FEDERAL COURT OF AUSTRALIA
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128
ORDERS
Appellant | ||
AND: | THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMBERG J:
1 To be registered to practice as a dermatologist in Australia, a medical practitioner must be admitted as a Fellow of the respondent College (“College”). Clause 11.1.1(a) of the Constitution of the College deals with election as a Fellow of the College and relevantly states:
11.1.1 Fellows
(a) To be eligible for election as a Fellow a candidate must:
(1) be a medical practitioner who holds a medical qualification approved by the Board for the purposes of this clause; and
(2) either:
(A) undertake and complete a training program approved by the Board and pass an examination by the College; or
(B) in lieu of the training program and examination, have such other qualifications and experience as the Board considers adequate.
2 The appellant (“Dr Sklavos”) is a medical practitioner who wanted to practice as a dermatologist. He participated in the College’s training program. In order to be admitted as a Fellow, the College required that he pass the College’s final written and clinical examinations.
3 The primary judge accepted that since January 2012 or possibly late in 2011, Dr Sklavos has suffered from a psychiatric disorder being a specific phobia provoked by phenomena related to the assessment by the College of his capacity to be a dermatologist. Initially, the specific phobia was a fear of sitting the College’s final examinations but by the time of trial the specific phobia had extended to a fear of any assessment by the College. It was not in contest at trial, or on the appeal, that the phobia was a “disability” within the meaning of that term as defined by s 4 of the Disability Discrimination Act 1992 (Cth) (“DDA”).
4 By letter of 22 December 2011, Dr Sklavos requested the College to admit him as a Fellow without requiring him to pass the College’s final written and clinical examinations. In that letter, Dr Sklavos contended that under Clause 11.1.1 of the Constitution, the College could admit him applying paragraph (B) of sub-clause 11.1.1(a)(2) (“Rule B”). In support of the request, on 7 February 2012 Dr Sklavos provided the College with a report from a consultant psychiatrist stating that he had been diagnosed as suffering from a specific phobia which would have a disabling effect on his capacity and performance, were he to attempt again to participate in the written and oral components of the College’s examination.
5 On 10 February 2012, the College considered Dr Sklavos’ request and declined it. On 22 February 2012, the College informed Dr Sklavos that his application had been declined and that in order to be eligible for election as a Fellow, he was required to undertake and complete a training program approved by the Board and pass an examination by the College pursuant to paragraph (A) of sub-clause 11.1.1 (a)(2) (“Rule A”). The letter also informed Dr Sklavos that the College would consider any reasonable request made by him for special conditions in the 2012 examinations under the College’s special consideration policy. Correspondence then ensued between Dr Sklavos and the College in relation to the nature of any adjustments that might be made. Ultimately, however, and with the benefit of advice from his psychiatrist, Dr Sklavos decided that he was unable to sit the 2012 examinations. He then lodged a complaint with the Australian Human Rights Commission alleging contraventions of the DDA. That application was terminated in April 2013 and, pursuant to the jurisdiction conferred on this Court by s 46PO of the Australian Human Rights Commission Act 1986 (Cth), proceedings were commenced in this Court in June 2013.
6 A number of causes of action were pursued by Dr Sklavos before the primary judge and rejected. However, it is only the claims made under the DDA which are the subject of this appeal.
7 Dr Sklavos put his case on appeal in three broad propositions. First, he contended that the College’s failure to make reasonable adjustments to the method of addressing his eligibility for Fellowship meant that he was subjected to direct disability discrimination within the meaning of s 5(2) of the DDA. The asserted errors of the primary judge in rejecting that proposition are taken up by ground 1 of the appeal. Secondly, Dr Sklavos contended that the College’s application of the requirement that, as a condition of eligibility for election as a Fellow, he pass the College’s examination meant that he was subjected to indirect disability discrimination within the meaning of either s 6(1) or s 6(2) of the DDA. The asserted errors made by the primary judge in rejecting that proposition are the subject of grounds 2 and 3 of the appeal. Third, Dr Sklavos contended that the College failed to comply with the obligations imposed on it by clauses 5.2 and 6.2 of the Disability Standards for Education 2005 (Cth) and thereby contravened s 32 of the DDA. The rejection of that proposition and the asserted errors of the primary judge are reflected in ground 4 of the appeal. Additionally, by ground 5 of the appeal, Dr Sklavos contended that the primary judge erroneously failed to find that he had suffered compensable loss as a result of the College’s contraventions of the DDA.
direct disability discrimination
8 I will commence with Dr Sklavos’s first proposition that he was subjected to direct disability discrimination. Significant issues of construction are raised including the meaning of and division between direct and indirect disability discrimination.
9 The discussion should begin with a brief outline of the structure of the DDA.
10 The DDA makes it unlawful for one person to discriminate against another person on the ground of that person’s disability. Discrimination is not universally prohibited but is unlawful in each of the fields of activity described by Part 2 of the DDA. Thus, to take by way of example a field of activity relied upon by Dr Sklavos, s 19 of the DDA provides:
It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's disability:
(a) by refusing or failing to confer, renew or extend the authorisation or qualification; or
(b) in the terms or conditions on which it is prepared to confer the authorisation or qualification or to review or extend the authorisation or qualification; or
(c) by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held.
11 The meaning of “discriminate” as used in s 19 and in each of the other provisions (dealing with different fields) found in Part 2 of the DDA is provided by ss 5 or 6. Section 5 sets out when a person discriminates against another by way of what the heading identifies as direct disability discrimination. Section 5 is in the following terms:
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
12 Section 6 also provides meaning for the word “discriminate” when used in Part 2 of the DDA in addressing indirect disability discrimination. Section 6 is in the following terms:
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
13 There is persuasive support for the proposition that the definitions provided by s 5 for direct discrimination and that provided by s 6 for indirect discrimination are mutually exclusive. In other words, the same conduct cannot amount to both direct and indirect discrimination. The line of relevant authority commences with Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 where provisions relevantly comparable to ss 5 and 6 of the DDA (ss 24(1) and 24(3) of the Anti-Discrimination Act 1977 (NSW)) were held to be mutually exclusive: Brennan J at 171; Dawson J at 184. The reasoning in Banovic was applied by Dawson and Toohey JJ (at 392-393) and McHugh J (at 400) in Waters v Public Transport Corporation (1991) 173 CLR 349. That case addressed complaints of disability discrimination brought pursuant to ss 17(1) and (5) of the Equal Opportunity Act 1984 (Vic) which were relevantly comparable provisions to those of ss 5 and 6 of the DDA Act. Relying on those authorities, Katzmann J in Munday v Commonwealth (No 2) (2014) 226 FCR 199 at [157] held, correctly in my view, that under the DDA the same conduct cannot amount to both direct and indirect discrimination. In Walker v Victoria [2011] FCA 258 at [28] and in Abela v Victoria [2013] FCA 832 at [84] Tracey J expressed the same view in holding that the DDA definitions of direct and indirect discrimination are mutually exclusive. Tracey J and Katzmann J each relied on Australian Medical Council v Wilson (1996) 68 FCR 46 (Black CJ, Heerey and Sackville JJ).
14 If it were otherwise, anomalous and obviously unintended outcomes would result. A requirement or condition which would not constitute discrimination under s 6(1) or (2) because the requirement or condition was reasonable (see s 6(3)) could constitute discrimination under s 5. For similar reasons, Dawson and Toohey JJ in Waters (applying observations made by Dawson J in Banovic) concluded that s 17(1) and s 17(5) of the Equal Opportunity Act 1984 (Vic) dealt separately with direct and indirect discrimination (see at 393).
15 Furthermore, the structure adopted by the DDA must be respected in construing its operation. Whilst the same conduct may be susceptible to multiple characterisations, it could not have been intended that the same conduct should attract more than one of the definitions provided by the DDA for the term “discriminate”. As Gummow, Hayne and Heydon JJ said in Purvis v New South Wales (Department of Education and Training) (2013) 217 CLR 92 at [185]:
…The Act makes separate and distinct provision for indirect disability discrimination (dealt with in s 6 of the Act) from the provision made for disability discrimination (s 5) …
16 Whilst it may be open to an applicant to plead that the same conduct constituted direct discrimination and, in the alternative, indirect discrimination, the proper characterisation of the conduct falls to be determined by the court on the basis that the same conduct cannot constitute discrimination as defined under s 5 and discrimination as defined under s 6.
17 A broadly expressed point of distinction in discrimination law between direct and indirect discrimination was stated by Dawson and Toohey JJ in Waters at 392:
A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers (44). Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
18 A similar dichotomy was drawn by Mason CJ and Gaudron J at 357–358. In Banovic, Deane and Gaudron JJ at 175 spoke of indirect discrimination as referable to “acts or decisions made by reference to criteria or standards which are apparently non-discriminatory (sometimes referred to as ‘facially neutral’) but which have a discriminatory effect”. See further Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 97 (Sackville J); Walker at [235] (Tracey J); Abela at [83] (Tracey J) and New South Wales v Huntley [2017] FCA 581 at [96] (Perry J).
19 However, there are difficulties with facial neutrality providing a basis for clearly delineating between direct and indirect discrimination particularly now that the DDA imposes (by s 5(2)) obligations to make adjustments in order that less favourable treatment be avoided. Those difficulties were recognised by McHugh and Kirby JJ in Purvis at [105] where, in addressing the predecessor to the current s 5 of the DDA, their Honours said this:
As indicated by the Explanatory Memorandum, s 5(2) recognises rather than imposes the obligation of accommodation. It makes it clear that circumstances will not be materially different for the purpose of s 5(1) because, for example, a student in a wheelchair may require a ramp to gain access to a classroom while other students do not need the ramp. This example also illustrates the unique difficulty that arises in discerning the division between ss 5 and 6 of the Act because s 5(2) brings the requirement for a ramp, normally associated with indirect discrimination, into the realm of direct discrimination.
20 Nevertheless, the stem from which the concept of facial neutrality found expression remains useful. It is important to notice the distinction drawn by Dawson and Toohey JJ in Waters between treatment (“disparate treatment”) and impact (“adverse impact”). Disparate treatment is a hallmark of direct discrimination whereas adverse impact or effect is a hallmark of indirect discrimination.
21 From that contextual observation, it is best to turn to the DDA itself: its purpose, structure and language. As the objects (s 3) of the DDA emphasise, what is sought to be achieved is the elimination (as far as possible) of discrimination against persons “on the ground of disability”. The DDA is concerned with addressing disadvantage, or less favourable treatment, brought about or caused by a person’s disability. That fundamental concern applies irrespective of whether the discrimination is direct or indirect.
22 Each of s 5(1) and (2) and s 6(1) and (2) raise a number of elements which must be satisfied to establish discrimination within the meaning of each of those subsections. The factors specified are varied but, in each case, a causation question is raised by the common phrase “because of the disability”. A point of distinction, and in my view the fundamental distinguishing feature between s 5 and s 6 as is to be found in the different causation question which those sections raise. I will first state the difference and then identify it in the terms of ss 5 and 6 construed by reference to their context and with regard to the Act as a whole: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
23 Under s 5, for the disadvantage (less favourable treatment) experienced by the aggrieved person to constitute discrimination, the disability must be a basis or reason for the conduct of the discriminator. Under s 6, for the disadvantage to constitute discrimination, the disability need only be a reason or basis for the disadvantage. In other words, for direct disability discrimination it is necessary that the disability explains (or partially explains: s 10) the treatment or conduct of the discriminator which resulted in the less favourable treatment. In contrast, for indirect disability discrimination it is sufficient that the disability explains the disadvantage, that is, that the disability explains the effect or impact of the discriminator’s conduct. In each case there is a causal link with the victim’s disability. In the case of s 5, the causal link is to a reason for the treatment of the disabled person by the discriminator. In the case of s 6, the causal link with the disability is with the impact of the discriminator’s conduct upon the disabled person.
24 That s 6 does not require a causal link between the disability and the conduct which brought about the disadvantage is evident from its terms. The conduct of the discriminator with which s 6(1) is concerned is specified in para (a) as the requirement that the aggrieved person comply with a requirement or condition. That conduct will only constitute discrimination if it has “the effect of disadvantaging persons with a disability” (para (c)) but only where “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” (para (b)).
25 The causal link with the disability required by the word “because” is directed at the effect of the discriminator’s conduct: i.e. because of the disability the conduct had the disadvantageous effect. No direct connection between the disability and the conduct itself is required. The disability need not have caused the conduct. The nexus with conduct is merely indirect – hence the designation “indirect disability discrimination”.
26 Although the context is slightly different and directed to the failure to make reasonable adjustments which would have enabled the aggrieved person to comply with the requirement or condition, the same observations may be made in relation to s 6(2).
27 Turning then to s 5(1), the direct nexus between the discriminator’s conduct and the disability is unambiguously found in the phrase “because of the disability, the discriminator treats”. This is what Gummow, Hayne and Heydon JJ in Purvis described as the “causation question” (at [194]). In relation to the causation element in s 5(1) and in particular the phrase “because of”, Gummow, Hayne and Heydon JJ relevantly said this at [236] (emphasis in original):
… the central question will always be—why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? …
28 As to the nature and the order of the inquiry required by s 5(1), at [213] Gummow, Hayne and Heydon JJ said this:
Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability ‘‘in circumstances that are the same or are not materially different’’. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability.
29 That brings me to s 5(2), which Dr Sklavos relied upon to establish direct discrimination by the College. The causation question raised by s 5(2) is fundamental to the disposition of ground 1 of Dr Sklavos’ appeal. Succinctly put, Dr Sklavos’ case, both at trial and on the appeal, was that for s 5(2), the “further question” to which Gummow, Hayne and Heydon JJ referred in the passage just cited—whether the aggrieved person was treated less favourably because of the person’s disability—does not arise.
30 Dr Sklavos contended that s 5(2) requires a different approach to causation and comparison than that required by s 5(1). That much I would not dispute. By introducing concern for the making of a reasonable adjustment as well as for the less favourable treatment, the question of causation under s 5(2) is not as straightforward as for s 5(1). This is because on the face of the terms of the provision, an issue is raised as to whether the causation question is directed to the reason for the discriminator’s failure to make the reasonable adjustment or to the reason for the less favourable treatment which results or to both of those matters. Dr Sklavos submitted that the primary judge’s concern for the College’s reasons for failing to make the reasonable adjustments were “irrelevant” and “distracting”. I do not agree. I see no reason why the causation question should not be asked in relation to all of the conduct of the alleged discriminator because the failure to make the adjustment will inevitably feed into the conduct of the discriminator constituting the treatment. The result is that where the disability is a reason for any of that conduct the causation element of s 5(2) will be established. The primary judge’s concern with the reason for the College’s refusal to make adjustments for Dr Sklavos was relevant and part of her Honour’s conclusion that nothing that the College did was because of Dr Sklavos’ disability.
31 However, Dr Sklavos’ contention went further. It was submitted that “the whole focus of paragraph (b) [of s 5(2)] is not on the treatment but the effect”. That is to say that whereas s 5(1) is concerned with the reason for less favourable treatment, s 5(2) is concerned with whether the effect of a failure to make a reasonable adjustment results in less favourable treatment. It was contended that the whole focus of s 5(2) was on “the effect”, that is, the effect of a failure to make the reasonable adjustment and that the reason for the conduct of the discriminator is not part of the relevant inquiry.
32 Dr Sklavos’ construction of s 5(2) is wrong on a number of levels. That s 5(2) poses a causation question is obvious. The phrase “because of the disability” appears. It must be dealing with causation and it must be given work to do.
33 Consistently with s 5(1), s 5(2) poses two questions—the comparator question and the causation question. Whilst the context is different, the comparator question—was the aggrieved person treated less favourably than a person without the disability would be treated in circumstances that are not materially different—is in the same terms. Just as for s 5(1) that inquiry identifies whether there is less favourable treatment. To my mind the next inquiry is the same as that identified by Gummow, Hayne and Heydon JJ in Purvis at [213] for s 5(1):
If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability.
