primary school, as the appellant was for part of the time to which this case related. That proposition is obviously untenable.
The presentation of the case
80 Grounds 9-13 of the amended notice of appeal raise issues about the trial judge’s concerns with how the appellant’s case was pleaded and put. It is suggested that his Honour was obliged to focus on the evidence, and not on any lack of clarity or precision in the pleading. It was argued that s 46PR of the Human Rights Act, and the fact that the Disability Discrimination Act is benevolent or remedial legislation, should have caused his Honour to overlook any inadequacies in the pleadings and to do substantial justice according to the merits of the case. Ground 12 alleged that the trial judge was or appeared to have been prejudiced against the appellant by reference to the acts or omissions of his lawyers. Ground 13 suggested error by the trial judge in allowing case management considerations to intrude into his determination of the merits.
81 In fact, the trial judge’s approach to the way in which the case was put was far from legalistic. His Honour devoted a significant part of his reasons for judgment at [53]-[67] to a discussion of the issues that arose and to the differences between the appellant’s parents and the officers of the respondent as to the adequacy of the provision of education services for the appellant. At the end of that discussion of substance, his Honour concluded correctly that he had to focus on the definitions of discrimination in ss 5 and 6 of the Disability Discrimination Act. His Honour then proceeded to do exactly that, not by reference only to the pleadings, but by reference to the issues that had arisen on the evidence in the course of the trial. His Honour paid specific attention to the terms in which the appellant’s case had been pleaded only in relation to two issues. One was the identification of requirements or conditions with which it was said that the appellant was required to comply. It was important that his Honour scrutinise these carefully, because of the terms of s 6 of the Disability Discrimination Act. The other issue was the appellant’s complaints about the respondent’s failure to comply with the Disability Standards. In that respect, his Honour was struggling to work out what it was that the appellant was claiming. Even so, at [275] his Honour ignored the confusion attending the pleading and did his best to deal with what he understood to be an allegation of contravention of s 32 of the Disability Discrimination Act. Far from regarding himself as bound by technicalities or legal forms, but within the limits imposed by the concept of the exercise of judicial power, his Honour definitely focused on the substance of the case.
82 His Honour did make criticisms of the appellant’s lawyers. At [15]-[22], his Honour discussed the course of the trial. His discussion included a criticism of those acting for the appellant in respect of non-compliance with procedural directions, particularly a direction to exchange contentions of fact and law with the respondent prior to the commencement of the trial. His Honour criticised counsel for the appellant for failing to open the case with precision and in sufficient detail to ensure that his Honour and the respondent understood the case that was being put. His Honour was also critical of counsel for the appellant in respect of wasting time in cross-examination on matters that were irrelevant or barely relevant.
83 Legal practitioners are expected to behave in a professional manner. Compliance with interlocutory orders of courts containing procedural directions is a most important aspect of a legal practitioner’s duties both to the Court and to the client. In the present case, as his Honour pointed out, failure on the part of those acting for the appellant to comply with procedural directions necessitated the fixing of additional directions hearings and the revision of the timetable for preparation of the case for trial. This was unacceptable. It was appropriate for the trial judge to criticise the appellant’s legal practitioners in this respect, and to make it clear to the parties, and to the appellant’s parents, that the length of time taken to bring the case to trial was greater than necessary, owing to the neglect of the appellant’s representatives. Part of the function of reasons for judgment is to explain to the losing party why the case has been lost. This involves pointing out what the relevant issues were and how it was that the losing party failed to succeed on one or more of those issues. If there has been extensive cross-examination of witnesses that did not contribute to the making of findings by the Court, it is appropriate that the losing party should not be left wondering why the judge did not take into account that cross-examination.
84 It is not the case, as the appellant’s submissions suggested, that the trial judge should have refrained from criticism, but should, if necessary, have reported the legal practitioners to the appropriate authorities. The criticisms his Honour made were entirely appropriate in the circumstances of the case. They did not demonstrate prejudice against the appellant by reference to the acts or omissions of his lawyers.
85 Ground 13 of the amended notice of appeal assumes that there is a distinction between case management considerations and the determination of the merits. It refers to error in allowing the former to “intrude into” the latter. In fact, case management is directed to the just and efficient determination of the merits of cases. The two are not separate. They are part of the one process. To the extent to which legal practitioners fail to carry out the steps required of them in case management, the system of justice and the interests of their own clients suffer. It is appropriate for a judge to point out such failure when it occurs.
Disability Standards
86 Ground 14 of the amended notice of appeal alleges that the trial judge erred in law in failing to have proper regard to, or misconstrued, the provisions of the Disability Standards concerning “consultation”. His Honour dealt with the issue at [284]-[285] in relation to both ss 5.2(2) and 6.2(2) of the Disability Standards. At [284], his Honour said:
both provisions require a school to consult a student or his or her parents about prescribed matters. They do not, however, require that such consultation take any particular form or occur at any particular time. Those involved may meet formally or informally. Discussions can be instigated by either the school or the parents. Consultation may occur in face-to-face meetings, in the course of telephone conversations or in exchanges of correspondence. Once consultation has occurred it is for the school to determine whether any adjustment is necessary in order to ensure that the student is able, in a meaningful way, to participate in the programmes offered by the school. The school is not bound, in making these decisions, by the opinions or wishes of professional advisers or parents. The school is also required to determine whether any reasonable adjustment is possible in order to further the prescribed aims. There may, therefore, be cases in which an adjustment is necessary but no reasonable adjustment is able to be identified which will ensure that the objectives contained in the relevant Disability Standards are achieved.
87 At [285], his Honour referred to the extensive account of the consultation and adjustment processes which had been provided earlier in his reasons for judgment. He concluded that both schools engaged in extensive consultations with the appellant’s parents. The consultation was both formal and informal. Recommendations contained in reports by experts were considered and acted upon. Many adjustments were made to assist the appellant. Suggestions for adjustments came from principals, teachers, experts and the appellant’s parents. As his Honour said, some were agreed, some were not. At [286], his Honour concluded that these processes ensured that the requirements of the relevant parts of ss 5 and 6 of the Disability Standards were met. It is difficult to see how his Honour erred in this respect.
88 The submissions relating to ground 14 contained one of several references in the appellant’s written submissions to PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VSC 327. It was submitted that the consultation provisions of the Disability Standards should have been construed in accordance with that case. There was no reference, either in written submissions or oral argument, to any specific passage in that case. The case concerned provisions of Victorian legislation, including the Charter of Human Rights and Responsibilities Act 2006 (Vic) (of which there is no counterpart in the federal sphere), so far as they bore upon the appointment of a guardian, or an administrator of the estate, of a person with a mental disability. It was never made clear which principles to be derived from the very long reasons for judgment in that case should be regarded as relevant to the present case.
89 Ground 16 of the amended notice of appeal accused the trial judge of having failed to address the allegations made in paras 20 and 21 of the amended statement of claim and paras 21 and 22 of the appellant’s contentions of fact and law. Those allegations related to failure to make reasonable adjustments for the appellant (s 3); not allowing the appellant to participate in his education at the same level as his peers (s 5); not developing an accessible curriculum for the appellant (s 6); and not supporting the appellant adequately (s 7) as well as not properly consulting the appellant, his associates and/or his treating practitioner (ss 3, 5, 6 and 7).