34 Section 5(2) was introduced by amendments to the DDA made by the Disability Discrimination and other Human Rights Legislation Amendment Act 2009 (Cth) (“2009 amendments”). The explanatory material stated that the amendments were designed to implement the recommendations of the Productivity Commission found in its Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004). The Explanatory Memorandum in relation to the 2009 amendments relatively said this of s 5(2):
37. This new subsection implements Productivity Commission Recommendation 8.1, which recommended that the Disability Discrimination Act should be amended to clarify that there is a general duty to make reasonable adjustments, with the exception of adjustments that would cause unjustifiable hardship.
38. Until relatively recently, the general view, including in the case law, was that that the Disability Discrimination Act impliedly imposes such a duty if such adjustments are necessary to avoid unlawful discrimination-subject to the defence of unjustifiable hardship. This view was supported by the Explanatory Memorandum of the Disability Discrimination Act and Second Reading Speech delivered when the Disability Discrimination Act was first enacted. However, comments made by members of the High Court in 2003 cast doubt on the existence of this duty (Purvis v NSW and the Human Rights and Equal Opportunity Commission [2003] HCA 62).
39. The proposed amendment removes this doubt by making explicit the duty to make reasonable adjustments, which are defined to exclude adjustments that would impose unjustifiable hardship. This will return the status of the law to the original intention when the Disability Discrimination Act was introduced.
35 The reference to comments in Purvis is to what Gummow, Hayne and Heydon JJ said at [217] and [218] to the effect that s 5, as it then stood, did not explicitly oblige the provision of different accommodation or services to the person aggrieved.
36 Dr Sklavos submitted that s 5(2) was introduced in response to, and in order effectively to reverse the effect of, the majority decision in Purvis. In so far as that submission sought to suggest that the enactment of s 5(2) was intended to differentiate s 5(1) from s 5(2) by either removing or altering the causation inquiry, the submission is without any foundation. It is unsupported by the explanatory material or the second reading speech, or any of the following authorities upon which Dr Sklavos’ submissions relied: Kiefel v State of Victoria [2013] FCA 1398 at [34] (Tracey J); Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207 at [139(a)] (Flick, Reeves and Griffiths JJ); Flanagan v Murdoch Community Services Inc (2010) 188 FCR 300 at [41]. Each of those authorities identified the aspect of Purvis addressed by the enactment of s 5(2) consistently with the account given by the Explanatory Memorandum.
37 Dr Sklavos also relied on Watts v Australia Post (2014) 222 FCR 220 at [241]–[246] (Mortimer J) to contend that s 5(2) “requires a different approach to causation and comparison from that required by s 5(1)”. In particular, the observations of Mortimer J at [242] were relied upon in oral argument to deny that s 5(2) has any concern for the reasons for the treatment of the aggrieved person.
38 There are observations made by Mortimer J which appear to have provided a springboard for Dr Sklavos’ submission. However, Dr Sklavos’ approach involves a significant misunderstanding of what Mortimer J had in mind. Her Honour does at [241] say that s 5(2)(b) “requires an inquiry into the effect of there being no reasonable adjustments for the aggrieved person”. I do not however understand Mortimer J to be saying that s 5(2) does not require the same causation question to be answered as is required by s 5(1): namely, was the disability a reason for the conduct of the discriminator. At [242], Mortimer J said this:
It is nevertheless correct in my opinion to approach s 5(2)(b) on the basis that the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person's treatment more readily emerges. In the context of s 5(2)(b), it can be said that the “real effect” more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between “less favourable treatment” and “because of the disability” in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not.
39 Her Honour’s reasoning seems to be this. At [223] of Purvis Gummow, Hayne and Heydon JJ emphasised that in addressing the comparison inquiry, “the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What then must be examined is what would have been done in those circumstances if the person concerned was not disabled” (emphasis in original). Where that is done, the “real reason” (Mortimer J’s phrase) as to why the person was treated less favourably will more readily emerge. Consequently, there is an overlap between the comparison inquiry and the causation inquiry, in the sense that the answer to the comparison inquiry will likely reveal the answer to the causation inquiry.
40 Whilst I would agree that to be so, I do not consider that the causation question need not be asked. In comparable circumstances, Gummow, Hayne and Heydon JJ in Purvis at [231] and [232] said that both the comparative and causation questions needed to be asked and not be elided. In any event, I do not consider that Mortimer J was intending to suggest that the causation inquiry is different in s 5(2) than it is in s 5(1) in the sense for which Dr Sklavos contends: that a reason for the conduct need not be the disability. The application of the construction given to s 5(2) by Mortimer J to the facts of that case reveals that through the comparison inquiry the question of whether the applicant’s disability explained the conduct (the unfavourable treatment) was both posed and answered (see at [249]–[254]).
41 There is no doubt that the effect of the discriminator’s conduct may bear upon why the aggrieved person was treated as he or she was. In addressing the causation inquiry in s 5(1) what was said (in full) at [236] by the majority in Purvis was this (emphasis in original other than underlining):
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.
42 As those observations suggest, why an aggrieved person is treated in a particular way as a consequence of not being provided with an adjustment may be the result of the effect (perhaps the cost) upon the discriminator of the provision of the adjustment. But the existence of an effect does not change the nature of the causation inquiry.
43 I recognise that there is some ambiguity introduced into s 5(2) by the use of the word “effect”. However, read in its context, the word “effect” is there used to provide some nexus between the failure to provide the adjustment and the less favourable treatment, and does not diminish the requirement that the disability be a reason for the less favourable treatment. Unlike s 6, where the word effect is addressing the disadvantageous conduct itself (“effect of disadvantaging”), in s 5(2) the word “effect” is addressing an anterior stage namely an omission that brought about the disadvantageous conduct. Understood in that way, just like in s 5(1), the nexus to disability is from conduct (the unfavourable treatment) and not from the effect of conduct as in s 6.
44 That construction is in harmony with the structure adopted by the DDA for separating direct disability discrimination from indirect disability discrimination, as well as providing internal harmony for s 5 itself. To construe the causation question as addressing the effect of the discriminator’s conduct rather than the reason for that conduct would severely undermine that intended harmony. It would also have the result that two provisions (s 5(2) and s 6(2)) would be essentially addressing the same subject matter of discrimination brought about merely where disability explains disadvantage. It would also serve to significantly deny what seems to be the obvious intent of the DDA as demonstrated by s 6(3), that conduct which is not driven (in part or in whole) by the disability (indirect discrimination) is more amenable to being justified and excused if it is reasonable than conduct that is based (in part or in whole) upon the disability (direct discrimination).
45 As earlier stated, Dr Sklavos relied upon s 19 (or more specifically s 19(b)) which makes it unlawful to discriminate “in the terms or conditions on which” an authority or body is, relevantly, prepared to confer a qualification. Dr Sklavos also relied upon ss 22 (education authorities and providers), 27 (clubs) and 29 (administration of Commonwealth laws and programs). The College admitted that it was a qualifying body and an education provider (but not an education authority) for the purposes of ss 19 and 22. The College denied that it was a club and contended that s 27 did not otherwise apply. The College also denied that s 29 and related provisions concerning the administration of Commonwealth laws and programs applied to it. Given the College’s admissions about it being a qualifying body and an education provider under, respectively, ss 19 and 22, the primary judge determined that it was unnecessary to resolve the disputed issues relating to the application of ss 27 and 29.
46 Section 22(2A) relevantly provides:
(2A) It is unlawful for an education provider to discriminate against a person on the ground of the person's disability:
(a) by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment;
…
47 The nature of the College’s discrimination against Dr Sklavos which was said by his pleading to constitute a contravention of s 19(b) was that Dr Sklavos had been discriminated against “on the ground of his disability in the terms or conditions on which [the College] is prepared to confer Fellowship of the College”. The nature of the discrimination alleged in reliance upon the College’s alleged contravention of s 22(2A)(a) was the development of a training course for dermatology trainees that had “content” that would exclude Dr Sklavos from participation or subject him to a detriment. The relevant content was particularised as “the requirement to pass the College’s Fellowship examinations in order to complete the training course and be eligible for election as a Fellow”. Although the applicability of ss 27 and 29 of the DDA was not resolved by the primary judge, I note that the nature of the conduct said to constitute the contravention of s 27(1)(b) was the same as that alleged in support of a contravention of s 19(b) of the DDA. The nature of the conduct said to have contravened s 29 of the DDA was alleged as “discrimination in connection with access to fellowship of the College”. When specifically addressing his allegation of indirect discrimination, Dr Sklavos pleaded that the College had failed to make reasonable adjustments to the method of assessing his eligibility for election as a Fellow, including by use of an assessment that did not involve the use of examinations or involved a modified assessment by examination.
48 Dr Sklavos’ case was that there were three alternative adjustments that the College should have made for him. They were identified by the primary judge at [84] as follows:
(a) he could have been assessed by a method that did not involve the use of examinations conducted by the College (Adjustment One); or
(b) the College's Fellowship examinations, as they applied to Dr Sklavos, could have been modified as set out in or by reference to Dr Sklavos's correspondence requesting adjustments on the basis of Dr de Saxe's recommendations (Adjustment Two); or alternatively,
(c) he could have been assessed using a combination of workplace-based assessments that would have allowed for an assessment of his competence to practise, conducted in a manner that would minimise the symptoms of his disability (Adjustment Three).
49 When addressing Adjustment One in relation to the direct discrimination case put by Dr Sklavos, the primary judge at [103] said that the case had “not grappled with the causation requirement in s 5(2)”. Further, the primary judge said that Dr Sklavos’ reliance on direct discrimination seemed misplaced altogether. The primary judge held that nothing the College did or did not do was caused by Dr Sklavos’ disability in the sense required by s 5(2). Later, at [126]–[127], the primary judge observed that Dr Sklavos’ case failed to grapple with the requirements of a comparator and causation and overlooked the critical requirement of s 5(2) 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”. Her Honour observed that the case put by Dr Sklavos did not confront the actual requirements of s 5(2).
50 In addressing Adjustment Two, at [132] the primary judge observed that the relevant comparator is a trainee who has not passed the college exams. The primary judge concluded, even taking into account Dr Sklavos’ preferred comparator – a trainee who had nearly passed the 2010 examination, that the College’s requirement that trainees sit and pass all examinations applied generally. Her Honour also observed that the College’s refusal to waive any part of its examination requirements “was not caused by Dr Sklavos’ disability”. At [153] the primary judge recorded that she rejected the direct discrimination case based on Adjustment Three for the same reasons that the case based on Adjustment One was rejected. She said that Dr Sklavos’ case failed “on the basis of causation and less favourable treatment than a relevant comparator”.
51 Additionally at [158] her Honour recorded that it was “impossible to accept Dr Sklavos’ case of direct disability discrimination because nothing the College did was because of Dr Sklavos’ disability”.
52 On the appeal, Dr Sklavos contended that the rejection of that part of his direct discrimination case based on Adjustments One, Two and Three was a result of the primary judge misunderstanding the causation element of s 5(2). In that respect, Dr Sklavos contended that the primary judge “wrongly thought at [103], [127], [132] and [158] that s 5(2) required consideration as to why the putative discriminator failed to make reasonable adjustments. However, that is an irrelevant and, in this case, distracting consideration”.
53 For the reasons I have explained, it was necessary for the primary judge to have posed and answered the causation inquiry required by s 5(2) as to why the aggrieved person was treated as he or she was and if the aggrieved person was treated less favourably was it “because of” that person’s disability. That she also posed the question in relation to the failure to make the adjustments was no error. That was an inquiry that Dr Sklavos’ case sought to avoid altogether. The primary judge did not misconstrue s 5(2) as Dr Sklavos’ first ground of appeal contends.
54 Dr Sklavos put a case of discrimination on the basis that his disability was not a basis or reason for the conduct of the College. Such a case could only have attracted s 6 and not s 5. Section 5 was not relevant to the question whether by its conduct the College did “discriminate” against Dr Sklavos on the ground of his disability contrary to ss 19(b), 22(2A)(a) or any of the other provisions in Part 2 of the DDA upon which Dr Sklavos relied.
55 I have dealt with the primary challenge raised under appeal ground one and rejected it. The other challenges made under that ground need not be further addressed. They are each premised on s 5 having been attracted to the case which Dr Sklavos put. It was not.
indirect discrimination
56 Dr Sklavos’ claim of indirect discrimination relied, in the alternative, on each of s 6(1) and s 6(2) to supply the definition of “discrimination”. Broadly stated, indirect discrimination as defined by s 6(1) arises where a discriminator requires the aggrieved person to comply with a “requirement or condition” which the aggrieved person cannot comply with because of that person’s disability and the aggrieved person is consequently disadvantageously affected.
57 The primary judge found, and no issue arises on the appeal, that s 6(1)(a) of the DDA was satisfied, in that the College imposed upon Dr Sklavos a condition that in order to be elected as a Fellow he had to pass the College’s final examinations (“examination condition”). Nor was it in contest that the primary judge was correct to hold that s 6(1)(b) and (c) were satisfied because, as a result of his disability, Dr Sklavos could not comply with the examination condition and that requirement had the effect of disadvantaging persons with Dr Sklavos’ disability.
58 The only issue in contention on the appeal was whether the primary judge erred in holding that the College had discharged the burden imposed by s 6(4) of establishing that the examination condition was “reasonable, having regard to the circumstances of the case” (s 6(3)). If s 6(3) is satisfied neither s 6(1) nor (2) apply.
Section 6(3) – Was the examination condition reasonable?
59 The primary judge considered various reasons why the examination condition should not have been waived by the College and various factors going to the effect of the application of the condition upon Dr Sklavos. Before concluding (at [204]) that she was “satisfied that the College has established that its examination requirement, as it applied and applies to Dr Sklavos, was and is reasonable having regard to the circumstances of the case”, the primary judge said this (at [203]):
Against this, all of the reasons against the waiver of the examination requirement identified above must be measured. Given those matters, it cannot be concluded that the College's insistence that all Australian trainees (and some international dermatologists) pass its final examinations is a matter of mere convenience. The examination requirement has an obvious logical and understandable basis. In fact, as at 2012 (and today) the requirement was close to a necessity because it was (and is) the only method the College had to satisfy itself of a trainee's competence without the College (and the AMC) undertaking substantial work to develop alternative assessment programs. The examination requirement was and is appropriate and adapted to the College, as the only body vested with the relevant responsibility for training dermatologists in Australia, being able to satisfy itself that a person is competent to practice as a dermatologist. While it is possible that the College could develop an alternative assessment program which would not have a discriminatory effect on Dr Sklavos, that development would require the College (and the AMC) to expend substantial effort to give Dr Sklavos a chance, but no more, to prove his competence.
60 On the appeal, Dr Sklavos contended that in reaching the conclusion that the examination condition was reasonable, the primary judge relied upon considerations and evidence which had not been relied upon by the College. Dr Sklavos contended that in adopting that course, the primary judge erred by effectively imposing upon him the onus of demonstrating that the examination condition was not reasonable.
61 To assess that challenge, it is necessary to outline the basis upon which the College sought to establish that the examination condition was reasonable, the position taken by Dr Sklavos and the considerations and evidence relied upon by the primary judge.