90 The simple answer to this ground is that his Honour did address each of those issues. Section 3 of the Disability Standards was dealt with at [276]-[277]. Section 4 was dealt with at [278]-[280]. Sections 5 and 6 were dealt with together at [281]-[286]. Section 7 was dealt with at [287]-[290]. The suggestion that his Honour failed to deal with claims made by the appellant must be rejected. His Honour did not uphold those claims. No doubt the appellant would prefer that he had done so, but more is needed to make a ground of appeal than the simple proposition that the appellant has lost on an issue.
Reasonableness
91 Ground 15 of the amended notice of appeal says that the trial judge erred in his conclusions regarding the reasonableness of the steps taken by the respondent, by focusing on the local school as distinct from the respondent as a whole. The appellant submitted that his Honour permitted considerations pertinent to the acts of local officials, teachers and principals, to intrude irrelevantly into a consideration of the acts of the respondent as a department of the State of Victoria. The result was to shift attention to human actors who were deprived, as was the appellant, of the funds to do better. Attention was diverted from the resources of the State and its education department as a whole.
92 It is not entirely clear to what findings this argument is directed. The absence of reasonableness is an element of discrimination by requirement or condition under s 6 of the Disability Discrimination Act. In the present case, it was not an element that his Honour had to consider, because his Honour did not find that the appellant was required to comply with any requirement or condition that otherwise fell within s 6. Nor did his Honour have to deal with the question of reasonable adjustments for the purposes of the Disability Standards, because his Honour found there was no contravention of any provision of the Disability Standards on other grounds. When his Honour did make comments on the reasonableness of actions taken by officers of the respondent, he was doing so as part of his reasoning in relation to issues other than reasonableness.
93 In any event, the suggestion that the situation of teachers and principals at the schools attended by the appellant was irrelevant to the reasonableness of steps taken, or not taken, by the respondent is absurd. In determining reasonableness, the circumstances must all be taken into account. Ground 15 appears to be another example of the appellant attempting to assert that, because he is a disabled student, all that his parents considered necessary for his education ought to have been provided. Such a case is not sustainable in terms of the Disability Discrimination Act.
Victimisation
94 Ground 19 of the amended notice of appeal is directed to the way in which the trial judge dealt with the appellant’s claim that Mr Crossley had victimised him by refusing to allow him to remain on the school premises at Branxholme (where the appellant was no longer a student) during the conduct of a football clinic. Mr Crossley had spoken to the appellant’s parents, who were sitting in a car outside the school premises. The trial judge set out in detail the evidence concerning an altercation that developed between Mr Crossley and the appellant’s parents. His Honour’s analysis of the evidence included the following at [322]:
Mr Crossley acknowledges having said to Mrs Walker, towards the end of their exchange, that she was already “suing the school”. He said that he made this remark to emphasise his concern about Alex’s behaviour because the school was being sued as a result of another incident in which Alex had been involved. Mr Crossley was not asked to identify the nature of the incident or to provide details of the litigation to which he referred. If Alex, acting through Mrs Walker, was the plaintiff in such litigation, Mr Crossley’s remark that she was “already suing the school” could be understood as a reference to that litigation. If, on the other hand, the litigation involved the school being sued by somebody else by reason of something Alex had done, then the remark is less comprehensible. The position is left uncertain because Mr Crossley was not called on to clarify his evidence in this regard.
95 At [326], the trial judge found that it was more likely than not that Mr Crossley did refer to the appellant’s parents as “suing the Department”. His Honour said that this was taken by them, mistakenly, to be an allusion to the making of their complaint. His Honour considered it more likely than not that Mr Crossley was referring to a separate legal proceeding and not to the lodging of the disability discrimination complaint. Ground 19 suggests that there was no “permissible basis” for the trial judge to “find or decide” that Mr Crossley’s statement that the appellant’s parents were suing the department referred to some legal proceeding other than the lodging of a complaint under the Disability Discrimination Act.
96 In his witness statement, which he adopted in the witness box, Mr Crossley said that he requested that the appellant’s parents supervise the appellant adequately while he was on the premises, because there were younger children present and the appellant had a history of engaging in rough play with younger children. He said plainly that his request “had nothing to do with the fact that [the appellant’s mother] was suing the school for discrimination.” The greatest problem that the trial judge faced in dealing with this issue was that, despite spending some two days cross-examining Mr Crossley, counsel for the appellant never cross-examined about that issue. Without the assistance of any challenge to the evidence of Mr Crossley in this respect, it is not surprising that the trial judge accepted the evidence. His Honour regarded himself as dealing with the issue of victimisation by reference to the criminal standard of proof, beyond reasonable doubt. At [320], his Honour had already said that the unsatisfactory state of the evidence did not allow him confidently to determine whether Mr Crossley merely requested that the appellant’s parents closely supervise the appellant or whether he directed that the appellant be removed from the school grounds. It is no surprise that, at [329], his Honour said that he was not satisfied beyond reasonable doubt that the making of a complaint to the Commission in January 2008 was a substantial and operative reason for any request by Mr Crossley that the appellant’s parents supervise the appellant or any direction by Mr Crossley that the appellant should be removed from the school premises.
97 The question of the onus of proof leads to a difficult issue in relation to victimisation. It is abundantly clear that s 42 of the Disability Discrimination Act creates a criminal offence. The section is found in Div 4 of Pt 2 of the Disability Discrimination Act. The heading for Div 4 is “Offences”. Section 42(1) provides that the maximum penalty for an offence of victimisation is imprisonment for six months. Section 12A of the Disability Discrimination Act expressly imports Ch 2 of the Criminal Code (found in the Schedule to the Criminal Code Act 1995 (Cth)), except for Pt 2.5 (which relates to corporate criminal responsibility), with respect to all offences against the Disability Discrimination Act.
98 It is undeniable that a complaint can be made to the Commission in respect of victimisation, pursuant to s 46P(1) of the Human Rights Act. Such a complaint may be made “alleging unlawful discrimination.” The definition of “unlawful discrimination” in s 3(1) of the Human Rights Act specifically “includes any conduct that is an offence under...Division 4 of Part 2” of the Disability Discrimination Act. There is a question whether, when a complaint has been terminated and a proceeding may be commenced in this Court or the Federal Magistrates Court, pursuant to s 46PO(1) of the Human Rights Act, such a proceeding can be commenced in respect of conduct that amounts to an offence. The specific conferral of jurisdiction to deal with an application is found in s 49B of the Human Rights Act. Jurisdiction is conferred on this Court and the Federal Magistrates Court only with respect to civil matters. The general conferral on this Court of jurisdiction in any matter arising under an Act of the Commonwealth Parliament, found in s 39B(1A)(c) of the Judiciary Act 1903 (Cth) contains a specific exclusion of “a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”
99 It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37]-[41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether “conduct that is an offence” under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court.
100 These questions were not argued fully in the present case, and there is no need to answer them. They do need to be the subject of authoritative answer.
Matters of evidence
101 Ground 17 invokes the principle in Jones v Dunkel (1959) 101 CLR 298. That principle relates to the unexplained failure of a party to call a witness who is available to be called by that party and who might reasonably be supposed to be able to give evidence about a particular matter. Such a failure can have two consequences. One is that a court can more easily accept evidence on which the opposing party relies in respect of the matter in question. The other consequence is that a court might more easily draw an inference in favour of the opposing party, that is open on the evidence, because it can be concluded that the evidence of the missing witness would not have assisted the party who has failed to call him or her about the matter the subject of the inference.
102 The witnesses to whom ground 17 refers are the respondent’s “regional and specialist staff and teachers”. Ground 17 does not refer to any specific matter about which it is said that the trial judge ought to have accepted evidence on which the appellant relied, which the trial judge did not accept, because a specified witness was not called to give evidence. Nor does ground 17 specify any facts that the trial judge was invited to infer, but did not infer. Instead, the appellant’s submissions on the appeal say that, “A judge in a case of this kind should expect, and require, relevant evidence held by a State party touching and concerning the welfare of the child who has brought a proceeding in the Court, to be adduced by that party.” The submissions assert that the trial judge should not have approached the proceeding “as though the proper conduct of it could be assessed simply by treating it as an adversary proceeding.”
103 This submission is an example of the approach taken by the appellant to this appeal, an approach that suggests that it should have been made easier for the appellant to win the case because he is a child and has disabilities. Just as it was not for the trial judge to make the appellant’s case for him, so also it was not for the respondent to do so. The respondent had the normal right of a party to choose which witnesses to call. If there were witnesses who would have given evidence that would have assisted the appellant, it was always open to the appellant’s counsel to call them. Having been supplied with written statements of the respondent’s witnesses prior to the trial, the appellant’s representatives had every opportunity to be aware of any gaps in the evidence. To that extent, the proceeding was adversarial, just as all proceedings in the Court are. In the absence of any reference to any specific fact that the trial judge should have found, or to any inference that his Honour might have drawn in favour of the appellant, about a fact that could have been the subject of evidence by a specific witness, the principle in Jones v Dunkel cannot have any application.
104 Ground 18 refers to failure of the trial judge to uphold or have proper regard to the appellant’s objections to the hearsay nature of the respondent’s evidence. No specific reference is made to any item of evidence admitted by the trial judge over the objection of counsel for the appellant, which ought not to have been admitted, and which formed part of the evidence on which any finding of fact against the appellant was made. Rather, the complaint seemed to be that the trial judge did not require the respondent to put to the appellant its allegations concerning his misbehaviour, but permitted hearsay evidence to be used against him. In some way this was said to be unfair and unjust, and to prevent the appellant’s “relevant perspectives from being brought forward in evidence.” The submission is not readily comprehensible.
105 Ground 20 complains that the trial judge erred in refusing to allow the tender of the appellant’s workbooks. It is said that the workbooks were: “relevant in a primary, and in an indirect sense, because the level of education was a relevant matter, as was the effect of the respondent’s efforts in ‘teaching’ him.” It is said that the workbooks were probative of their contents and assisted in the forming of conclusions relied on by the appellant. Just what these conclusions were, and how they related to the issues in the case, is a mystery.
106 Ground 21 concerns the refusal of the trial judge to treat as an expert witness Bronwyn Doran. What his Honour said about Ms Doran is at [47] of his reasons for judgment:
Ms Doran was presented as an expert on disability education and expressed a number of opinions which were critical of the manner in which Alex was dealt with at Branxholme and Baimbridge. In giving her evidence she was combative, argumentative and nonresponsive. I do not accept that she is an expert in the field and thereby qualified to give the opinions which she expressed. She had never given evidence before in a disability case. She was asked to give evidence in this case by an advocate for Alex. She had not undertaken any academic research in relation to matters about which she expressed opinions. She had made no contributions to the relevant literature and had no resort to such literature to support her opinions. She had very little practical experience in the field of disability education. Despite these shortcomings I consider that the views which she expressed were genuinely held by her.
The appellant complains that the fact that Ms Doran had not published academic works should have been treated as irrelevant. The trial judge did not decline to regard Ms Doran’s opinions as expert opinions solely on the basis that she had not published academic works. Her failure to contribute to the relevant literature was but one of a list of factors on which his Honour relied. Perhaps even more important were her failure to engage in any research in the field, her failure to rely on relevant literature and her minimal practical experience in the field of disability education. These factors, in conjunction with Ms Doran’s lack of published work, would have been more than sufficient to disqualify her from giving expert opinions to the Court. Even more, however, his Honour obviously regarded her as partisan, a fact which would have disqualified her on its own. The appellant says that counsel for the respondent cross-examined Ms Doran in an insulting and unsettling way, designed to belittle her. On the appeal, the Court was not taken to any transcript of the cross-examination for the purpose of making good such an allegation. At best, if the appellant had established that Ms Doran was cross-examined in such a manner, the effect might have been to minimise or even eliminate the trial judge’s finding that she was combative, argumentative and non-responsive. It is hard to see how the Court could have been persuaded to accept the opinions of Ms Doran in the circumstances.
107 Ground 22 in the amended notice of appeal asserts that the trial judge “should have approached the evidence concerning aides on the footing that, without expert evidence or appropriate scrutiny by the Court, it was not open to treat aides generally or any aide in particular as being effective or appropriate for the Appellant.” The submissions did not expand on this ground, which is obscure in its terms.
108 In ground 23, it is suggested that the trial judge erred in treating the evidence of teachers and school staff employed by the respondent as expert evidence or independent expert evidence. The fact that a witness is employed by a party to a proceeding constitutes no bar to that witness giving evidence of expert opinion, within the field of the witness’s expertise, if such evidence is relevant. The weight of any such evidence must be assessed in the light of all of the circumstances, including the connection between the witness and the party, but the evidence is not itself inadmissible. There is no indication that the trial judge treated the evidence of teachers or other school staff as the evidence of independent experts. His Honour was entitled to have regard to any opinions expressed by any of those witnesses within their relevant fields of expertise. In the submissions relating to this ground, the appellant complained once again of the failure of the respondent to call its regional or head office experts. Any such failure does not appear to have any relevance to the question whether the trial judge was able to accept opinion evidence from teachers or other employees of the respondent.
Costs
109 Although the amended notice of appeal sought an order setting aside the trial judge’s order of 28 April 2011 that the appellant pay the respondent’s costs, there was no ground of appeal relating distinctly to that order. At a late stage in oral submissions, counsel for the appellant sought to argue the issue.
110 As appears from the reasons for judgment of the trial judge given on 28 April 2011, his Honour had given directions for a timetable for the making of any applications for costs and the filing of written submissions. The respondent submitted that costs should follow the event. It filed and served written submissions in support of that application. The appellant made no application and made no submissions relating to the awarding of costs.
111 It is well-established that the power conferred on the Court by s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs is a discretionary power. The most important principle bearing upon the exercise of that discretion is the principle that costs follow the event, ie that normally the losing party will be ordered to pay the successful party’s costs of the proceeding. The only relevant complexity that might have arisen is the result of the fact that the appellant is an infant, who sued by a next friend. In such a case, there might have been a question whether the order should have been made against the appellant, or against the next friend. The principles were canvassed by Sackville J in NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433 (1999) 94 FCR 247 at [27]-[29] and are summarised in Dal Pont GE, Law of Costs (2nd ed, LexisNexis Butterworths, 2009) at [22.67]-[22.68]. While there is no doubt that an order can be made against the next friend (whether so called, or whether called by another name, such as litigation representative as Div 9.6 of the Federal Court Rules 2011 now requires), it does not appear that an order cannot be made against the infant (or other person lacking legal capacity). If such an order is made, it appears that the beneficiary of the costs order can have recourse to the litigation representative, by whatever name called, if the person without capacity is unable to pay the costs. These issues were not argued before the trial judge and were not argued fully on the appeal.