62 The primary judge recorded the circumstances relied upon by the College at [170] of her Honour’s reasons for judgment by reference to the list of considerations set out in the College’s Further Amended Defence. Other than one consideration (particular (iv)), there was no dispute and the primary judge found that each of the considerations relied upon by the College were established. The disputed consideration was not specifically resolved by the primary judge but that is of no real consequence. The considerations relied upon by the College were these:
i. the overall objective of the Respondent's training program is to produce dermatologists who are safe, skilled and competent in the diagnosis and management of all aspects of diseases of the skin and its appendages and able to respond to the change health needs of the Australian community;
ii. the structure of the training program over a four-five year full-time period is designed to ensure that the trainees pass through Basic Training in the initial two years and Advanced Training in the final three years. Trainees must pass through the defined stages to facilitate the progressive and cumulative acquisition of knowledge and skill;
iii. during the Basic Training, the trainee must acquire detailed and comprehensive theoretical knowledge and understanding of relevant anatomy, cutaneous microanatomy and biology, basic immunology, basic radiation physics and radiobiology, basic laser physics, and clinical pharmacology as it applies to the skin. Trainees are assessed on their knowledge and competence in this area;
iv. a further aspect of training through formative assessment, aims to enable trainees to become aware of their strengths and weaknesses, identify their learning needs, and with the assistance of their supervisors, to take steps to address those needs. Trainees must become aware of any gaps that exist between desired standards of performance and their current knowledge, skills and abilities. It encourages trainees to focus their attention on areas requiring improvement. The range of formative assessment strategies employed provides comprehensive assessment in:
1. interviewing skills
2. clinical examination skills
3. procedural dermatology skills
4. professional conduct
5. research skills
v. each stage of training must be completed to a satisfactory level;
vi. the training is designed to ensure that the trainees acquires skills in the treatment of complex dermatological conditions and can meet the demands of increased responsibility for patient management;
vii. the assessment is undertaken in an objective and appropriate manner to ensure that the high standards expected of trainees is meet;
viii. the Respondent currently holds an accreditation from the Australian Medical Council as the specialist medical program in Australia which allows a medical practitioner to be registered as a specialist dermatologist, conferring upon that medical practitioner the qualification of Fellowship of the Australasian College of Dermatologists.
ix. the assessment requirements of the Respondent have been accredited by the Australian Medical Council.
x. the Respondent undertakes assessment of trainees by a number of different means including both summative and formative assessments which are formulated to ensure that trainees who successfully complete the program of the Respondent are competent and safe to practise as a junior dermatological specialist.
xi. the Respondent had a Special Consideration policy which operated to permit trainees have their examinations held under alternative or varied conditions in certain situations;
xii. the Australasian College of Dermatologists Training Program Handbook 2009 at Appendix Three provides an internal appeals process for any person who claims to be adversely affected by a decision of the Board or Committee of the Respondent.
63 As is apparent, those considerations explain the objective of the College’s training program, the structure of that program, the knowledge and understanding that trainees must acquire, the nature and purpose of the assessments utilised, the accreditation requirements by the Australian Medical Council (“AMC”) and finally, the availability of a special considerations policy to permit examinations to be held under alternative or varied conditions in certain situations and the availability of an internal appeals process.
64 The College’s submissions to the primary judge was that:
In relation to the reasonableness of the exam requirement, it has plainly been established on the evidence that the assessment regime the College had in place was founded in logic and rationality, was accredited by the AMC following a rigorous accreditation process (the AMC having considered its various components, including the final examinations component), and was appropriate in order to assess the competency levels required before a trainee is admitted as a Fellow of the College and entitled to practice as a specialist or consultant dermatologist. It has been established that it was “reasonable” in the circumstances, including with regard to how the Courts have interpreted the word “reasonable” in cases alleging indirect discrimination - that is, having a logical and understandable basis, and noting that the test in respect of a reasonableness of a requirement or condition is one “less demanding that one of necessity, but more demanding that one of convenience”. Moreover, the fact that alternative modes of assessment may exist (in the present case alternatives to final examinations) does not in any way render the requirement or condition of the College’s final examinations unreasonable.
65 In support of its submission that it had established that the examination condition was reasonable as it had a “logical and understandable basis” the College also relied on evidence of Professor Jolly, a witness called by Dr Sklavos. In relation to that evidence, to which I will return, the College said this:
There can be no doubt that the evidence of Professor Jolly establishes the complete defence available to the College under section 6(3) of the Act to a claim of indirect discrimination. In short, even on the expert evidence called by the Applicant, it has been established that the Fellowship exams have a logical and understandable basis, and have relevance to medical training. The Court should find on the evidence that a balanced and reliable form of assessment for medical training would involve a combination of assessment tools which could include, among other measures, both workplace based assessments and final examinations – that is the reality of the manner by which the College assesses it trainees (and did so at or around 2010 to 2012).
And continued:
When one adds the evidence of the rigour with which the AMC have assessed and approved the College’s assessment program, there is no basis on the evidence to find other than that the College’s assessment program as at 2012 (and continuing) was reasonable in the circumstances.
66 The position of the College was that the examination condition, as part of the assessment requirements of the College, was reasonable per se and that was so whether or not any alternative to formal examinations was available as a mode of assessment. Or, in other words, the absence of an alternative mode for assessing competency did not detract from the reasonableness of the examination condition.
67 It was common ground on the appeal and at the trial that the College conceded that there were alternative assessment methods capable of achieving the same objective as the College’s final examinations. The primary judge said this at [173]:
I accept that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing postgraduate medical trainees' proficiency and competence. The College, sensibly, did not suggest otherwise.
68 After recording that concession and having earlier set out the considerations relied upon by the College (those set out at [62] above), the primary judge (at [175]–[198]) identified eleven related and somewhat overlapping matters which supported the judge’s ultimate conclusion that the examination condition was reasonable.
69 The first matter relied upon by the primary judge was that, in the context of the AMC having accredited the College’s training program and its final examinations, it was not open to the College to unilaterally waive its examination requirements without the AMC approving an alternative method of assessment.
70 The second matter was that any accreditation by the AMC of an alternative form of assessment would require AMC satisfaction that the alternative program would ensure competency akin to the extant scheme and would involve the AMC in substantial work.
71 The third matter was that the College’s examination requirements are the result of an extraordinary amount of voluntary and unpaid work from the dermatologists involved and that a system derived from that input, developed and refined over many years, and in relation to which there was no evidence of dissatisfaction (excluding Dr Sklavos), ought not be lightly waived.
72 The fourth and fifth matters were that, at the time that Dr Sklavos sought a waiver of the examination condition, the College did not have available to it an alternative program for assessing Dr Sklavos’ competency and that it is likely that the College would have had to carry out substantial work to ascertain the feasibility of an alternative method of assessment. Her Honour considered the assessment of international dermatologists under Rule B, only a starting point for the development of such an alternative.
73 Sixthly and relatedly, whilst the primary judge accepted that at least in theory an alternative assessment method could be developed, the task would be difficult and time consuming. The primary judge referred to Professor Jolly’s evidence and accepted submissions of the College based upon it. The primary judge concluded in relation to the sixth matter she relied on by finding that the evidence showed that great care would be needed to devise an alternative assessment program to the College’s final examinations.
74 The primary judge’s seventh point was that providing an alternative assessment method for Dr Sklavos would set a significant precedent, could impact upon other trainees who may be aggrieved by the fact that they were nevertheless required to pass the exam and would thereby raise difficult policy questions for the College and the AMC. By the eighth matter considered, the primary judge again raised concern that scarce and largely voluntary time and resources would need to be devoted to an individualised alternative assessment program which would be a cause of serious disquiet.
75 The primary judge’s ninth and tenth concerns focussed more directly upon Dr Sklavos. Her Honour observed that he had already been afforded a number of prior opportunities to establish his competence and questioned the merit of further resources being allocated to permit another opportunity for Dr Sklavos in circumstances where he did not lack a capacity to practice at all and could do so as a general practitioner or possibly a vocationally registered general practitioner. The primary judge’s eleventh point was that even if the College had waived the examination condition, as Dr Sklavos was at the time of trial incapable of subjecting himself to any form of assessment by the College, the idea that he could have subjected himself to alternative assessment by the College in 2012 struck her Honour as “unrealistic”.
76 The first to eighth of the considerations relied upon by the primary judge addressed or substantially addressed the impracticability of an alternative assessment method being developed, accredited and provided to Dr Sklavos.
77 However, the College did not put a case that practical considerations such as accreditation, resources, effort, policy considerations and other difficulties relied upon by the primary judge stood in the way of the College waiving the examination condition and providing Dr Sklavos with an alternative form of assessment. As earlier recorded, the case put by the College was that its assessment regime was appropriate and reasonable per se and that whilst an alternative mode of assessment to its final examinations may exist, that did not detract from the reasonableness of the examination requirement, given the appropriateness of that requirement. So much is reflected in the extract from the College’s submissions set out at [64] above.
78 There is force in the proposition that the primary judge relied upon a case not made by the College. On the appeal, the College did not cavil with that proposition. It did not suggest that it had relied upon practical considerations to establish that an alternative form of assessment could not have been reasonably made available. Instead, the College relied upon the same case it put to the primary judge in relation to the availability of an alternative form of assessment. The submission made was this (footnotes omitted):
The trial judge correctly observed that the fact that there were alternatives to final examinations as a method of assessing medical competence (a point conceded by the College, that being a concession the trial judge considered appropriate) did not in the circumstances detract from the reasonableness of the term.
79 That submission relied upon [173] and [205] of the reasons of the primary judge but is not sustained by those references. It is clear that the primary judge considered it necessary to have regard to the practicality of providing an alternative form of assessment for Dr Sklavos and relied upon the impracticability of doing so to support the conclusion that the College had established the reasonableness of the examination condition. Insofar as the primary judge concluded that an alternative assessment program did not detract from the reasonableness of the examination condition, her Honour did so including because, in essence, she regarded the provision of an alternative program as not reasonably practicable.
80 Putting aside for the moment issues of procedural fairness, the approach taken by the primary judge was, with respect, correct. It may be accepted, as the College submitted, that the Court in an assessment of reasonableness does not assess “whether the alleged discriminator could have made a ‘better’ or more informed decision”: CBA v HREOC at 112–113 (Sackville J). As the Full Court (Sackville and Stone JJ, with whom Tamberlin J agreed) said in Catholic Education Office v Clarke (2004) 138 FCR 121 at [115], the test of reasonableness is objective, having regard to the circumstances of the case. The subjective preferences of the aggrieved person cannot be determinative of the reasonableness of the impugned requirement although they may be relevant in assessing whether the requirement or condition is unreasonable. But as the Full Court went on to say at [115], whilst again not of itself determinative, the relevant factors to be taken into account in the application of the objective test will usually include whether reasonable alternatives exist that might accommodate the interests of the aggrieved person. Relevantly, the Full Court said this (emphasis added):
[115] …
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395 , per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC at 88, per Beaumont J; Victoria v Schou (2004) 8 VR 120 at [26], per Phillips JA.
81 In the circumstances of this case, whether a reasonable alternative existed that might achieve the objectives of the College while accommodating the needs of a disabled person in Dr Sklavos situation was clearly a relevant factor for consideration. That is so despite the evidence in support of the wisdom of the use of formal examinations as an assessment tool to assess the competency of candidates for Fellowship of the College. Professor Jolly’s evidence, which the primary judge recounted at [185] and [186], itself provided an evidentiary foundation for the primary judge’s conclusions that the “wisest” type of assessment program in medical training utilises a combination of several assessment tools including formal examinations as the College’s program in fact did. But, the evidence did not establish that the examination condition was an indispensable necessity, and in the face of the concession made by the College that examinations of the kind conducted by the College are one, but not necessarily the only, method of reliably assessing the proficiency and competence of medical trainees, the practicability and availability of an alternative assessment method was obviously relevant to the question of the reasonableness of the examination condition having regard to the circumstances of the case. The primary judge, with respect, correctly recognised that to be so. The problem is that the submissions of the College and the case it put at trial did not.
82 The Court was not apprised of the extent to which the primary judge put Dr Sklavos on notice that she may rely upon the impracticability of an alternative assessment program. If that was not done or not sufficiently done, I consider that Dr Sklavos may have justifiably complained that, on the issue of the practicability of an alternative assessment program, he was denied procedural fairness at trial. However that is not the substance of his complaint on the appeal. It is not expressly raised either by Dr Sklavos’ grounds of appeal nor by the submissions made on his behalf. Rather, the absence of any submission of the College on the impracticability of an alternative assessment method was relied upon by Dr Sklavos for the proposition that the primary judge should not have had regard to cost, difficulties or other impediments to the adoption of an alternative assessment method and should have found that the College lost on the issue of reasonableness, an issue which the College bore the onus of proving. Relatedly, Dr Sklavos contended that the primary judge erred by effectively imposing an onus on Dr Sklavos to demonstrate that the examination condition was not reasonable.
83 A failure to accord procedural fairness is capable of being cured either on an appeal or on a remittal. Any failure of the primary judge to give Dr Sklavos an opportunity to make submissions about the factual findings that should have been made on the evidence received at trial has effectively been addressed on the appeal. A number of submissions challenging the factual findings made by the primary judge on the question of the practicability of an alternative assessment program have been agitated on the appeal and I shall address those shortly. I would have expected that if there was evidence that Dr Sklavos may have called on the issue, but was denied the opportunity to do so by the approach taken by the primary judge, the Court would have been informed of its existence. There was no suggestion, however, that Dr Sklavos had particular evidence that he would have called or now wishes to call, having been denied the opportunity to do so at trial. In any event, the error that Dr Sklavos relies upon is not founded on procedural unfairness. Rather, it is based on the proposition that the College’s burden of proof could only have been discharged by reference to the submissions and evidence it had relied upon to discharge that burden.
84 The primary judge well understood that the onus on the issue of the reasonableness of the examination condition fell upon the College. Her Honour said so at [166]. Putting aside issues going to procedural fairness, for the reasons I have given, the primary judge was correct to have regard to the reasonable practicability of the College providing an alternative assessment program to Dr Sklavos. A court’s obligation to do justice in the case (Nescor Industries Group Ptyd Ltd v Miba Pty Ltd [1997] FCA 1431 (Davies, Tamberlin and Nicholson JJ)) will, from time to time, lead the court to rely upon relevant evidence adduced at trial but not expressly relied upon by the parties. If that should happen to assist the discharge of a particular burden, so be it. There is no principle restricting the discharge of a burden of proof to those considerations raised by the party on which the burden falls. Nor is there error in reliance being placed on evidence not called by the party that bears that onus. Even where a reverse onus of proof applies, as was here the case, the respondent’s burden may be discharged by reference to the evidence of the applicant: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [192] (Logan, Bromberg and Katzmann JJ). If procedural fairness had been accorded, there could be no complaint made about the approach of the primary judge. No complaint about a failure to accord procedural fairness is made by Dr Sklavos.
85 In my view, there was no error of the kind Dr Sklavos relied upon. Particular (a)(i) of appeal ground 2 and so much of particulars (a)(ii), (a)(vi), (a)(vii) of appeal ground 2 as challenge the primary judge’s reliance on evidence and submissions not relied upon by the College, must be dismissed. The same conclusion applies to particular (d) of appeal ground 3 to the extent that that ground asserts error of the same kind.
86 I turn then to consider the factual errors asserted to have been made by the primary judge in finding that the examination condition was reasonable in all of the circumstances of the case.
87 The first challenge is raised by particular (a)(ii) to appeal ground 2. Dr Sklavos asserted that the primary judge erroneously found that developing an alternative form of assessment would be “difficult and time consuming” (at [184]]) and “substantial work” and “substantial effort” (at [203]).
88 Dr Sklavos submitted that the impugned findings are unsupported by evidence relied upon by the College. I have dealt with that already but, insofar as Dr Sklavos intended to say that the impugned findings are unsupported by any evidence, I consider the submission to be unsustainable. That developing and implementing an alternative assessment program would be difficult and involve substantial effort is almost a self-evident proposition which flows out of the uncontested objective of the College’s training and assessment practices of ensuring that only medical practitioners who are “safe to practice” dermatology are accredited to do so. In any event, there was ample evidence before the primary judge supportive of the findings which her Honour made.