112 Counsel for the appellant informed the Court that the appellant’s legal advisers had determined not to make any submission to the trial judge about costs, because they had already decided to appeal from his Honour’s judgment dismissing the appellant’s application. Having made that forensic decision, they deprived the trial judge of the opportunity to consider whether the circumstances of the case were such that no order for costs should be made. In those circumstances, it is extremely difficult, if not impossible, for the appellant now to suggest that the exercise of his Honour’s discretion miscarried. There is no indication that his Honour made any error of a kind relevant according to the principles enunciated in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
Conclusion
113 For all of these reasons, the appeal must be dismissed. In the absence of any circumstance that would detract from the normal principle that costs follow the event, the appellant should be ordered to pay the respondent’s costs of the appeal. The respondent sought an order against the appellant, not against his next friend. Having regard to the discussion in [111] above, such an order should be made. If the appellant himself is unable to pay (as is likely in the circumstances), the liability for those costs will fall on his next friend, his mother. This proposition causes me to make one further comment about the appeal.
114 This is a case in which the appellant is a very vulnerable person. In this kind of case it is not surprising that there is a high degree of parental anxiety about the inadequacies, perceived or real, of the education services provided to a disabled child. The mechanism whereby a complaint to the Commission is a necessary step preliminary to the bringing of a proceeding in the Court encourages the making of complaints about a wide range of grievances. Before a proceeding is brought after such a complaint has been terminated, the legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the Disability Discrimination Act are not pursued, and that those that are pursued are related clearly and directly to the provisions of the Disability Discrimination Act. It is possible that, in the present case, there might have been acts or omissions of the respondent that did amount to unlawful discrimination against the appellant. The diffuse manner in which the appellant’s case, both at first instance and on appeal, was prepared and presented may well have served to obscure any such instances. That is something that ought not to occur. In the course of the proceeding, the respondent has no doubt incurred considerable expense in preparing for and conducting the trial and the appeal. The money it has expended would have been better spent in the provision of services for disabled students, including the appellant, than in contesting a very wide-ranging and vague series of allegations such as those made in the present case. As a result of the orders for costs made at first instance and in this appeal, if the respondent should see fit to enforce those orders, the effect on the appellant’s family will no doubt be ruinous. The interests of the appellant have certainly not been advanced in the conduct of litigation of this kind in the manner in which it has been conducted.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. |
Associate:
IN THE FEDERAL COURT OF AUSTRALIA | |
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 280 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | ALEX WALKER (BY HIS NEXT FRIEND, PAIGE WALKER) Appellant
|
AND: | STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent
|
JUDGES: | GRAY, FLICK AND REEVES JJ |
DATE: | 22 MARCH 2012 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
FLICK J:
115 The Appellant in the present appeal commenced a proceeding in this court on 3 October 2008. He was born in February 1995 and commenced the proceeding by his “next friend”, his mother (Ms Paige Walker). A second proceeding was commenced in this court on 29 May 2009. In June 2009, the two proceedings were consolidated. The two Applications and an Amended Statement of Claim as filed in May 2009 advanced claims of discrimination contrary to the Disability Discrimination Act 1992 (Cth). Two earlier complaints to the Human Rights and Equal Opportunity Commission had been terminated pursuant to s 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
116 The Appellant claimed that he had been discriminated against by two schools which were conducted by the State of Victoria through its Department of Education and Early Childhood Development. In 2001 he commenced at the first of these schools, namely Branxholme-Wallacedale Community School (“Branxholme”). In January 2007 he began attending the Good Shepherd School, where he remained for the first half of 2007. This is a private school and no complaint has been made against it in these proceedings. In November 2007 he began attending Baimbridge College, Hamilton (“Baimbridge”). Claims of both “direct” and “indirect” discrimination, together with allegations of contraventions of the legislative instrument Disability Standards in Education 2005 and “victimisation”, were advanced for resolution. It was common ground that the Appellant suffered and continues to suffer from a number of disabilities including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome. Evidence before the primary Judge ranged over the steps taken to facilitate the education of the Appellant to his conduct both towards other students and teachers.
117 The hearing before the primary Judge occupied a total of 21 days, in June 2009, April 2010 and May 2010. The primary Judge dismissed the application in March 2011: Walker v State of Victoria [2011] FCA 258, 279 ALR 284.
118 The Amended Notice of Appeal dated 29 April 2011 set forth 23 Grounds of Appeal.
119 To a very large extent the Appellant’s Outline of Submissions and his purported Grounds of Appeal were difficult to comprehend. The Outline of Submissions, for example, commenced with the following general submissions:
6. Approach to Alex – it is not necessary, in Australia, to herald by formal invocation, the parens patriae concept as a necessary judicial tool where the entire curial controversy consists [as it does here] of an action concerning whether the state is sufficiently discharging its obligations of care for one who is not merely a child, but – by reason of his disabilities – a child in need of special care. There is in this judgment neither an actual display of attention to the paramountcy of the interests of a child – let alone those of a disabled, and therefore especially vulnerable, child – nor any implicit, inherent, or nuanced demonstration of pre-occupation with or passing interest in those interests.
7. Teachers and education authorities – From both a general legal perspective, and a human rights perspective a child of immature age is, during school hours, beyond the control and protection of his parents and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.
8. The duty which a schoolmaster owes to his pupil arises from the relationship between them and its temporal ambit will be determined by the circumstances of the relationship on the particular occasion in question. Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school; instead it is those then in charge of them, their teachers, who must provide it.
Although the general propositions may for present purposes be accepted, the manner in which those propositions became relevant to claims for discrimination under the Disability Discrimination Act was not developed. Any claim for relief pursuant to that Act must necessarily found the entitlement to relief in the provisions of the Act itself – not in some more “general legal perspective”.
120 Consideration of the Grounds of Appeal provided little further clarification. Thus, for example, Ground 4 was expressed as follows:
The Learned Trial Judge erred in law in his overall approach to the Appellant by failing to have any or any proper regard to the following fundamental factors:
(a) the fact that the Appellant was a child, and his status as a person under a legal disability;
(b) the fact that the Appellant was a person with disabilities;
(c) the Appellant’s specific disabilities;
(d) the Appellant’s needs arising from his specific disabilities and his need for reasonable adjustments;
(e) the procedures and guidelines in respect of students with disabilities;
(f) the extent to which the Appellant’s behaviour was a consequence, or a part of, his disabilities;
(g) the extent to which the Appellant’s behaviour was a result of the acts of the Respondent in failing to provide proper assistance.
The issues sought to be raised by this Ground pervaded much of the Appellant’s oral submissions. But the error, said to have been committed by the primary Judge in failing to properly consider and apply the provisions of the Disability Discrimination Act and how the construction and application of those provisions was rendered erroneous by those matters set forth in Ground 4, remained elusive. Another ground, Ground 9, again by way of example, provided as follows:
The Learned Trial Judge erred in law in determining that there was any relevant lack of clarity or precision in Appellant’s case; and in any event the Learned Trial Judge should have considered the evidence of discrimination before the Court.
There was, with respect, a comparable “lack of clarity” in the manner in which the case for the Appellant was sought to be advanced on appeal; and there was, in any event, a “lack of clarity” as to the “evidence of discrimination” which it was said the primary Judge “should have considered” – but failed to consider. The Appellant’s written Outline of Submissions dated 26 July 2011 did little to assist in clarifying what was otherwise intended to be embraced by the Grounds of Appeal.
121 Notwithstanding these (and other difficulties) inherent in the manner in which the Grounds of Appeal were to be construed, counsel for the Appellant in oral submissions took the Court through the principal errors said to have been committed by the primary Judge.
122 The findings of fact as made by the primary Judge have been reviewed, as have his Honour’s construction of the provisions of the Disability Discrimination Act, and his application of those provisions to the findings of fact. No appellable error has emerged.
123 The appeal should be dismissed.
Direct Discrimination
124 Section 5 of the Disability Discrimination Act defines “direct” discrimination as follows:
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.
Section 22(2) of the Act relevantly makes it unlawful for an “educational authority” to discriminate against a person on the ground of that person’s disability. That subsection relevantly provides as follows:
It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b) …; or
(c) by subjecting the student to any other detriment.
125 The principal way in which counsel for the Appellant sought to impugn the decision of the primary Judge as to “direct” discrimination was only generally expressed. The generality with which the attack was framed necessarily meant that it lacked precision. Subject to that necessary qualification, it was understood that counsel for the Appellant contended that the primary Judge failed to make findings of fact or to resolve the submissions that underpinned the claims made.
126 The lack of precision was exposed by the inability on the part of the Appellant during oral submissions to identify any failure on the part of the primary Judge to resolve any factual issue which had been raised by the Amended Statement of Claim. Nor was he able to identify any failure on the part of the primary Judge to make a finding of fact which had been clearly identified in either the evidence that had been filed on behalf of the Appellant or the written submissions that had been filed. A “failure” on the part of a primary Judge to make a finding of fact which is not raised by the pleadings, the evidence or the submissions is in reality no “failure” at all. Even going beyond the factual issues raised by the pleadings is a step which a primary Judge should not normally take. To do so may well involve a denial of procedural fairness to one or other (or all) of the parties to any proceeding. A primary Judge does not have to undertake a general roving commission of inquiry to resolve all such factual issues as may emerge – not from the pleadings – but from some unspecified consideration of the disabilities suffered by a claimant.
127 The principal way in which counsel for the Appellant sought to challenge the conclusion of the primary Judge as to direct discrimination is thus rejected.
128 Nor was any appellable error otherwise discernible in the reasons for the primary Judge. His Honour correctly recognised the importance ascribed by the Legislature to prohibiting discrimination on the ground of disability in respect to the provision of education. And, in that area, his Honour further recognised that those who provide education owe duties not only to the Appellant but to other students. Reference was thus made to the following observations of Gleeson CJ in Purvis v State of New South Wales [2003] HCA 62, 217 CLR 92 at 99 to 100:
[7] The Act deals with discrimination in a normative, not a value-free, context. Section 22, with which this case is concerned, proscribes discrimination “against” a person on the ground of the person’s disability. In some contexts, discrimination may be regarded, in terms of values, as neutral, or even positive; but not in this context. The Act is concerned with discrimination of a kind that the legislature regards as unjust, and makes unlawful. The question is whether the Act treats certain action taken in respect of conduct that affects, not only the person said to be the victim of the discrimination, but other persons whom the alleged discriminator is obliged by law to protect, as unjust and unlawful discrimination. The first respondent owed a duty of care towards its pupils and its staff. That is part of the legal background to the operation of the provisions of the Act dealing with education. In its application to educational authorities, the Act enters an area of relationships governed by legal obligations designed to protect the young and vulnerable. In the development of common law principle, it is appropriate, and sometimes necessary, for a court to take account of the need for coherence in the law. … The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.
The Human Rights and Equal Opportunity Commission had there concluded that a male student had been treated less favourably in his education by his suspension and expulsion from a state school. The student had behavioural problems, including behaving violently towards others. The Commission concluded that the violent behaviour resulted from his disability. Emmett J set aside the decision, and an appeal was dismissed by the Full Federal Court. Before the High Court, it was contended that suspension or expulsion because of the behaviour was to treat the student in that way because of the disability. The High Court rejected this contention. Section 5, it was said, required a comparison between a person with a disability and a person without a disability who also behaved violently. In so concluding Gleeson CJ went on to observe:
[12] If the appellant’s argument is correct, the comparison required by the Act is purely formal. If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same. Furthermore, if the appellant’s argument is correct, the Act places a school authority in a position of conflict between its responsibilities towards a child who manifests disturbed behaviour and its responsibilities towards the other children who are in its care, and who may become victims of that behaviour. The language of the Act does not require such a result. In characterising the actions of the first respondent, for the purpose of applying a law against unjust discrimination by making the comparison required by s 5 of the Act, and in considering all the circumstances in which the school principal acted, to compare the treatment of the pupil with the treatment of some other pupil who, without any disability, behaved violently permits due account to be taken of the first respondent’s legal responsibilities towards the general body of pupils.
Gummow, Hayne and Heydon JJ similarly concluded as follows:
[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
McHugh and Kirby JJ dissented.
129 When addressing the claim of direct discrimination, and in applying the decision of Purvis, the primary Judge considered (for example) complaints made in respect to the Appellant’s exclusion from the playground and concluded as follows:
[118] Alex contended that, in excluding him from the playground and from school during recess and lunch breaks between 2005 and 2006, the Department directly discriminated against him, contrary to the provisions of 22(2) of the DDA. This contention must fail.
[119] It must fail because it cannot be said that the Department (or Branxholme) would have treated another student without Alex’s disabilities any differently from the way in which it treated Alex. This is because the relevant comparator is a student displaying the same behaviour as Alex did but without the disability, not a student without the disability and without the behaviour. Furthermore, Alex has not established that, in imposing the relevant regime, the Department subjected him to any detriment.
The primary Judge further addressed the application of the school’s “management plan” as follows:
[124] The next question is whether the imposition of the regime was a less favourable step than would have been taken in the case of another student who had acted in the same disruptive fashion but who did not labour under the same disabilities as did Alex.
[125] Both Mr Castersen and Mr Crossley said that they had dealt with Alex in the same way as they would have dealt with any other student who had acted in the same manner. They did so consistently with their professional expertise in order to promote Alex’s welfare and protect the welfare of other students. They applied the student management plan that was applicable to all students. I accept this evidence.
[126] The Department did not call detailed evidence about how other students who had contravened the school’s code of conduct had been dealt with under the management plan. This was probably because the case put by Alex was not one of asymmetrical treatment but rather that, because of his disabilities, the management plan should not have been applied to him. The general evidence of Messrs Castersen and Crossley concerning the consistency and fairness with which they applied the management plan to students was not seriously challenged.
[127] I, therefore, conclude that Alex was not dealt with, under the management plan, less favourably than another student who did not have Alex’s disabilities would have been treated had he or she engaged in the same or substantially the same misconduct.
Mr Castersen was the principal at one of the schools that the Appellant attended; Mr Crossley succeeded him as principal.
130 The following three of the Grounds of Appeal in particular were directed to these conclusions of the primary Judge, namely:
6. The Learned Trial judge erred in his approach to the provision of a proper behavior plan: he should have held that discipline [including punishments and suspensions] was carried out by the Respondent upon the Appellant on an ad hoc and arbitrary basis without consideration of the Appellant’s disabilities; and the learned trial judge should have held that such discipline constituted discrimination.
7. In dealing [at paragraph 125] with the evidence of Mr Castersen and Mr Crossley that they applied the student management plan to all students, and that “they had dealt with Alex in the same way as they would have dealt with any other student who had acted in the same manner”, the Learned Trial Judge fell into error by failing to consider the Appellant’s individual requirements, and his need for reasonable adjustments [including a Behaviour Management Plan specific to his multiple disabilities].
8. The Learned Trial Judge was in error in deciding that the decision in Purvis v New South Wales (2003) 217 CLR 92 was applicable.