89 Many of the eleven matters relied upon by the primary judge at [175]–[198] to which I have earlier referred, deal with the impracticability of an alternative assessment method by reason of the work and effort that would be involved in formulating and providing it. The evidence upon which the primary judge relied is there set out. At [177] the primary judge concluded on the evidence of Dr Fischer, the Chief Censor of the College in 2010, that “it is obvious that the College’s examination requirements represent an extraordinary amount of work for the dermatologists involved, work which is undertaken on a wholly voluntary and unpaid basis”. Her Honour at [177] set out evidence of Dr Fischer. At [178] her Honour set out some of the evidence of Dr Corderoy an education specialist employed by the College. The evidence of Dr Fischer and Dr Corderoy detailed the nature of the curriculum provided by the College and the nature and extent of the work involved in both providing that curriculum and assessing the competence of trainees. At [179] the primary judge described what the College had in place as a system “which has been developed and refined over many years [and] which has involved extraordinary amount of work to bring it to its present standard …”
90 The evidence of the very substantial and sustained effort involved in providing the current assessment method was an obvious foundation from which an inference could be drawn that providing an alternative and equally reliable indicator of competence would involve substantial work and effort and would be difficult and time consuming. Part of the difficulty that the primary judge obviously had in mind was raised in the evidence of Professor Jolly. That evidence, as the primary judge’s reasons reveal at [184], indicated the complexity of an assessment program given the need for a “variety of assessment methods that complement each other”. At [187] and [188], the primary judge considered by reference to Professor Jolly’s evidence that there is difficulty in developing reliable assessment systems and that great care would be required.
91 All of that, as the primary judge noted at [191], had to be considered in the context of there being 450 dermatologists across Australia and that the College was dependent on volunteers taking time out of their practice to ensure that new dermatologists can be trained and assessed.
92 I have taken into account Dr Sklavos’s contention that the evidence showed that the College already had recognised alternative assessment methods which it had previously formulated and implemented. That contention, as Counsel for Dr Sklavos conceded, was not intended to suggest that the College had “on its shelf, ready to go, a suite of alternative methods of assessment designed for the circumstances of Dr Sklavos’ case”. But Dr Sklavos did contend that the evidence demonstrated that in order to assess overseas trained and qualified dermatologists the College had a demonstrated means of devising assessment processes which did not involve the application of the examination condition. So much may be accepted as indeed I consider that the primary judge did. The existence of those processes, as the primary judge acknowledged at [180], might have provided a “starting point” for the development of an alternative assessment program designed to meet the particular circumstances of Dr Sklavos. However, as the primary judge went on to say at [181], the situation in respect of international medical graduates was not directly comparable. In any event, the fact that a starting point existed does not detract from the finding that to reach the finish line substantial work and effort would be required and that difficulties were likely to be encountered.
93 Dr Sklavos’ reliance upon the concession made by the College does not assist his contention. The concession that there were alternatives was not a concession that an alternative could be provided to Dr Sklavos without substantial effort and without difficulties being encountered. I would, however, accept that the failure of the College to rely upon those considerations diminished their force. Nevertheless, I consider the impugned findings were open on the evidence.
94 I also reject the challenge made by particular (a)(iii) of appeal ground 2 which asserts that the primary judge erroneously treated those findings as determinative of the test posed by s 6(3) of the DDA. The submissions of Dr Sklavos briefly elaborated on the contention by saying that the findings in relation to impracticability were not weighed against the discriminatory effect. I reject that contention. The reasons of the primary judge amply demonstrate that the primary judge was well aware that all the circumstances of the case had to be taken into account in the application of s 6(3) and the primary judge’s reasons demonstrate that a very wide range of circumstances were taken into account, including the discriminatory effect of the examination condition.
95 Dr Sklavos also contended that the primary judge wrongly reduced the weight to be accorded to the effect on Dr Sklavos of the examination condition, because the judge erred in concluding that it was probable that Dr Sklavos would not have been able to successfully complete any alternative assessment program that may have been provided to him by the College. This aspect of Dr Sklavos’s appeal is raised by particulars (a)(iv) and (a)(v) of appeal ground 2. It relates to the findings made by the primary judge at [201]–[202] where her Honour said this:
[201] I accept the submission for Dr Sklavos that the College's examination requirement means that he will be prevented from practising his chosen profession, in circumstances where he has devoted many years of work and study to becoming a specialist dermatologist. I accept too that:
This has had an adverse effect on his professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction.
[202] Dr Sklavos will be able to practice as a general practitioner, including in a practice focusing on skin conditions. He has a strong subjective preference to have the examination requirement waived, but unless there was developed by the College in or after 2012 an alternative program of assessment there was no rational basis upon which the College could elect him as a Fellow. Given his performance in the 2010 clinical examinations and his beliefs about the College, there is also no sound basis for inferring that there was a probability that Dr Sklavos would have been capable of successfully undertaking alternative assessments at and from 2012. His performance in the 2010 examinations and beliefs about the College, at the least, made it a real risk (and in my view, a probability) that in and from 2012, he would not be able to successfully complete any alternative assessment program given the College's inevitable involvement in such a program.
96 Dr Sklavos contended that the finding that he probably would not have been able to successfully complete an alternative assessment program if it had been offered, improperly conflated the issue of whether he was competent to practice as a dermatologist (an issue relevant to damages) with the issue of whether an alternative assessment program would have assisted him to be assessed for Fellowship on the same basis as others. Dr Sklavos also contended that to the extent that the finding went to the latter issue, it was contrary to the evidence and did not reflect any submission put by the College.
97 In my view there is no error of the kind asserted by Dr Sklavos. As part of her consideration of the reasonableness of the examination condition with regard to the relevant circumstances of the case, the primary judge took into account the impact upon Dr Sklavos of the examination condition. At [201] her Honour accepted that as a result of the imposition of the examination condition, Dr Sklavos will be prevented from practising his chosen profession. The primary judge in that regard accepted that that would have an adverse effect on Dr Sklavos’s professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction. At [202] the primary judge properly considered whether there were circumstances which warranted some discounting of the full impact of the adverse effects recognised at [201]. In that respect, her Honour took two matters into account. The first was that despite not being able to practice as a specialist dermatologist, Dr Sklavos would be able to continue to practice as a general practitioner including in a practice focussing on skin conditions. Secondly, her Honour took into account the likelihood of Dr Sklavos successfully undertaking an alternative assessment in and from 2012. That was relevant because the prospect that Dr Sklavos would not have been admitted as a Fellow under an alternative assessment if it had been offered, necessarily reduces the adverse impact of the examination condition.
98 In respect of that matter, the primary judge took into account two considerations. The first was Dr Sklavos’ poor performance in the 2010 clinical examinations. That provided some indication of the probability of Dr Sklavos’ likely success if an alternative assessment program had been provided to him. Secondly, the primary judge took into account Dr Sklavos’ “beliefs about the College” in the context that any alternative assessment program would inevitably involve the College in providing that program. Read in context and with an eye to the observations earlier made by the primary judge (in particular at [75]-[83]), the primary judge was referring to the impact upon Dr Sklavos’ capacity to successfully complete any alternative program made available to him in the context of his “unshakeable beliefs … about the College being involved in a conspiracy against him” (at [80]). As her Honour recounted at [75]–[83], Dr Sklavos’ strong obsessive, paranoid and narcissistic personality traits resulted in him developing a perception that the College was involved in a conspiracy to deprive him of dermatological qualifications. The prior demonstrated inability of Dr Sklavos to successfully interact with the College (including in completing workplace placements) was obviously relevant to the probability of Dr Sklavos successfully completing any alternative assessment program offered by the College. The matters her Honour took into account were relevant to the issue she was considering. Any conflation with the issues relevant to damages was no error: both questions are concerned with impact on Dr Sklavos.
99 Additionally, Dr Sklavos asserts that the finding in relation to his capacity to complete any alternative assessment was contrary to the evidence. In that respect, Dr Sklavos relied upon his own evidence and also evidence given by Professor Glozier. Whilst that evidence suggested that Dr Sklavos would have been able to undertake an alternative assessment program in 2012, the evidence did not deal with Dr Sklavos’ capacity to successfully undertake any such program which is the subject of the impugned finding. The primary judge was well aware of the evidence that an alternative program may have been commenced but her concern, as is made clear at [155], was with whether it was likely that Dr Sklavos could successfully complete that program.
100 This aspect of Dr Sklavos’ appeal is also not sustained and must be dismissed.
101 Dr Sklavos further contended that the primary judge erroneously found at [175] that it was not open to the College to vary or waive the examination condition unilaterally, without having first obtained accreditation from the AMC for an alternative assessment program to stand as a substitute for the components tested by the College’s examinations. Dr Sklavos contended that the primary judge erred in this respect because accreditation by the AMC would not be required unless the waiver of the examination condition and its substitution with an alternative assessment program for Dr Sklavos was regarded by the AMC as “a major change” to the program of study provided by the College. In this respect, Dr Sklavos relied on a publication of the AMC titled “Procedures for Assessment and the Accreditation of Specialist Medical Education Programs and Professional Development Programs by the Australian Medical Council 2013”.
102 The primary judge made reference to that document at [176] but it is not clear whether the terms of that document dealing with the assessment of proposals for “major change” were drawn to her Honour’s attention and were taken into account in the finding made that an alternative assessment program would need to be accredited by the AMC. Her Honour’s reasons appear to be focussed upon whether or not the examination processes were part of what the AMC accredited. Having determined that they were, the reasoning seems to proceed on the basis that any change would require the involvement of the AMC. Nevertheless, I do not regard the finding impugned by Dr Sklavos as erroneous. As her Honour found at [176], the accreditation requirements of the AMC are “detailed and rigorous”. A rigorous accreditation process for medical trainees would obviously include, as a vital component, AMC approval of the assessment processes utilised to assess competency. It is likely, in those circumstances, that any waiver of the AMC accredited assessment process and its replacement with a substitute would be regarded by the AMC as a “major change” and, in accordance with its procedures, the AMC would need to accredit the change. For those reasons, I reject the contention raised by particular (a)(vi) of appeal ground 2 which asserted that the primary judge was wrong to conclude that accreditation from the AMC would be required.
103 Lastly, in relation to appeal ground 2, by particulars (a)(vii) and (a)(viii), Dr Sklavos asserted that regard was erroneously given to the following irrelevant matters:
The assumed precedential effect of any decision to waive the examination condition for Dr Sklavos and the need to address difficult questions of policy (at [189], [190]);
That any further training invested in Dr Sklavos was training that could be made available to another trainee (at [192]);
The number of opportunities that a single trainee should be given and that at the time of the hearing, Dr Sklavos would have only one more year to pass the Fellowship examinations (at [193]); and
The fact that Dr Sklavos had not been practicing any form of dermatology for more than three years, when the relevant issue was the reasonableness of the examination requirement in 2012 (at [194]).
104 Each of the impugned matters were part of one or other of the matters which her Honour took into account in addressing the practicability of the College providing an alternative assessment program for Dr Sklavos. In that context, her Honour considered various difficulties that may confront the College in providing an alternative assessment program for Dr Sklavos. Each of the matters suggested to be irrelevant formed part of that consideration which, as I have earlier identified, was a relevant consideration to the question of whether the imposition of the examination condition was reasonable in all of the circumstances of the case. When each of the impugned matters is read in the context of the paragraph in which it appears, the relevance of that matter to the question of practicability is apparent. Other than asserting irrelevance, no submission was made by Dr Sklavos as to why any of the matters impugned should be considered to be irrelevant to the issues properly before the primary judge. I can see no basis for the assertion that they were.
105 For all of those reasons, ground 2 of the appeal must be dismissed.
Indirect disability discrimination contrary to s 6(2)
106 Dr Sklavos’ third appeal ground is that the primary judge erroneously failed to find that he had been subjected by the College to indirect disability discrimination contrary to s 6(2) of the DDA. It follows from my holding that Dr Sklavos has not established error in the primary judge’s finding that the examination condition was reasonable that, even if Dr Sklavos succeeded in establishing error in relation to the primary judge’s application of s 6(2), his appeal should not be allowed. As earlier stated, by reason of s 6(3), where the “requirement or condition” is found to be reasonable neither s 6(1) or (2) apply.
107 Whilst it may not be necessary to do so, I will outline why I consider that even if s 6(2) did apply because s 6(3) did not, the challenge made to the way in which the primary judge dealt with the issues raised by s 6(2) is not made out.
108 First, the primary judge was correct to conclude as she did at [160]:
Section 6(1)(b) relates to cases where the disabled person is not able to comply with the requirement or condition at all, whereas s 6(2)(b) relates to cases where the disabled person is able to comply with requirement or condition but only if adjustments are made. As such, there cannot be discrimination under both ss 6(1) and 6(2). The provisions operate in the alternative.
109 That conclusion is not in contest.
110 Next, the primary judge concluded that Dr Sklavos did not have a case arising under s 6(2) of the DDA because the judge was satisfied that Dr Sklavos would not have been able to comply with the examination condition at all irrespective of whether any adjustment to that condition had been made.
111 Dr Sklavos contended that the primary judge erred in not finding that if the adjustments sought by Dr Sklavos as communicated in his letters to the College of 8 March 2012 and 5 April 2012 (other than the request to waive all or part of the written examinations) had been granted, Dr Sklavos could have met the examination condition. The primary judge concluded that one of the requested adjustments, a demand for an explanation of “the clinic incident”, was not an adjustment at all. That finding is not in contest. As for the other requested adjustments (excluding the waiver of the written examinations) the primary judge concluded that even if those adjustments had been made, Dr Sklavos would not have been able to comply with the examination condition (at [161]).
112 The basis for the primary judge’s conclusion was that the state of Dr Sklavos’ mental health in 2012 was such that whether the requested adjustments had been made or not, it was not practical for Dr Sklavos to have sat the College’s final examinations. As the following passage (at [163]), records, the primary judge regarded as untenable Dr Sklavos’ contention that if all (rather than some) of the requested adjustments had been accepted by the College, the state of his mental health would not have precluded him from taking the examinations:
Applying this approach, it is not practical that Dr Sklavos seriously compromise his mental health by forcing himself to take the College's examinations about which he has developed a specific phobia. Despite his belief to the contrary, I am satisfied also that it was not practical for Dr Sklavos to do so in 2012. As I have said, the idea that because the College did not meet all his required adjustments (albeit in the relatively minor respects I have identified once the demand for an explanation of the clinic list incident and waiver of the examinations altogether are put to one side, as they should be), Dr Sklavos experienced such severe anxiety in 2012 that he had to withdraw from the examinations - but that had all such adjustments been made he would have been able to sit for the examinations - in my view, is untenable on the evidence. Even if the College had made every adjustment sought I am satisfied that, having developed the specific phobia by January 2012, Dr Sklavos would have been unable to take the examinations in that year. Everything he experienced as the 2012 examinations approached (extreme agitation and anxiety, marked sweating, increased heart rate, dry-retching and insomnia) would have been experienced whether or not the College had agreed to all his requests about adjustments to the examination processes.
113 Essentially the same issue was addressed by the primary judge in dealing with “Adjustment Two” in relation to Dr Sklavos’ case reliant upon s 5(2) of the DDA. What was there said must also be taken into account and, in fact, identifies the basis for which Dr Sklavos contends the impugned errors were made. At [138]–[139] the primary judge relevantly said this:
[138] Given the existence of Dr Sklavos's specific phobia by January 2012, I am not persuaded on the evidence that anything the College could have done in 2012, other than waiving the requirement for Dr Sklavos to sit any of the examinations, would have made any difference to Dr Sklavos in 2012. It may be accepted that Professor Glozier said that the person with the disability is usually best placed to know what adjustments will assist them. But this is a case where the disability relates directly to the requirement. It is a specific phobia about the very requirement in respect of which adjustments were sought. In these circumstances, and given that Dr Sklavos ultimately could not sit the examinations at all in 2012 by reason of his disability, I am unable to accept that if the College had simply accepted all of Dr Sklavos's proposals (other than waiver of the examinations) Dr Sklavos would have been in any different position. In other words, given the nature of Dr Sklavos's disability and how it relates to the requirement of the College, I am not persuaded that the failure of the College to do anything less than waiver of the examinations "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".
[139] It follows that I do not accept that Dr Sklavos's opinion that had the College simply done as he asked in respect of all adjustments (excluding the waiver) he would then have been in a different position from the one he was in in 2012. I note that this is supported by Professor Glozier who said that "actually I doubt whether any accommodation would enable him to reduce his level of anxiety to that of a normal person who has not had such experiences". …
114 Then at [141]–[144] the primary judge had regard to Dr Sklavos’ beliefs that the College was involved in a conspiracy against him. I have referred already to the nature of those beliefs at [98] above. Her Honour found that the conspiracy beliefs were a basis for supporting her conclusion that there was nothing the College could have done to assist Dr Sklavos in 2012 other than waive its examination requirements altogether.
115 The challenge made to the primary judge’s fact finding has two components. The first is that the primary judge wrongly rejected Dr Sklavos’ opinion that if the requested adjustments had been made, his anxiety would have been ameliorated. As to that, the primary judge set out the basis for her rejection in the second sentence of [139]. Dr Glozier’s evidence, the opinion upon which the primary judge relied, was sufficiently probative of the issue in question to justify the rejection of Dr Sklavos’ opinion. In any event, even if Dr Sklavos’ view had been accepted, there is no basis for thinking that it would have been a weighty consideration, let alone determinative on the issue of whether the College’s acceptance of the requested adjustments would have made any significant difference to Dr Sklavos’ capacity to sit the final examinations in 2012. I note in this respect, that whilst at [138] the primary judge accepted Dr Glozier’s view that “the person with a disability is usually best placed to know what adjustments will assist”, the primary judge did not (as the next two sentences at [138] reveal) regard Dr Sklavos’ case to be ordinary. Contrary to Dr Sklavos’ submission I see nothing illogical in her Honour distinguishing Dr Sklavos’ circumstances from the usual case.
116 The second component of the challenge relates to the second sentence of [139] and the primary judge’s quoted reliance upon Dr Glozier’s evidence as a basis for rejecting Dr Sklavos’ opinion.
117 Dr Glozier’s oral evidence appears to have been broader than what he said in his report where he said in relation to adjustments being made for Dr Sklavos that “I doubt whether any accommodation could completely alleviate his anxiety…” (emphasis added).
118 Dr Sklavos contended on the appeal that the primary judge had made a “jump” from the “relative statement that an adjustment would not completely alleviate Dr Sklavos’ anxiety” to “saying in absolute terms that the adjustment would not have made any difference”. However, the submission misunderstands her Honour’s approach. Read in context, the primary judge was not saying that any adjustment would have made no difference at all. She was concerned with whether by reference to Dr Sklavos’ capacity to undertake the final examinations, any adjustment could have made a material difference (see in particular the reference to “materially different position” at [139]). The conclusion was open to the primary judge including on the basis of Dr Glozier’s evidence. Dr Sklavos’ contention is without merit.
119 For all those reasons, appeal ground 3 should also be dismissed.
Disability Standards
120 The Disability Standards for Education 2005 (Cth) (“Disability Standards”) is a legislative instrument made pursuant to s 31 of the DDA. Section 31, which forms part of Division 2A of Part 2 of the DDA, empowers the Minister to formulate “disability standards”. Section 32 of the DDA makes it unlawful for a person to contravene a disability standard. Section 34 of the DDA provides that if a person acts in accordance with a disability standard, Part 2 of the DDA (other than Division 2A) will have no application to that person’s act.
121 Dr Sklavos alleged the College had contravened clause 5.2(1) and (2) and clause 6.2(1) and (2) of the Disability Standards and had therefore contravened s 32 of the DDA.
122 The primary judge rejected those allegations. The reasons of the primary judge are brief. At [211] of her Honour said this (emphasis in original):
[211] As to s 32 and the Disability Standards for Education 2005, the obligation in para 5.2(1) on which Dr Sklavos relied is to "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" (emphasis added). I would not find any breach of this standard. Further, para 6.2(1) requires that an 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" (emphasis added). Again, I would not find any breach of this standard. Consistent with my reasons above, I do not accept that the College otherwise failed to consult Dr Sklavos or failed to make such adjustments as it reasonably could in the circumstances. As such, I do not accept that the College breached paras 5.2 or 6.2 of the Disability Standards for Education 2005. I do not need to resolve whether the College was an educational authority as well as an educational institution.
123 In relation to each of clauses 5.2 and 6.2 of the Disability Standards, ground 4 of Dr Sklavos’ appeal raises two challenges. First (ground 4(a)), that the primary judge failed to give any or sufficient reasons for rejecting the alleged contraventions and second (ground 4(b)-(d)), that the primary judge erroneously found that there were no contraventions.
124 I will first deal with the allegation that there was a failure to provide sufficient reasons. The relevant principles were not in dispute. The primary judge was under an obligation to give sufficient reasons for her decision.
125 In Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 at [40]–[41], the Full Court (Tamberlin, Sundberg and Besanko JJ) said this:
[40] Clearly, a trial judge is under an obligation to give reasons for his or her decision. The rationale for the obligation has been discussed in a number of cases. It is sufficient to refer to two cases. In Pettitt v Dunkley [1971] 1 NSWLR 376 (“Pettitt v Dunkley”), Moffitt JA said (at 388) that a court or judge, including an intermediate court of appeal, is under an obligation to give reasons “so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court”. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (“Soulemezis v Dudley (Holdings) Pty Ltd”), McHugh JA (as his Honour then was) said (at 279) that the giving of reasons for a judicial decision served at least three purposes: first, “it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”; secondly, “the giving of reasons furthers judicial accountability”; and, thirdly, the giving of reasons enables practitioners, legislators and members of the public to ascertain “the basis upon which like cases will probably be decided in the future”. McHugh JA went on to say (at 280-281) that the extent of the duty to give reasons was related to the function to be served by the giving of reasons, and he gave as an example of that proposition the need to give more elaborate reasons where legislation gives a right of appeal against a decision than where no appeal lies.
[41] The nature and content of the duty to give reasons has been discussed in a number of cases. In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Gray J (with whom Fullagar and Tadgell JJ agreed) said (at 18) that the adequacy of reasons will depend on the circumstances of the case. The reasons of a trial judge will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based, or justice is not seen to have been done. In that case, Gray J said that the trial judge’s reasons were inadequate because his reasoning process was not revealed to the appeal court, such that a judgment could be made as to whether he had fallen into error. His Honour also said that the insufficiency of the reasons had the consequence that justice was not seen to be done.
126 Those observations were adopted by Ryan, Mansfield and McKerracher JJ in Devers v Kindilan Society [2010] FCAFC 72 at [59] and Jacobson, Foster and Katzmann JJ in New Zealand v Johnston [2011] FCAFC 2 at [104].
127 At [43] of Carlisle Homes, the Full Court identified three fundamental elements in the obligation to give reasons as follows:
First, the court or judge should refer to relevant evidence and if there is conflicting evidence, reference should be made to both sets of evidence. Secondly, the court or judge should set out the material findings of fact and identify his or her ultimate factual conclusions. Thirdly, the court or judge should provide reasons for making his or her findings of fact and conclusions, and reasons in applying the law to the facts found.
128 It is necessary, however, to bear in mind the following observation made in Devers at [58] and followed by Gray, Marshall and Bromberg JJ in Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 at [31]:
…a judge’s duty to give reasons is not one which requires him or her to examine in detail every issue raised in the proceedings or to record in minute detail the reasons which led to any particular conclusion. It is enough if the judge outlines the facts found and the process of reasoning which led to the ultimate conclusion…
129 It is apparent that [211] of the primary judge’s reasons does not refer to relevant evidence, set out material findings of fact or explain how the law was applied to the facts found. The first sentence of [211] sets out the obligation in clause 5.2(1) upon which Dr Sklavos relied. The second sentence is the ultimate conclusion that the clause was not contravened. The third and fourth sentences take the same form in relation to the alleged contravention of clause 6.2(1). There is no reference made expressly in [211] to clauses 5.2(2) or 6.2(2) of the Disability Standards. The fifth sentence refers to a failure to “consult” and a failure to make “adjustments”. Each of clauses 5.2(2) and 6.2(2) deal (in part) with those subjects. It may be that the sentence was intended to address those two clauses.
130 At a prima facie level, the reasons given at [211] appear insufficient to meet the obligation to give reasons. That paragraph, however, must be read in the context of the whole of the reasons for judgment given by the primary judge. The 210 paragraphs that precede it deal with a case which raised many issues not dissimilar to those raised by the case agitated by Dr Sklavos under clause 5.2 and 6.2 of the Disability Standards and, as Dr Sklavos’ submissions on the appeal acknowledged, Dr Sklavos relied upon the same evidence for both his discrimination case and his case that the College failed to comply with the Disability Standards. Additionally, insofar as Dr Sklavos relied on any obligation imposed upon the College by the Disability Standards to make “reasonable adjustments” he relied upon the same adjustments as those contended for under his discrimination case. That context was the anchor for the College’s submission that [211] should be understood as recording that the trial judge rejected the Disability Standards claims for the same reasons as those given by the primary judge in rejecting the discrimination claims.
131 However, a consideration of the Disability Standards and the issues which arose for decision in relation to the claim made by Dr Sklavos under those Standards reveals a discrete case the rejection of which warranted fuller explanation.
132 Clauses 5.2 and 6.2 of the Disability Standards provide:
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
(b) in the light of the consultation, decide whether an adjustment is necessary 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
(c) if:
(i) an adjustment is necessary to achieve the aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in relation to that aim;
make a reasonable adjustment for the student in accordance with Part 3.
(3) The provider must repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time.
(4) For this section, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsections (2) and (3).
Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for a provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).
…
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
(b) in the light of that consultation, decide whether an adjustment is necessary to ensure that the student is able to participate in those learning experiences on the same basis as a student without a disability who is enrolled in the course or program; and
(c) if:
(i) an adjustment is necessary to achieve the aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in relation to that aim;
make a reasonable adjustment for the student in accordance with Part 3.
(3) The provider must repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time.
(4) For this section, in relation to a student enrolled in a course or program, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsections (2) and (3).
Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for a provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).
133 The interactions between subclauses (1) and (2) of each of clauses 5.2 and 6.2 were the subject of submissions made by Dr Sklavos before the primary judge and on the appeal. Those submissions were not addressed in the submissions of the College on the appeal. They were not addressed in the written submissions of the College before the trial judge. Whether they were otherwise addressed is not clear from the material before the Court. The issue was not addressed in the reasons of the primary judge. It is, as I will explain, an issue of some importance.
134 In his submissions to the primary judge, Dr Sklavos contended that the obligations in clause 5.2(1) and (2) and clause 6.2(1) and (2) are, in each case, related but free standing. The purport of the submission, was that irrespective of whether the obligation imposed by subclause (1) of clauses 5.2 and 6.2 was satisfied, the obligations of consultation, consideration and adjustment specified by subclause (2) and the obligation to reconsider the appropriateness of any conclusions under subclause (2) in the face of the changing needs of the student specified by subclause (3) must nevertheless be met.
135 It will be noticed that each of subclauses (1), (2) and (3) of clause 5.2 are cast in mandatory terms. However, subclause (4) of clause 5.2 provides that a provider that has complied with subclauses (2) and (3) is taken to have complied with subclause (1). It is also important to observe that the obligation in 5.2(1) to “take reasonable steps” appears to impose a wider obligation than that imposed by 5.2(2)(c) to make an identified “reasonable adjustment”. That must be so including because satisfaction of 5.2(1), as provided for by 5.2(4), entails taking steps beyond the step of making a reasonable adjustment. It involves the further steps of consultation (5.2(2)(a)), consideration (5.2(2)(b)) and, as necessary, any repeat of those steps (5.2(3)). As the structure of clause 6.2 mirrors that of clause 5.2, the same observations apply to that clause.
136 The making of a “reasonable adjustment” in accordance with clause 5.2(2)(c) would not itself be sufficient to discharge the obligations imposed by clause 5.2. What appears to be intended is that any necessary reasonable adjustment be made “in the light of the consultation” required by 5.2(2)(a) and with the benefit of the education provider having made the considerations required by 5.2(2)(b).
137 That all suggests that the purpose of 5.2(2) and (3) is to give definition to the “reasonable steps” required to be taken by 5.2(1). If that is so, 5.2(1) and (2) are not free standing but the purpose of 5.2(2) is to specify how the provider “must” meet its obligation to take the “reasonable steps” required by 5.(2)(1). In any event, 5.2(2) is framed mandatorily and must be complied with. The same analysis applies for clause 6.2.
138 What emerges from that analysis is that whilst 5.2(1) and (2) and 6.2(1) and (2) are not properly to be described as “free standing”, Dr Sklavos was nevertheless correct to submit that to meet the obligations imposed by clauses 5.2 and 6.2, the education provider must discharge the consultation and consideration requirements specified by subclauses (2) and (3) of each of clauses 5.2 and 6.2. Clauses 5.2 and 6.2 are not simply result-driven. They are also driven by process. They require a process to be followed which, where appropriate, will provide a particular result (a “reasonable adjustment”). They do not merely require the particular result.
139 In contrast, insofar as s 5(2) requires a “reasonable adjustment” to be made in order that less favourable treatment be avoided, it is purely result-driven. The process by which a “reasonable adjustment” is provided is of no concern to the operation of 5(2).
140 The discrimination case made by Dr Sklavos did not require the primary judge to consider whether any step, other than the making of a “reasonable adjustment” was required of the College. For the discrimination case, her Honour was not required to consider whether the College had met an obligation to consult of the kind imposed by clause 5.2 or 6.2. That is, to consult “about whether the disability affects [Dr Sklavos’] ability to participate in the courses or programs for which [Dr Sklavos] is enrolled and use the facilities or services provided by the [College]” (clause 5.2(2)(a)) or, to consult “about whether the disability affects [Dr Sklavos’] ability to participate in learning experiences of the course or program, or any relevant supplementary course or program” (clause 6.2(2)(a)). It is necessary in this respect to observe that the nature of the obligation to consult under the Disability Standards is addressed by clause 3.5 in the following terms:
3.5 Consulting the student
Before the education provider makes an adjustment for the student, the education provider must consult the student, or an associate of the student, about:
(a) whether the adjustment is reasonable; and
(b) the extent to which the adjustment would achieve the aim mentioned in paragraph 4.2(3)(b), 5.2(2)(b), 6.2(2)(b), 7.2(5)(b) or 7.2(6)(b) in relation to the student; and
(c) whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student.
141 Nor, in addressing the discrimination case was the primary judge required to determine whether obligations to consider and decide in relation to adjustments of the kind imposed by clause 5.2 or 6.2 of the Disability Standards had been met by the College. Clause 5.2(2)(b) requires that in the light of the consultation, the education provider must “decide whether an adjustment is necessary 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”. A similar obligation is imposed by clause 6.2(2)(b). The considerations which must be taken into account in making a decision of the kind identified in those paragraphs are addressed in clause 3.6 of the Disability Standards as follows:
3.6 Deciding on an adjustment to be made
In deciding whether to make a particular reasonable adjustment for a student, the education provider must:
(a) assess whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student; and
(b) assess whether the adjustment may need to be changed over the period of a student’s education or training.