But why, for example, the decision in Purvis was said to be not “applicable” was not satisfactorily explained. Nor was it satisfactorily explained why the primary Judge erred in respect to his conclusions as to the “management plan”.
131 Although particular attention has been given to these three Grounds of Appeal, the more general thrust of the Appellant’s submissions has also been considered. The more general thrust was an alleged failure on the part of the primary Judge to address and resolve submissions which had been advanced. But the difficulty confronting the primary Judge was considerable. The now Appellant had filed a commendably brief document titled “Contentions of Fact and Law”. That document helpfully directed attention to submissions in respect to:
direct discrimination;
indirect discrimination;
disability standards;
victimisation;
denial of access and subjection to detriment; and
remedies.
Each of these issues was addressed by the primary Judge. But difficulties emerged when consideration was given to the Amended Statement of Claim, a document of some 37 pages in length, and to a document filed by the now Appellant as an Outline of Submissions. That Outline, including appendices, was over 170 pages in length. The appendices included extended extracts from the evidence. Except perhaps in a proceeding involving exceptional legal or factual complexity, no course is open to a party to any litigation to file such extensive submissions and thereafter contend that a primary Judge has erred by failing to deal with each submission advanced. But that was understood to be one of the ways in which counsel on behalf of the Appellant sought to argue his case.
132 In order to test for the potential for appellable error in the reasons of the primary Judge, rather than to be perhaps unnecessarily critical of the manner in which the Grounds of Appeal had been drafted, repeated reference was thus made during the course of oral submissions to paragraph [127] of his Honour’s reasons. Every opportunity was extended to counsel for the Appellant to identify why the conclusion of the primary Judge there expressed was erroneous or why the conclusion should not have been reached by reference to the evidence. But no appellable error emerged. The conclusion reached by the primary Judge, it is concluded, was a conclusion of fact open to him on the evidence. No error is discernible in his Honour’s application of s 5 to those facts.
133 The challenge to his Honour’s conclusions as to the absence of any “direct” discrimination is thus rejected.
Indirect Discrimination
134 Section 6 of the Disability Discrimination Act defines indirect discrimination as follows:
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.
135 Section 6, it will be noted, requires (inter alia) the identification of a “requirement or condition”. As noted by the primary Judge, the Appellant failed to identify “with precision” the “requirement or condition”: Walker at [181]. His Honour referred to the observations of Kirby J in State of New South Wales v Amery [2006] HCA 14 at [128], 230 CLR 174 at 212 that “where the Act is addressed to a ‘requirement or condition’ … it is necessary to identify with precision what the relevant ‘requirement’ or ‘condition’ is”.
136 There was, again, an equal lack of precision in this Court in the identification of the “requirement or condition” sought to be relied upon.
137 The primary Judge, however, addressed each of the nine matters which could possibly constitute a “requirement or condition”, namely:
a requirement that the Appellant access his education without “the formulation and provision of an Individual Education Plan based upon proper information [including opinions of experts] concerning the [Appellant] so as to address his disabilities” and “the proper implementation” of such a Plan;
a requirement that the Appellant access his education “without … the formulation, provision and proper implementation of a Behaviour Management Plan”;
a requirement that the Appellant access his education without “one-to-one assistance in his academic subjects from a teacher or teacher’s aide who [was] trained in the management of his disabilities and who [could] implement the individual education plan and behaviour management plan”;
a requirement that he access his education without the assistance of programme support group meetings;
a requirement that he not attend in the school yard during recess and lunchtimes at Branxholme and not join other students on school excursions;
a condition that he only attend at Baimbridge on two mornings per week;
a condition that the Department refused and failed to provide proper funding for him to receive a full-time education, “especially at Baimbridge”;
a condition that the Department invented and applied a funding regime which discriminated against him because it failed to take his particular circumstances into account; and
a condition that the Department “invented rules” for the purposes of preventing the Appellant travelling on the school bus.
His Honour, it is concluded, correctly rejected each of these matters – with the possible exception of the third – as properly identifying any “requirement or condition” for the purposes of s 6.
138 Only the third of these matters, it was concluded by the primary Judge, could possibly constitute a “requirement or condition”. In respect to this matter, his Honour concluded:
[220] The third requirement which Alex submits was imposed on him was that he access his education without “one-to-one assistance in his academic subjects from a teacher or teacher’s aide who [was] trained in the management of his disabilities and who [could] implement the individual education plan and behaviour management plan.”
[221] As drafted, this “requirement” alleges a failure by the Department to provide multiple services to Alex. The failures include (i) not giving him one-to-one assistance from a teacher or teacher’s aide; (ii) who was trained in the management of his disabilities; (iii) who could implement the individual education plan; and (iv) who could implement the behaviour management plan. Although I have reservations about the manner in which this “requirement” is framed, I am prepared to assume, in Alex’s favour, that it identifies requirements to which s 6 of the DDA applies.
[222] It remains to be determined whether such a requirement or requirements was or were, in fact, imposed by the Department.
Concurrence is expressed with the “reservations” expressed by the primary Judge. It was possible for this third requirement to arguably fall within s 6(1)(a) and, as such, it was appropriate for the primary Judge to proceed on the assumption that s 6(1)(a) had been satisfied. As recognised by Sackville and Stone JJ, “the expression ‘requirement or condition’ in s 6 … should be construed broadly to include any form of qualification or prerequisite”: Catholic Education Office v Clarke [2004] FCAFC 197 at [103], 138 FCR 121 at 143.
139 No reservation, however, is expressed with respect to the further conclusions of the primary Judge for rejecting the claim that there had been “indirect” discrimination by reference to this “requirement or condition”. In rejecting that claim, his Honour concluded (in part) as follows:
[260] Under cover of a denial that such a requirement was imposed on Alex, the Department contended that any such imposition was reasonable in the circumstances. It pointed to the small class sizes at Branxholme which meant that Alex’s teachers, assisted in his later years by aides, were able to meet all of his educational needs without either the teacher or an aide giving Alex constant and undivided attention.
[261] No evidence was called as to the cost of providing an aide to work exclusively with Alex throughout his primary education. Nor was there any detailed evidence about the criteria which were applied in determining the number of aides to be provided to a school or whether Branxholme received its full entitlements under the applicable criteria during Alex’s time at the school. My attention was not drawn to any request by Mr and Mrs Walker for exclusive individual assistance to be provided to Alex at all times when he was at Branxholme. Nor was my attention drawn to any recommendation by an educational psychologist or other professional that Alex required and should be provided with such assistance.
[262] Alex did, in fact, receive a progressively higher level of one-to-one attention in the classroom as he progressed through the grades at Branxholme. He also had the benefit of small group teaching that took account of his personal needs.
[263] To the extent that there was a relevant requirement or condition imposed on Alex, it was not that he should receive his education at Branxholme without any one-to-one assistance from a teacher or an aide. The complaint must be understood as one that he did not receive the exclusive attention of a teacher or an aide at all times when he was at the school. I am not satisfied, on the evidence, that in all of the circumstances, it was necessary that he receive such a level of assistance, much less that it was unreasonable not to provide it.
140 No appellable error is exposed by the primary Judge’s rejection of the complaint based upon “indirect” discrimination.
Disability Standards
141 Section 31 of the Disability Discrimination Act provides that the Minister may, by legislative instrument, formulate “standards, to be known as disability standards”. Pursuant to that power the Disability Standards for Education 2005 were made. Section 32 of the Disability Discrimination Act provides that it “is unlawful for a person to contravene a disability standard”.