142 Those matters demonstrate a disparity of some significance between the issues which were determined by the primary judge in relation to Dr Sklavos’ discrimination case and the issues which needed to be determined on Dr Sklavos’ disability standards case. But there are further matters which support the contention that Dr Sklavos’ disability standards case needed to be addressed discretely.
143 The definition of the phrase “reasonable adjustment” in the DDA is different to that provided by the Disability Standards. In the case of the DDA, a “reasonable adjustment” is an adjustment other than an adjustment that would impose unjustifiable hardship on the person required to make the adjustment (s 4). A non-exhaustive list of circumstances that must be taken into account in determining whether a hardship constitutes an “unjustifiable hardship” is specified by s 11(1). The word “adjustment” is not defined by the DDA.
144 In the case of the Disability Standards, the word “adjustment” is defined in clause 3.3. The meaning of the phrase “reasonable adjustments” is given in clause 3.4(1) which states that “an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected”. Clause 3.4(2) sets out a non-exhaustive list of the circumstances that should be taken into account in assessing whether a particular adjustment for a student is reasonable. Whether unjustifiable hardship may be imposed on the person required to make the adjustment is not a matter which, at least directly, is relevant to the definition of “reasonable adjustment”. Under the Disability Standards, clause 10.2 deals with unjustifiable hardship of complying with the Disability Standards (without identifying the matters which need to be taken into account), by providing that the Disability Standards “do not render it unlawful for an education provider to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on the provider” (clause 10.2(2)). It is relevant to note clause 10.2(3) which is in the following terms:
(3) The provider must comply with the Standards to the maximum extent not involving unjustifiable hardship.
145 In the context of the matters with which I am concerned, those definitional differences are not without some practical impact. In relation to the first adjustment contended for by Dr Sklavos in his direct discrimination case, the primary judge determined that the adjustment was not a “reasonable adjustment” because it would impose an unjustifiable hardship on the College (at [105]). Her Honour also determined that Adjustment One was not an adjustment within the meaning of that term in the DDA (at [125]). In relation to Adjustment Two, the primary judge was not satisfied that it was a “reasonable adjustment” because it would impose hardship on the College and members of the public (at [133]). In relation to Adjustment Three, the primary judge rejected that it was a “reasonable adjustment” on the same basis as for Adjustment One (at [153]).
146 In the written submissions made to the primary judge, Dr Sklavos specifically contended that the College had not met its consultation or consideration obligations under clause 5.2 and clause 6.2 of the Disability Standards. A submission was put that the College had not genuinely consulted with Dr Sklavos about reasonable adjustments. As to that, I am conscious of the content of [143] of the primary judge’s reasons where a similar submission dealing with similar subject matter but in a different context was dealt with. A submission was also put that no consultation at all was made with Dr Sklavos after Dr Sklavos withdrew from the 2012 examinations after his condition worsened.
147 Additionally, Dr Sklavos contended that the College had failed to comply with one or both of clauses 5.2(2)(c) and clause 6.2(2)(c). In that respect it was contended that the College had an obligation to identify the reasonable adjustment that was necessary. Dr Sklavos contended that although some adjustments had been identified by the College, an adjustment which was necessary but not identified by the College was the possibility of Dr Sklavos’ competency being assessed through workplace-based assessments. On the appeal, Dr Sklavos also contended that he put an argument to the primary judge that the College contravened its consideration obligations under clause 5.2(2)(b) and clause 6.2(2)(b). There is some support for that contention in the written submissions made to the primary judge although the submission there made is somewhat ambivalent.
148 Whilst I would infer that the primary judge rejected each of those submissions, with the possible exception of the first submission, why she did so is not sufficiently apparent from her Honour’s reasons. The first submission may have been inferentially addressed at [143] where, in a different context, the primary judge addressed the nature of the College’s engagement with Dr Sklavos about adjustments to be made for him in relation to sitting the final examinations.
149 There is force in Dr Sklavos’ contention that the Disability Standards upon which he relied imposed different obligations upon the College than those imposed by the operation of s 5(2) of the DDA and that, as a consequence, different issues were required to be determined in each case. Whilst the primary judge gave extensive reasons for dismissing the discrimination case, the reasons given for dismissing the Disability Standards case do not reveal an appreciation of the different issues there raised. Those differences were not insignificant. It may be possible to piece together the primary judge’s likely reasoning process on the discrete case raised on the Disability Standards but that would involve at least some supposition. As the Full Court emphasised in Carlisle Homes at [41], justice must be seen to be done. For that to be achieved an appeal court should be able to ascertain the reasoning upon which the primary decision was founded with reasonable certainty. Unfortunately, and with respect to the primary judge, I am unable to reach that standard of satisfaction from the reasons given by her Honour. In large part that is because the reasons fail to demonstrate that the nature of Dr Sklavo's Disability Standards case and the difference between it and the discrimination case was fully appreciated.
150 Appeal ground 4(a) is established. I respectfully consider that the primary judge erred by failing to give sufficient reasons as to why the disability standards case was rejected. I need not address appeal ground 4(b) which challenges the primary judge’s findings that the Disability Standards were not contravened.
Remedies
151 Relying upon the asserted contraventions of the DDA by the College, Dr Sklavos sought a range of remedies including an order that he be elected as a Fellow of the College. The primary judge rejected each of the remedies sought. The only issue raised on the appeal is the primary judge’s refusal to award compensation. At [216] the primary judge stated that even if unlawful discrimination had occurred, she was not satisfied that it was appropriate to order any compensation under s 46PO(4)(d) of the AHRC Act. The primary judge went on to say this:
This is because, consistent with my reasoning below in relation to damages generally, I do not consider that it has been proved that Dr Sklavos has or will suffer any loss or damage caused by the conduct of the College in contravention of any legal obligation to Dr Sklavos.
152 The reasoning about “damages generally” to which the primary judge referred is set out at [427]–[440]. Given the primary judge’s liability findings under the DDA, it was strictly unnecessary for her Honour to have dealt with the issue of compensation. But her Honour did so on the usual basis that, if she was found to be wrong on liability, her findings as to loss would be available on any redetermination or remittal. Given the limited remittal which I would intend to make and given that I have heard full argument on the challenges made to the primary judge’s findings on whether Dr Sklavos is entitled to compensation if the College’s conduct was unlawful, in the interests of the finality of this litigation it is appropriate that those challenges be addressed.
153 At [428] the primary judge expressed the conclusion that no loss had been proved by Dr Sklavos. Thereafter, the primary judge explained why she had come to that conclusion.
154 At [429], the primary judge acknowledged that Dr Sklavos’ claim to damages had to be assessed as a claim based on the loss of a chance as, any assessment which treated as certain that Dr Sklavos would (but for the unlawful conduct) have been elected as a Fellow of the College, was misconceived. Her Honour then said this:
Given his performance in the 2010 clinical examinations, which was before he had developed his specific phobia, his chance of satisfying the College of his competence to practice (by whatever method might have been theoretically possible) could not be rated highly.
155 The primary judge then turned to consider the evidence relied upon by Dr Sklavos to establish his loss. Dr Sklavos led forensic accounting evidence of the difference between his earnings capacity as a dermatologist and his income and earnings as a general practitioner working as a locum. To establish what he could have earned as a dermatologist, Dr Sklavos relied upon evidence of the earnings of a number of established dermatologists.
156 Given the difficulties that Dr Sklavos had experienced, the primary judge doubted that Dr Sklavos would develop a practice as successful as those of the selected dermatologists he relied upon. In that regard, the primary judge concluded that Dr Sklavos “had some, but not a great, chance of developing a comparable practice” (at [430]).
157 The next two paragraphs of the reasons ([431]–[432]) are of more importance. Here, her Honour dealt with the other side of the comparison put forward by Dr Sklavos, namely, what he would likely have earned and likely will earn as a general practitioner. In that respect, as her Honour recorded at [431], the only evidence tendered by Dr Sklavos was evidence of what he had earned over July to September 2014 working full-time as a locum general practitioner. Her Honour reasoned that the income Dr Sklavos had earned as a locum general practitioner working in somebody else’s practice was not indicative of what Dr Sklavos would likely earn as a general practitioner. That was so, because consistent with Dr Sklavos’ contention that he was hard-working, dedicated and entrepreneurial, the primary judge held that he would not be content to spend the rest of his working life on “short stints as a locum general practitioner in other practices” (at [431]). In short, the primary judge held that, for the purposes of proving any loss of earnings, the income streams to be compared were those of a dermatologist on the one hand and a general medical practitioner in his or her own practice on the other.
158 Her Honour then said this (at [432]; emphasis added):
The fact that Dr Sklavos is not a vocationally registered general practitioner (which allows higher Medicare rebates to be claimed for certain items) does not mean that he would not be able to establish a general practice about which he could be as hard-working, dedicated and entrepreneurial as he says he would have been in respect of the dermatological practice he said he would have established. Yet there is no evidence about what a hard-working, dedicated and entrepreneurial general practitioner (vocationally registered or not) might earn throughout a career. As such, the actual future earnings side of the ledger is not the subject of any reliable evidence, making it impossible to assess loss. This is not a case where an assessment can be made doing the best that can be done. One side of the ledger is simply unreliable and unrealistic, leaving the quantification of loss unknown. For all I know there may be no loss at all. A hard-working, dedicated and entrepreneurial general practitioner may have less, the same or even a greater earning potential than a dermatologist. These are matters for proof. What I can say is that I do not accept that evidence of what Dr Sklavos in fact earned in his best three month period as a locum general practitioner while he was involved in this litigation represents a reasonable view of his earning potential as a general practitioner. The duty to do the best I can in assessing damages does not extend to speculating about whether any loss has been suffered at all when it was within the power of Dr Sklavos to call such evidence. Some loss at least must be proved by evidence before the court may then try to do the best it can to assess the loss. Contrary to the submissions for Dr Sklavos, it was not up to the College to call such evidence.
159 It is also necessary to set out the following findings made by the primary judge at [434]:
… It would be open to Dr Sklavos to develop his own general practice (an option available to him since he practically ceased training at the College) if he chooses to do so, bringing to bear the dedication and entrepreneurial skills he says he would have applied to a dermatological practice if he chooses to do so. There would be no rational reason to assess damages on any other basis.
160 The reasons referred to are sufficient to address the challenges raised by particulars (a), (b) and (c) of appeal ground 5.
161 The first of those particulars challenges the primary judge’s finding that if Dr Sklavos lost a chance, the chance “could not be rated highly”. Particular (b) challenges the primary judge’s finding that Dr Sklavos had some but not a great chance of developing a practice as successful as the selected dermatologists. Those findings were potentially relevant to the quantification of loss if any loss had been proved. As the primary judge held that no loss had been proved she made no attempt to quantify it. The impugned findings were really no more than observations about difficulties that may have been encountered by Dr Sklavos in relation to a process that the primary judge did not, in substance, embark upon. I need not be further distracted by those challenges. It is the finding that no loss at all was proved (at [428]-[432]) which Dr Sklavos’ appeal must succeed on before issues about quantification become relevant.
162 That finding is the subject of appeal ground 5(c) in the following terms:
c) The primary judge's findings:
i. that the Appellant's future earnings as a general practitioner were not the subject of any reliable evidence (Decision,[432]); and
ii. that the Appellant's best period of earnings as a locum general practitioner up to hearing did not represent a reasonable view of his earnings potential as a general practitioner (Decision,[432], [434]).
were not available on the evidence. The correct finding was that the evidence of the Appellant's actual earnings as a general practitioner was the best available, or in the alternative sufficient, evidence of his earning capacity as a consequence of the unlawful discrimination to which he had been subjected.
163 Dr Sklavos contended that having regard to the whole of the evidence, the correct finding was that his actual earnings as a locum general practitioner was the best available, or in the alternative, sufficient evidence of his future earnings capacity as a general practitioner. The submission was based on the proposition that Dr Sklavos’ actual earnings as a locum general practitioner should have been taken as representing his ongoing earnings capacity as a general practitioner.
164 The submission made referred to evidence led by Dr Sklavos of his lack of desire to work as a general practitioner and the steps necessary for him to become vocationally registered as such. It was contended that in light of that evidence it was not open to the primary judge to rely upon the lack of evidence “about what a hard-working, dedicated and entrepreneurial general practitioner…might earn” (at [432]). That aspect of the submission must be rejected. First, the evidence that Dr Sklavos referred to was not accepted by the primary judge (at [434]) and that finding is not in contest. Second, the finding that there was no reliable evidence of what Dr Sklavos would likely earn as a general practitioner was not based on Dr Sklavos becoming a vocationally registered general practitioner. The full quotation of her Honour’s finding (at [432]) was of “no evidence about what a hard-working, dedicated and entrepreneurial general practitioner (vocationally registered or not) might earn” (emphasis added).
165 The contention that Dr Sklavos’s earnings as a locum were “the best available” evidence is untenable. The evidence that should have been called but was not, was of what a hard-working and dedicated general practitioner operating a medical practice would likely earn over the course of a career. There is no basis for the contention that evidence of that kind was unavailable.
166 The contention that the evidence called was “sufficient” is also unpersuasive. I can see no basis for thinking that, without more, knowledge of what a locum general practitioner earns is a reliable indicator of the income of an entrepreneurial general practitioner operating a medical practice. The capacity of a locum to earn income will depend on very different factors than those of a medical practitioner operating his or her own practice. No submission was made as to why the primary judge was wrong to conclude that evidence of the former should not be regarded as a reliable indicator of the latter.
167 Dr Sklavos contended that an absence of precise evidence should not necessarily result in a finding of no loss. So much may be accepted. As Mason CJ and Dawson J said in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83, mere difficulty in estimating damages does not relieve a court from the responsibility of estimating damages as best it can. Sometimes, of necessity, that may involve guesswork rather than estimation. But as their Honours went on to say, “[w]here precise evidence is not available the Court must do the best it can” (emphasis added). In Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 at [37]–[38], Hayne J (with whom Gleeson CJ, McHugh and Kirby JJ agreed) relevantly observed that it is necessary to distinguish between a case where an applicant cannot adduce precise evidence and a case in which an applicant has not adduced such evidence (footnotes omitted):
[37] Placer undoubtedly bore the burden of proving not only that it had suffered damage as a result of Thiess Contractors' breach of contract, but also the amount of the loss it had sustained. It goes without saying that it had to prove these matters on the balance of probabilities and with as much precision as the subject matter reasonably permitted.
[38] It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence. In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed. References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind …
Those observations were followed in Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 at [36] (Black CJ and Jacobson J) and at [101] (Rares J).
168 Furthermore, as Allsop CJ, Middleton and Foster JJ observed in TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361, the obligation on a court to do the best it can on the evidence before it depends on the circumstances of the case. At [164] their Honours said this:
… As Pincus J said in Schindler at 319, the evidence brought by someone with an onus may be so inadequate in its totality, when the whole context is examined, that there can be said to be no rational foundation for any proper estimate. In other cases, the court is required to make its best estimate on the materials provided. The proper approach will, in any given case, be an evaluative one influenced by such considerations as the nature of the question, including its amenability to precise proof or assessment, the availability and control of evidence, and the onus of proof. Considerations such as the assessment of evidence according to the power of the party to adduce it will be important to such an evaluation: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970; Cullen v Welsbach Light Company of Australasia Ltd (1907) 4 CLR 990 at 1013-1014; Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371-372; Parker v Paton (1941) 41 SR (NSW) 237 at 243; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 67; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [36].
169 This was a case where the assessment of damages required a comparison of two potential income streams – that of a hard-working, dedicated and entrepreneurial dermatologist on the one hand and that of a hard-working, dedicated, entrepreneurial general medical practitioner operating his or her own practice, on the other. The nature of the assessment required was, relatively speaking, not particularly difficult. If reliable evidence about the two income streams had been provided, although some estimation would undoubtedly have been necessary, an assessment could have been made. But like the situation referred to in Schindler, which the Full Court in TCL endorsed, in this case the evidence called by Dr Sklavos (who bore the burden of proving damage) failed to provide a rational foundation for any proper estimate. If the correct income streams had been identified by Dr Sklavos, a rational foundation could have been readily established. This was not a case where the applicant could not adduce precise evidence but a case where, although apparently able to do so, the applicant did not adduce such evidence.
170 With respect, I consider that the primary judge was right to say (at [432]) that her duty to do the best she could in assessing damages did not extend to speculating about whether any loss had been suffered at all when it was within the power of Dr Sklavos to call such evidence. Her Honour was also correct to say that at least some loss must be proved before the Court is obliged to do the best it can to assess the loss: Aristocrat at [35] (Black CJ, Jacobson J). The primary judge was correct to conclude that given that “one side of the ledger is simply unreliable and unrealistic” there was no basis for finding that Dr Sklavos had incurred any loss at all.
171 For completeness I should also say that, in oral submissions, Senior Counsel for Dr Sklavos contended that the primary judge’s discussion of damages entirely ignored that “there was proved and precisely quantified loss up to the date of trial”. It was said that the evidence had quantified the after tax loss as being $349,502. That submission (not reflected in Dr Sklavos’ grounds of appeal) suggested that the comparative exercise which the primary judge was asked to make was confined to addressing loss of future earnings only. That suggestion is inconsistent with Dr Sklavos’ written submissions on the appeal where it was said that the comparison had been put forward “in support of [Dr Sklavos’] claim of loss of income up to hearing and loss of future earnings capacity”. The primary judge’s approach seems to have been consistent with the way in which Dr Sklavos’ written submission identified the nature of his claim. In particular, at [434] the primary judge observed that developing his own general practice was an option available to Dr Sklavos since about the time he ceased training at the College. On that basis and as a matter of logic, a proper comparison of the competing income streams should have commenced from when Dr Sklavos asserted that he should have been made a Fellow.
172 There are three further grounds of appeal which seem to be related to Dr Sklavos’ challenge to the primary judge’s assessment of loss of income. Two of those grounds (particulars (f) and (g)) deal with findings made by the primary judge in relation to whether Dr Sklavos was competent to practice as a dermatologist from 2012. No submissions were made by Dr Sklavos in support of those grounds. In any event, given my conclusion that the primary judge was correct to hold that Dr Sklavos had failed to prove any loss, it is unnecessary to address them.
173 A further ground (particular (d)) raised the issue of whether an award of compensation under s 46PO(4)(d) of the AHRC Act was subject to Part 2 of the Civil Liability Act 2002 (NSW). In so far as Dr Sklavos contended that the primary judge had made a finding on that issue, she did not. At [438] her Honour concluded that “it is not necessary to resolve the question of whether an order for compensation under s 46PO(4)(d) of the AHRC Act may also be, in whole or part, … an award of damages within the meaning of ss 5A and 11A of the Civil Liability Act”.
174 Lastly, by appeal particular (e), Dr Sklavos contended that the primary judge erroneously held that he was not entitled to general damages. The primary judge dealt with the question of whether the pain, distress and humiliation suffered by Dr Sklavos was compensable at [440]. Relevantly, the primary judge said this (emphasis added):
The College’s refusal to elect Dr Sklavos as a Fellow in 2012 based on his qualifications and experience was appropriate based on the information available to it and in all of the circumstances. The College’s refusal to waive its requirement that Dr Sklavos pass the examinations was not discriminatory or otherwise unlawful. Nor was its response to his request for adjustments to be made to the examinations given his specific phobia. I have no doubt that all of these matters caused Dr Sklavos significant distress, but the distress is not compensable by the College merely because it is his perceptions of the interactions with the College which have resulted in the distress.
175 I consider that there is force in Dr Skalvos’ contention that the primary judge rejected his claim to general damages on the basis that her Honour rejected his claims that the College had acted unlawfully. In other words, the primary judge did not determine whether Dr Sklavos was entitled to general damages if the College’s conduct was unlawful. In view of the relief I would grant in relation to Dr Sklavos’ Disability Standards claim, that question may need to be addressed on remittal. I need say no more about it here.
relief
176 I have rejected each of Dr Sklavos’ grounds of appeal other than ground 4. To that extent the appeal should be dismissed. I have concluded that the primary judge erred by failing to give adequate reasons for rejecting Dr Sklavos’ claim that the College contravened s 32 of the DDA by breaching clauses 5.2 and 6.2 of the Disability Standards. In the absence of adequate reasons the findings made by the primary judge at [211] of her Honour’s reasons for judgment should be set aside. Dr Sklavos’ appeal should be allowed in part. The order made by the primary judge dismissing Dr Sklavos’ application should be set aside in so far as that order dismissed the cause of action asserting the contraventions of s 32 of the DDA specified at [93]–[104] of Dr Sklavos’ Further Amended Statement of Claim.
177 Pursuant to the power conferred by s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), I would remit the proceeding to the primary judge for the further hearing and determination of Dr Sklavos’ claim that the College contravened s 32 of the DDA. As to the nature of a “further hearing” I respectfully agree with the observations of Besanko and Robertson JJ in Fernando v Commonwealth of Australia (2014) 231 FCR 251 at [51]–[53], where the following observations made by Finkelstein J in Community and Public Sector Union v Telstra Corporation Limited (No 2) (2001) 112 FCR 324 at [17] were endorsed:
The better view appears to me to be that an order under s 28(1)(c) does not result in a new trial. Accordingly, the “further hearing” will be conducted on the basis that it is a continuation of the first trial, where the parties can only mend their hand or change course in accordance with well known rules.
178 In those circumstances, I would see no need to make directions as to the conduct of the further hearing. I would regard that a matter for the primary judge to resolve in accordance with the principles to which I have just referred.
I certify that the preceding one hundred and seventy eight (178) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg |
Associate:
GRIFFITHS J:
179 I have had the considerable advantage of reading the draft reasons of Bromberg J, with which I respectfully agree with one exception. The exception relates to ground 4 of the further amended notice of appeal. This ground has two parts. The first part (ground 4(a)) raises a claim that the primary judge gave inadequate reasons for rejecting Dr Sklavos’s claims that the College had contravened the Disability Standards for Education 2005 (the Disability Standards), and thereby contravened s 32 of the Disability Discrimination Act 1992 (Cth) (the Act). The second part of ground 4 involves claims that the primary judge erroneously found that there were no contraventions of relevant provisions of the Disability Standards (ground 4(b)-(d)). It is convenient to address these parts of ground 4 separately.
Failure to provide sufficient reasons (ground 4(a))
180 The relevant provisions of the Disability Standards and the background facts are set out in Bromberg J’s reasons for judgment. His Honour has also helpfully set out the relevant legal principles. In my respectful view it is important to note the emphasis which the case law places on the proposition that the adequacy of reasons will depend on the circumstances of the particular case. More specific propositions, such as those set out in Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31(Carlisle Homes) at [43], to which Bromberg J refers in [127], necessarily reflect the particular circumstances of that case. The “three fundamental elements” which were identified and given prominence in Carlisle Homes reflect the fact that the issue of the sufficiency of the trial judge’s reasons in that case turned on a claim that the trial judge had ignored a strong body of evidence. There is no comparable claim here. Dr Sklavos relied on the same evidence in respect of his claims relating to the Disability Standards as he did in his claims concerning direct and indirect discrimination. Application of the three fundamental elements identified in Carlisle Homes must take into account all the relevant circumstances of a case, including the pleadings and how the case was presented.
181 An important feature of the proceedings before the primary judge here was the extensive overlap between Dr Sklavos’s claims of direct and indirect discrimination and his claims regarding contraventions of the Disability Standards. I will return below to address the extent to which those claims, as pleaded and argued below, raised different issues and the significance of any such differences to the primary judge’s obligation to give sufficient reasons. It is evident, however, from the structure and content of the primary judge’s reasons, that she proceeded on the basis that her comprehensive reasons and findings which were adverse to Dr Sklavos in respect of his claims of discrimination were also determinative of his claims concerning the Disability Standards. This is evident from the terms of [211] of her Honour’s reasons for judgment which are set out in [122] of Bromberg J’s reasons for judgment but, for convenience, are now repeated (emphasis in original):
211 As to s 32 and the Disability Standards for Education 2005, the obligation in para 5.2(1) on which Dr Sklavos relied is to “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” (emphasis added). I would not find any breach of this standard. Further, para 6.2(1) requires that an 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” (emphasis added). Again, I would not find any breach of this standard. Consistent with my reasons above, I do not accept that the College otherwise failed to consult Dr Sklavos or failed to make such adjustments as it reasonably could in the circumstances. As such, I do not accept that the College breached paras 5.2 or 6.2 of the Disability Standards for Education 2005. I do not need to resolve whether the College was an educational authority as well as an educational institution.
182 It may well be that the primary judge could have used clearer language but when that paragraph is read fairly and as a whole I consider that her Honour was saying that Dr Sklavos’s Disability Standards case should be dismissed for the same reasons given by her Honour in rejecting his discrimination claims. This conclusion is reinforced by the fact that [211] of her Honour’s reasons are in a section of the judgment starting at [206], which is headed “Consequences”. This section appears after her Honour’s extensive consideration and rejection of Dr Sklavos’s claims of direct and indirect discrimination. The primary judge plainly considered that her reasons for rejecting those claims were relevant to, and dispositive of, some of Dr Sklavos’s other claims, including those in respect of the Disability Standards. That view of [211] is further reinforced by what her Honour said in [206] (emphasis added):
Because neither s 5 not (sic) s 6 of the Disability Discrimination Act are engaged there was and is no discrimination against Dr Sklavos for the purposes of the Act. It follows that the unlawful discrimination claims founded on Pt 2 of the Act cannot be sustained. Insofar it is necessary to say more, I confine myself to the following observations.
183 In other words, having regard to her Honour’s comprehensive reasons for rejecting the discrimination claims, which her Honour regarded as affecting some other claims by Dr Sklavos, she needed to say only little about those other claims.
184 Dr Sklavos’s claim that the primary judge failed to provide sufficient reasons focused on three aspects of his complaints concerning the College’s compliance with the Disability Standards:
(1) failure to take reasonable steps;
(2) failure to consult; and
(3) failure to make reasonable adjustments.
185 Before addressing each of those matters, it is desirable to summarise how these three matters were pleaded and presented at the trial by Dr Sklavos.
186 The alleged contraventions of the Disability Standards were pleaded in [93] to [104] of the further amended statement of claim. In summary, the claims were as follows:
(1) in breach of cl 5.2(1) of the Disability Standards, the College failed to take reasonable steps to ensure that Dr Sklavos was able to participate in its training program on the same basis as a student without a disability, and without experiencing discrimination;
(2) in breach of cl 6.2(1), the College failed to take reasonable steps to ensure that his training program was designed in such a way that Dr Sklavos was able to participate in the assessment and certification requirements of the program on the same basis as a student without a disability, and without experiencing discrimination;
(3) the College breached cll 5.2(2) and 6.2(2) because:
(a) from 7 February 2012 onwards, the College failed to consult with Dr Sklavos about whether his disability affected his ability to participate in the training program, or in the assessment and certification requirements of the College’s training program;
(b) from 7 February 2012 onwards, the College failed in the light of any such consultation to decide whether an adjustment was necessary to ensure that Dr Sklavos was able to participate in the training program, or in the assessment and certification requirements of the College’s training program, on the same basis as a trainee of the College without a disability;
(c) an adjustment was necessary to ensure that Dr Sklavos was able to participate in the training program, or in its assessment and certification requirements, on the same basis as a trainee of the College without a disability and it was possible to identify such an adjustment which would be a “reasonable adjustment” for the purpose of the Disability Standards. It was pleaded that a reasonable adjustment involved:
(i) Dr Sklavos being assessed for eligibility for election to membership of the College by a method that did not involve the use of examinations conducted by the College; or
(ii) that the College’s Fellowship examinations insofar as they applied to Dr Sklavos be modified as set out in or by reference to Dr Sklavos’s letter to Dr Reid dated 5 April 2012; or
(iii) that he be assessed using a combination of workplace-based assessments that would allow for an assessment of his competence to practice, and conducted in a manner that would minimise the symptoms of his disability; and
(4) the College failed to make a reasonable adjustment as pleaded in (c) above.
187 The pleading raised no claim that there had been a contravention of either cll 5.2(3) or 6.2(3) of the Disability Standards, both of which oblige a provider to “repeat the process set out in subsection 2 as necessary to allow for the changing needs of the student over time”.
188 Turning now to how this aspect of Dr Sklavos’s case was run below, the material before the Full Court was limited. Apart from what can reasonably be deduced from the primary judge’s reasons for judgment the only relevant material before the Full Court which indicates how this particular part of the trial was conducted are extracts from Dr Sklavos’s written submissions dated 9 November 2015 (pages 41-45 in CRI-109). Dr Sklavos’s claim that the College had contravened the Disability Standards and thereby contravened s 32 of the Act were summarised in [161] of his written outline below:
[161] Dr Sklavos’s case is that he was a student with a disability who was not able to participate in the College’s training program, in particular the final assessment requirements of that program, ‘on the same basis as a student without a disability’. The College failed to comply with the obligations imposed on it by the Standards to take reasonable steps to ensure that Dr Sklavos was able to so participate (Standards cl 5.2(1)), and to take reasonable steps to ensure that the final assessment component of its training program was designed in such a way that Dr Sklavos was able to so participate (Standards cl 6.2(1)). In addition, the College failed to consult Dr Sklavos or any associate of Dr Sklavos as to whether his disability affected his ability to participate in the Fellowship examination; failed to take his disability into account in deciding whether an adjustment was necessary; and failed to make reasonable adjustments so that Dr Sklavos could participate in the final assessment component of its training program on the same basis as a student without his disability. Accordingly, the College contravened cll 5.2 and 6.2 of the Standards.
189 The submissions below drew attention to cll 2.2(3), 3.4-3.7 and 10.2 of the Disability Standards. Various principles concerning the obligation to consult which were said to emerge from the case law were then set out in [164] of Dr Sklavos’s submissions below. They included an acknowledgment by Dr Sklavos that cll 5.2(2) and 6.2(2) provided “for a process of consultation, consideration, and adjustment so that the requirements of cll 5.2(1) and 6.2(1) can be met…”. In other words, it was acknowledged that the provisions were related. The submission was then made that, having regard to the ordinary language of the provisions, cll 5.2(1) and 6.2(1) also operate as “a freestanding obligation to take reasonable steps to ensure that a student is able to participate (or that a course is designed so that a student is able to participate)… on the same basis as a student without a disability…”.
190 It was also submitted by Dr Sklavos below that the effect of cll 5.2(2)(c) and 6.2(2)(c) is that the Disability Standards “are not met if the education provider consults with the student but then wrongly decides that an adjustment is not necessary or that it is sufficient to make a less adjustment that does not allow the student to participate ‘on the same basis as a student without a disability’, provided that a reasonable adjustment that achieves that aim is available”.
191 In [169], a submission was made that the College had not genuinely consulted with Dr Sklavos about reasonable adjustments. Reference was made to the College’s rejection of Dr Sklavos’s application to be elected as a Fellow through a method that did not require assessment by examination. The following matters were then put:
(1) After the College offered to consider any “reasonable request” by Dr Sklavos for special conditions in the 2012 examinations, on 8 March 2012 Dr Sklavos made a request for certain adjustments to his examination arrangements.
(2) At the College’s request, Dr Sklavos then saw Dr de Saxe on 29 March 2012 and provided a copy of Dr de Saxe’s report to the College on 5 April 2012.