142 The primary Judge rejected the Appellant’s claims that there had been a contravention of the Disability Standards: Walker at [270] to [290].
143 The Amended Statement of Claim alleged a series of contraventions of specific provisions of the Disability Standards. These allegations were correctly described by the primary Judge as “confusing”. At the heart of the allegations, however, was an allegation that there had been a failure to (for example) “consult the prospective student … about whether the disability affects the prospective student’s ability to seek admission to … the institution” or a failure to “consult the student … about whether the disability affects the student’s ability to participate in learning experiences”.
144 The requirement to “consult” is to be found in clauses 5.2(2)(a) and 6.2(2)(a) of the Disability Standards. Part 5 of the Disability Standards is directed to “Standards for participation” and provides in cl. 5.2 in part as follows:
5.2 Participation standards
(1) The education provider must take reasonable steps to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability, and without experiencing discrimination.
(2) The provider must:
(a) consult the student, or an associate of the student, about whether the disability affects the student’s ability to participate in the courses or programs for which the student is enrolled and use the facilities or services provided by the provider; and …
Part 6 is directed to “Standards for curriculum development, accreditation and delivery”. Clause 6.2 provides in part as follows:
6.2 Standards for curriculum development and accreditation and delivery
(1) The education provider must take reasonable steps to ensure that the course or program is designed in such a way that the student is, or any student with a disability is, able to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, and without experiencing discrimination.
(2) If a student is enrolled in the course or program, the provider must:
(a) consult the student, or an associate of the student, about whether the disability affects the student’s ability to participate in learning experiences of the course or program, or any relevant supplementary course or program; and …
145 The learned primary Judge addressed these two provisions together. In doing so, he observed:
[283] Sections 5.2(2) and 6.2(2), which Alex alleges were contravened by the Department, provide for a process of consultation, consideration and adjustment in order that the requirements of ss 5.2(1) and 6.2(1) are met. These processes must be repeated as necessary as a student’s needs change: see ss 5.2(3) and 6.2(3).
[284] Some features, which are common to both ss 5.2(2) and 6.2(2) should be noted. The first is that both provisions require a school to consult a student or his or her parents about prescribed matters. They do not, however, require that such consultation take any particular form or occur at any particular time. Those involved may meet formally or informally. Discussions can be instigated by either the school or the parents. Consultation may occur in face-to-face meetings, in the course of telephone conversations or in exchanges of correspondence. Once consultation has occurred it is for the school to determine whether any adjustment is necessary in order to ensure that the student is able, in a meaningful way, to participate in the programmes offered by the school. The school is not bound, in making these decisions, by the opinions or wishes of professional advisers or parents. The school is also required to determine whether any reasonable adjustment is possible in order to further the prescribed aims. There may, therefore, be cases in which an adjustment is necessary but no reasonable adjustment is able to be identified which will ensure that the objectives contained in the relevant Disability Standards are achieved.
No error is discernible in these observations.
146 The fundamental difficulty confronting the Appellant on his appeal were the findings of fact made by the primary Judge as to the extent of the “consultations” in fact undertaken. These “consultations”, according to his Honour, were “both formal and informal”. His Honour outlined the many recommendations being made to address the Appellant’s disabilities: Walker at [285]. There was no failure to “consult”.
147 A further allegation advanced in the Amended Statement of Claim was an alleged contravention of the Disability Standards by reason of the failure to make “reasonable adjustments” and a failure to “support … the student adequately”. These allegations were also rejected by the primary Judge.
148 The Amended Notice of Appeal sought to challenge these conclusions primarily by the following two Grounds of Appeal, namely:
14. The Learned Trial Judge erred in law in failing to have proper regard to, or alternatively materially misconstruing, the purport and effect of the provisions of the Disability Standards for Education concerning “consultation”.
15. The Learned Trial Judge erred in his conclusions regarding the reasonableness of the steps taken by the Respondent, by focusing on the local school as distinct from the Respondent as a whole.
The Appellant’s written Outline of Submissions adds to these Grounds by contending that the primary Judge “permitted considerations pertinent to the acts of local officials [teachers, and principals] to intrude, irrelevantly, into a consideration of the acts of the respondent as a department of the state of Victoria”.
149 No further assistance in respect to these arguments was gleaned from the Appellant’s oral submissions.
150 The findings of fact as made by the primary Judge as to the steps taken and the consultation undertaken, however, were all findings manifestly open to him on the evidence. And those findings are considered to be correct. No error is discernible in the construction or application of the provisions of the Disability Standards addressed by his Honour. It is unnecessary to separately consider the Respondent’s submission that Ground 15 now seeks to advance the claims in a manner different to the conduct of the proceeding at first instance. However the case was previously advanced, the primary Judge’s conclusion as to the reasonableness of the steps taken was a conclusion of fact in respect to which no appellable error is discernible.
151 The challenge to the conclusions reached in respect to alleged contraventions of the Disability Standards is rejected.
Victimisation
152 The “offence” of victimisation is defined in s 42 of the Disability Discrimination Act as follows:
Victimisation
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986 ; or
(b) …; or
(c) …; or
(d) …; or
(e) …; or
(f) …; or
(g) …;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
Provisions making “victimisation” an “offence” in statutory regimes proscribing discrimination are common in both State and Commonwealth legislation: e.g., Anti-Discrimination Act 1977 (NSW) s 50; Sex Discrimination Act 1984 (Cth) s 94. Such provisions play an important role in ensuring that proscribed discrimination does not occur.
153 The Amended Statement of Claim advanced the claim as to victimisation as follows:
24. The Respondent has breached s 42 of the Act.
Particulars
(a) On 20 May 2008, the Principal of Branxholme, Mr Steve Crossley, refused to allow the Applicant to be on the school grounds due to the lodging of the complaint of discrimination with the Australian Human Rights Commission.
That was the only “Particular” provided.
154 There was controversy as to the events of 20 May 2008. Mr Crossley’s evidence was that he “did not require Alex to leave the school grounds” but had simply requested Mr and Mrs Walker to supervise the Appellant’s behaviour “in an adequate manner”. His witness statement thus provided in part as follows:
247. My decision to request Mr and Ms Walker to adequately supervise Alex was entirely because I considered it appropriate that Alex be adequately supervised by his parents whilst around young children, especially if he was going to engage in rough play with young kids on the school grounds. Further, I also had in mind my own previous experiences with Alex at Branxholme which heightened my concern about Alex being unsupervised on school grounds. Alex’s behaviour is unpredictable, and so I also wanted to ensure that Alex was adequately supervised so that any young children were adequately safeguarded in the event that Alex engaged in any inappropriate behaviour towards them. Issues between Alex and younger students had been a feature of Alex’s inappropriate behaviours in the past. This request had nothing to do with the fact that Ms Walker was suing the school for discrimination.
248. I did not require Alex to leave the school grounds. My only requirement was that Mr and Ms Walker adequately supervise him whilst on the school grounds. I did not suggest that Alex could not do Auskick. I never thought that Alex was going to be a participant in Auskick. My concern was that because of the Auskick program, there were many younger children in attendance, some being of a very young age.
This account, if accepted, would preclude any finding as to victimisation. Importantly, Mr Crossley was cross-examined. His account of the events of 20 May 2008 was not challenged. He was not cross-examined in any manner which suggested that any refusal “to allow the Applicant to be on the school grounds [was] due to the lodging of the complaint of discrimination”. Mr and Mrs Walker gave evidence and they were cross-examined.
155 It was understood that counsel for the Appellant sought to explain the absence of any relevant challenge to Mr Crossley’s evidence by reference to a limitation that had been placed by the primary Judge upon his cross-examination. Ground 13 of the Grounds of Appeal thus stated:
The Learned Trial Judge erred in law in allowing case management considerations to intrude into his determination of the merits of the Appellant’s case.
This was a reference to the following observations of the primary Judge:
[20] … Despite the limitations, time continued to be wasted in cross-examination. Three of the many examples which could be cited may be mentioned. During his first day in the witness box Mr Crossley (the principal of Branxholme during Alex’s final year at the school) was cross-examined for about two hours on largely irrelevant matters which were said to be raised by eight paragraphs of his witness statement. Although given the opportunity to explain the relevance of the cross-examination the following morning counsel was unable to do so. The first question which greeted Mr Crossley on the third day of his cross-examination was: “Mr Crossley, I just wanted to ask you about the structure by which the responses made by employees of the respondent at the Branxholme School were structured.” He was then asked a series of questions over the next 40 minutes, most of which had no bearing on any issue in the trial. They included whether he had examined files containing assessments of teachers at Branxholme; whether his evidence had slipped “into homily and euphemism”; whether “education itself is regarded in this society as a good thing”; his familiarity with the “my schools website”; and whether test results displayed on the website were a fair reflection of the performance of the teachers and principal at Branxholme. On his last day in the witness box Mr Vecchiet (the principal of Baimbridge) was taxed for some 40 minutes with a semantic examination of a short letter which he had written. The questioning was, at best, of marginal relevance.
But the manner in which the Appellant sought to contend that “case management considerations” had improperly “intrude[d]” was again not satisfactorily explained.
156 As recognised by Pembroke J, the “right to cross-examine a witness, at least in a civil case, is not unfettered”: Thomas v SMP (International) Pty Ltd (No 3) [2010] NSWSC 900 at [12]. This was the very decision referred to by the primary Judge. Pembroke J there went on to cite with approval the following observations of Mahoney JA in Government Insurance Office (NSW) v Glasscock (1991) 13 MVR 521 at 529 to 530:
It is also appropriate for a judge to intervene, to an appropriate extent, where the conduct of the case for one party is less adept than the needs of justice require. If a judge feels, after appropriate time and consideration, that the position of a party is unacceptably prejudiced in this way, he may, I think, suggest, or even ask, the necessary questions.
… [I]t will be appropriate for a judge to ensure that unnecessary time is not wasted or cost incurred. The principles of judicial administration require that the procedures of the justice system be effective, efficient, and timely. They are to be effective in the sense of bringing to an end the disputes with which they deal. They are to be efficient in the sense of using for the purpose no more resources than are appropriate. And it is necessary that what is to be done be done in due time.
It was understood that it was the application of these principles to the manner in which the present proceeding was conducted that attracted the criticism of the Appellant.
157 But any such criticism is fundamentally misplaced. It thus emerged during the course of submissions that the cross-examination of Mr Crossley commenced during the afternoon of one day and it was at the conclusion of that day that the primary Judge imposed the limitation. Thereafter the cross-examination continued for all of the following day and into the day thereafter.
158 In the circumstances of the present case, it could not be said that any significant limitation at all was placed upon counsel for the Appellant. And, even if it be concluded that a “limitation” was imposed, it is a submission without substance to contend that the Appellant was denied an opportunity to confront Mr Crossley as to his account of the events that occurred on 20 May 2008.
159 The conclusions of the primary Judge as to the absence of any victimisation are without error. And there is no separate error in the manner in which his Honour conducted the hearing, including – in particular – the limitations he placed upon the cross-examination of Mr Crossley.
Costs
160 There is no reason why the Appellant should not be ordered to pay the costs occasioned by the appeal. The appeal is without substance. There is no reason why the normal rule as to costs should not apply, namely that costs follow the event.
161 There are limited circumstances in which the public interest may be taken into account when exercising the discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth): Ruddock v Vadarlis (No 2) [2001] FCA 1865 at [29], 115 FCR 229 at 242 per Black CJ and French J. Espousing the public interest alone, however, is not a grant of general immunity from costs: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84 at [13] per Emmett, McKerracher and Foster JJ.
162 Although counsel for the Appellant sought to characterise the appeal as one founded upon “core principles” or upon the “bedrock value of human rights” (cf. PJB v Melbourne Health [2011] VSC 327 at [32] per Bell J), the case was rejected by the primary Judge upon simple factual conclusions found adversely to the interests of the Appellant. He lost on the facts. He simply could not establish the factual foundation upon which a more fundamental human rights case may otherwise have depended.
163 The present appeal, accordingly, raises no question of public importance or public interest. The interests being advocated were those personal to the Appellant. The genuineness with which the next friend advocated those interests cannot be questioned; nor can the seriousness of the consequences attendant upon the Appellant’s disabilities. The interests advanced and resolved, however, remain personal to the Appellant.
Conclusions
164 Notwithstanding the generality of the terms in which the Grounds of Appeal have been expressed, each has been considered and rejected. The Grounds of Appeal upon which particular reliance was placed during oral submissions have received particular attention. But all Grounds have been considered. The reasons for decision of the primary Judge have also been separately considered with a view to determining whether any ground of appeal, if re-drafted, could have exposed some appellable error. None has been discerned.
165 A recurring source of grievance sought to be advanced on behalf of the Appellant was a contention that the primary Judge had failed to consider (for example) the written submissions that had been filed or had failed to provide adequate reasons for conclusions reached. These contentions are without substance. The reasons for decision of the primary Judge reflect, with great respect, a detailed and disciplined resolution of claims which had been poorly formulated. The reasons for decision expose a meticulous and balanced analysis of the evidence and the application of the provisions of the Disability Discrimination Act to the findings of fact as made. One Ground of Appeal which contended that the primary Judge “was or appears to have been prejudiced against the Appellant by reference to the acts or omissions of the Appellants lawyers” is equally without substance. Rather than any “prejudice” being exposed by the reasons for decision, those reasons expose a primary Judge attempting to formulate a party’s potential claims for relief in as favourable a manner as possible and substantially without the benefit that is to be expected of a party’s legal representatives.
166 The appeal should be dismissed with costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
Associate:
Dated: 22 March 2012
IN THE FEDERAL COURT OF AUSTRALIA | |
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 280 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | ALEX WALKER (BY HIS NEXT FRIEND, PAIGE WALKER) Appellant
|
AND: | STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent
|
JUDGES: | GRAY, FLICK AND REEVES JJ |
DATE: | 22 MARCH 2012 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
REEVES J:
167 I have had the opportunity to read the draft reasons for judgment of both Gray J and Flick J. I agree with the substance of those reasons and the conclusion they have both reached. Apart from the following observations about the proposed orders, I have nothing further to add.
168 On the question of costs, specifically whether the order for costs should be made against the appellant, or his next friend, I agree with the order proposed by Gray J. The usual rule that a next friend is required to personally bear any adverse costs order, exists primarily to secure the opposite party, in respect of his or her costs: see Ex parte Davis (1901) 1 SR(NSW) 187 at 189. If the successful respondent in this case does not wish to take advantage of that rule, but instead wishes to seek an order for costs against the infant plaintiff, then I do not consider this Court should interfere with that deliberate choice.
169 Otherwise, I agree with the orders proposed by Gray J.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
Dated: 22 March 2012