(3) At that point Dr Sklavos limited his request for certain adjustments to the minimum special considerations set out in that report.
(4) The extent of any consultation undertaken by the College was to receive material from him and Dr de Saxe.
192 It was submitted in [170] that, by its letter dated 3 May 2012, the College “does not appear to have made any determination as to whether adjustments were necessary or not” and that it failed to comply with one or both of cll 5.2(2)(c) and 6.2(2)(c) of the Disability Standards by not making a reasonable adjustment that could have been identified and that it was necessary to ensure that Dr Sklavos was able to participate on the same basis as a student without a disability.
193 It was stated in [172] of his written submissions that Dr Sklavos contended for the same reasonable adjustments in respect of his Disability Standards complaint as he did in his direct discrimination claim. He said that while some of those adjustments were identified at the relevant time, the possibility of assessment by means of workplace-based assessments was not and that the College’s obligation related to “identifiable, rather than identified, adjustments and the onus was on the College, as the note to cl 3.4(2) indicates, to undertake the necessary assessments to determine what adjustments were necessary”.
194 Finally, in [173] of his submissions below, Dr Sklavos acknowledged that initially he accepted the adjustments which were proposed by the College in its letter of 3 May 2012, but later withdrew from his exams after his condition worsened. He complained that the College had not, at any subsequent time, consulted with him or offered to make reasonable adjustments to permit him to participate in the course of training provided by the College on the same basis as a student without a disability.
195 I shall now address Dr Sklavos’s claims that the primary judge provided insufficient reasons in respect of each of these three matters.
(a) Reasonable steps
196 Justice Bromberg has set out some differences between the issues which the primary judge determined in respect of the discrimination case and the issues which arose for determination in respect of the alleged contravention of the Disability Standards (see [135] to [147] of his Honour’s reasons for judgment). There may be some differences between these issues, but that does not mean that, in order for the primary judge to discharge her obligation to provide adequate reasons, her Honour had explicitly to address all of them. In particular, for reasons which will be developed, her Honour was entitled to take account of how the Disability Standards case was pleaded and conducted on behalf of Dr Sklavos.
197 In [133] of his reasons for judgment Bromberg J states that the interactions between sub cll(1) and (2) of each of cll 5.2 and 6.2 were the subject of submissions made by Dr Sklavos before the primary judge and on the appeal and that the issue was not addressed in the reasons of the primary judge. In my respectful view, there was no requirement for her Honour to do so. As Bromberg J notes, the issues were not addressed in the written submissions of the College below. It is evident from the structure of [211] in her Honour’s reasons that she approached the matter on the basis as put by Dr Sklavos, namely that, although the obligations imposed by cll 5.2(1) and 6.2(1) were, in each case, related he submitted that they were also freestanding obligations. In [211], the primary judge set out the terms of both cll 5.2(1) and 6.2(1) and, in so doing, gave particular emphasis in both provisions to the word “reasonable” in the phrase “reasonable steps”. Her Honour then stated that she would not find any breach of either standard. Later in [211], the primary judge rejected Dr Sklavos’s claims that there had been a failure to consult (with implicit reference to cll 5.2(2) and 6.2(2), upon which Dr Sklavos relied, although it should be noted that no explicit submission was made by him that the obligation to consult was a “freestanding obligation”). Reading [211] as a whole and in the context of the lengthy reasons already provided by her Honour in dismissing Dr Sklavos’s direct and indirect discrimination cases, in which Dr Sklavos claimed that the College had failed to provide him with reasonable adjustments, it seems to me plain that her Honour was adopting, without repeating, the same reasons for rejecting the claims concerning the taking of reasonable steps. In my respectful view it was reasonably open to her Honour to adopt this course rather than add to what was already a very lengthy judgment which provided a comprehensive explanation why the primary judge did not accept Dr Sklavos’s claims. It is notable that Dr Sklavos acknowledged, in effect, that the obligations in cll 5.2(1) and 6.2(1) were related. In the absence of any challenge by the College to Dr Sklavos’s submission that the relevant obligations were related but also freestanding, the primary judge was not required to take any other course than that which she did. In my view, there is no relevant deficiency in her Honour’s reasons.
198 Justice Bromberg has pointed to other differences in the provisions relating to discrimination as opposed to the Disability Standards. First, for the discrimination case, her Honour was not required to consider whether the College had met the obligation to consult as imposed by cll 5.2(2) and 6.2(2) of the Disability Standards. I will address that matter below (see [202] to [208]).
199 Secondly, another suggested difference is that, in the discrimination case the primary judge was not obliged to give separate reasons addressing the issue whether the “consideration obligation” of the kind imposed by cll 5.2 and 6.2 of the Disability Standards had been met by the College, with particular reference to how those obligations are affected by cll 5.2(2)(b) and 6.2(2)(c) (the terms of which are set out in [132] of Bromberg J’s judgment). The essence of the consideration obligation which is imposed on an education provider under cll 5.2(2) and 6.2(2) is to decide, in the light of the requisite consultation with the student, whether an adjustment is necessary for the prescribed purposes. In addressing the discrimination case, her Honour carefully considered the steps taken by the College in consulting or engaging with Dr Sklavos about whether particular adjustments were necessary and reasonable in his case. Her Honour gave detailed reasons for rejecting Dr Sklavos’s claims that the College’s consultation and consideration in respect of the proposed adjustments was deficient (see [84] to [156] and [203]-[204]). In my respectful view it was open to her Honour to rely upon those reasons and findings in rejecting the comparable claims made by Dr Sklavos relating to the Disability Standards.
200 A third difference is said to relate to the different definitions of “reasonable adjustment” in the Act as opposed to the definitions in cll 3.3, 3.4(1), 3.4(2) and 10.2 of the Disability Standards. It is suggested that, in order to discharge the obligation to provide sufficient reasons, the primary judge had to address these differences. I respectfully disagree. In my view, her Honour was entitled, if not obliged, to write reasons which reflected the pleadings and the way in which the case was conducted below. On the materials before us, Dr Sklavos placed no explicit reliance on cl 3.3. There is, however, an express reference to cll 3.4 and 10.2 in [163(b) and (c)] respectively in his outline of written submissions. Dr Sklavos drew attention to the fact that cl 3.4 provides that, for the purposes of the Disability Standards an adjustment is “reasonable” in relation to a student with a disability if it balances the interests of all parties affected. It was noted that the provision requires that regard be had to all relevant circumstances. (There is a non-exhaustive list of matters in cl 3.4(2)). The submission highlighted the relevance of some particular circumstances to Dr Sklavos’s case, such as the views of the student, the effect of the adjustment on the student, the effect of the adjustment on the education provider, and the costs and benefits of making the adjustment. The submission emphasised that the determination of the reasonableness of an adjustment is a separate consideration that precedes any consideration of whether the adjustment might impose an unjustifiable hardship on the provider. Attention was then drawn to cl 10.2, which provides that it was not unlawful for an education provider to fail to comply with a requirement of the Disability Standards if, and to the extent that, compliance would impose unjustifiable hardship on the provider.
201 There is no explicit reference in [211], or elsewhere in the primary judge’s reasons for judgment, to either cll 3.4 or 10.2 of the Disability Standards. The primary judge provided extensive reasons, however, as to why she rejected each of the three categories of adjustments identified by Dr Sklavos in support of his discrimination claims (which are the same categories relied on by him in the Disability Standards case). Her Honour’s reasons for rejecting all three categories included a finding that each would impose unjustifiable hardship on either the College or, in the case of Adjustment Three, future patients of Dr Sklavos if he were to practice as a dermatologist without having passed the written examinations (see [105], [133] and [153] respectively of the primary judge’s reasons for judgment). Accordingly, even if it be the case, as Dr Sklavos submitted below, that the determination of whether a particular adjustment is reasonable for the purposes of cl 3.4 precedes any consideration of unjustifiable hardship under cl 10.2 of the Disability Standards, the primary judge’s findings of unjustifiable hardship provide a complete answer to the three reasonable adjustments raised by Dr Sklavos in his Disability Standards claims. In those circumstances it was unnecessary for her Honour to state any reasons with explicit reference to the matters in cl 3.4 because her findings of unjustifiable hardship trumped any consideration of those matters. Her Honour gave detailed reasons why all three categories of adjustments relied on by Dr Sklavos would impose unjustifiable hardship. She did not need to repeat those reasons in the section dealing with the Disability Standards.
(b) Failure to consult
202 As noted above, no explicit submission was made by Dr Sklavos that the obligations to consult imposed by cll 5.2(2) and 6.2(2) were “freestanding obligations” (in contrast with his submissions in respect of cll 5.2(1) and 6.2(1)). The primary judge made clear in [211] of her reasons that she rejected Dr Sklavos’s claim that the College had failed to consult with him and did so by explicit reference to the reasons she had given above. For the reasons which follow, I do not consider that this shorthand approach gave rise to a failure to provide sufficient reasons in respect of this matter.
203 As Bromberg J has observed, the primary judge may not have been required squarely to address the issue of consultation in the context of the discrimination case, but it is plain that she did so extensively. Her Honour’s reasons and findings on this subject are set out in [20], [92], [135] and [143] of the reasons for judgment. Those findings and reasons were relevant to her Honour’s consideration and rejection of Dr Sklavos’s claim of failure to consult as required by the Disability Standards. Dr Sklavos expressly acknowledged in [164(b)] of his written submissions below that the relevant provisions in the Disability Standards relating to consultation did not “require the consultation to take any particular form”.
204 The detailed consideration given by her Honour to the issue of consultation is reflected in [135] of her reasons for judgment which are directed to what Dr Sklavos described as “Adjustment Two” (i.e. adjustments to the examinations in 2012 as sought by Dr Sklavos in his letter dated 5 April 2012):
135 Through a series of communications, the College responded to Dr Sklavos’s request of 5 April 2012. For present purposes, a table provided for the College, which I consider to be accurate, can be used to compare what he had sought over time with what the College offered. The table is as follows:
No. | Specific adjustment requested in relation to the 2012 final Fellowship examinations | Date Offered | Nature of Adjustments Offered by the College |
1. | a) Waiver of the requirement for Dr Sklavos to re-sit the written Fellowship exams (or alternately the requirement to undertake and pass DMI and DMII); b) Increased time to complete the exams; c) No examiners from New South Wales used as an examiner and/or be present; and d) On 5 April 2012, in reliance on a report from Dr de Saxe dated 30 March 2012 (see particularly page 3 of that report), the Applicant sought "a reasonable explanation… of all the circumstances surrounding the 'clinic list incident'…" (as also set out on page 2 of the Applicant's 5 April 2012 letter); e) A medical practitioner nominated by, and representing, the Australian Medical Council (AMC) be present as an observer through the examination and while Dr Sklavos is being assessed and evaluated by the examiners; f) That the marking rubric or other document addressing the method or criteria for the assessment and evaluation of Dr Sklavos' performance be provided to the AMC before any examination, and if Dr Sklavos is assessed as not having passed any relevant examination, the result shall not be recorded, and shall have no effect, unless the AMC certifies that it is satisfied that the assessment validity, reliability and fairness is appropriate in the circumstances; and g) That Dr Sklavos be "chaperoned" by an impartial colleague from the AMC during viva voce examinations. | 3.5.12 | a) Fellowship Written Papers – for each written examination paper Dr Sklavos be provided with breaks, to a length of his choice, but not exceeding in total 25 minutes, a private room, and/or a personal invigilator. However, the total time spent on answering the examination questions will not exceed the total time of 3 hours, being that set for all candidates. Note: during these breaks Dr Sklavos was not to be permitted to leave the examination precinct without supervision. The invigilator was to be a non-Fellow of the College, agreed to in advance with the College and such agreement will not be unreasonably withheld. Should Dr Sklavos elect to have a private room and a personal invigilator, he would be required to meet the costs involved; b) The Histopathology and Dermoscopy Clinical Viva held on 21 July 2012 – Dr Sklavos be permitted to sit the viva in another State; c) Fellowship Clinical Vivas – requests for breaks between long case stations of greater than 30 minutes were to be considered and accommodated where possible, within the limitations of the examinations timetable; d) The College arranged for an independent medically-trained (specialist) observer (being a paediatrician based in Adelaide from another College) to sit through the Fellowship Clinical Vivas and attend the examiners' meetings; e) Dr Sklavos was provided with a list of examiners, and invited to object to any particular examiner; f) In the correspondence, the College also flagged: i. The possibility of arranging that, except for 1 of 2 examiners in one room (of 3 rooms in which long case vivas were to take place), that it could be arranged that NSW examiners would not examine Dr Sklavos in the long case vivas; and ii. Neither NSW examiner examining Dr Sklavos in the short case vivas; and one or both NSW examiners being absented from the examiners' meeting when the specific results of Dr Sklavos were to be discussed. |
2. | a) Seek breaks of up to 25 minutes in total during each of the written papers, perform the written examinations in a private room (subject to the costs being reasonable) and if necessary, a personal invigilator also | 16.5.12 | a) The College agreed to breaks of up to 25 minutes and the use of a private room and invigilator, such costs to be met by Dr Sklavos |
b) Sit the Histopathology and Dermoscopy Clinical Viva in another State | b) Dr Sklavos was offered to sit the Histopathology and Dermoscopy Clinical Viva in either Brisbane or Melbourne (as opposed to Sydney) | ||
c) That Dr Bob Corderoy and Dr Gayle Fischer not participate in the assessment of Dr Sklavos' clinical viva examinations, including being involved in the examiners' meeting while Dr Sklavos' results are being discussed | c) If Dr Sklavos qualified to sit the Fellowship Clinical Vivas, the College agreed that Dr Corderoy would: i. Not participate in Dr Sklavos' assessment during the clinical examination (noting that Dr Corderoy would not have a role in those in any event); ii. Not observe any of Dr Sklavos' viva stations; iii. Be absent from the examiners' meeting while Dr Sklavos' results were being discussed in unidentified and identified form. Note: Gayle Fischer had as at 2012 been replaced by Tim Elliott as Chief Examiner and was not to be participating in any trainee's assessment in relation to the 2012 Fellowship Examinations (and this was indicated to Dr Sklavos). | ||
d) To the extent to which it is also possible, that one or both of the NSW examiners not be involved in examining Dr Sklavos in the long case vivas, or in the short case vivas, and to be excluded from the examiners meeting while Dr Sklavos' results are being discussed | d) If Dr Sklavos qualified to sit the Fellowship Clinical Vivas, an independent medically-trained specialist observer from Adelaide, was to be present, and: i. Long Case vivas – 1 of 2 NSW examiners (in fact there was only one from NSW and one from the ACT, the latter being Dr Drummond) was to be absented from being involved in examining Dr Sklavos – this was Dr Duncan Stanford. The other doctor (Dr Drummond) was to examine Dr Sklavos in one of three long cases; ii. Short case vivas – Neither Dr Stanford, nor Dr Drummond were to examine Dr Sklavos in the short case vivas; iii. Examiners' meeting – Both NSW and ACT based examiners were to be absented when Dr Sklavos' results are being discussed, including as to Dr Sklavos' pass/fail status, however this did not extend to these examiners being excluded from the examiners' meeting during stages where the entire cohort's results were to be discussed or at the stage of de-identified candidate discussion. |
205 Moreover, in [143] of the primary judge’s reasons for judgment, her Honour found that there was no foundation in the evidence to support Dr Sklavos’s submission that the College’s proposed adjustments were insincere or mocking of him. Her Honour added that, merely because the College was sceptical about his disability, did not mean “that it failed to engage with Dr Sklavos assuming the existence of the disability and in good faith”. I consider that her Honour was entitled to rely upon that reasoning in rejecting Dr Sklavos’s claim of a failure to consult as required by the relevant provisions of the Disability Standards, including the specific claim made in [169] of his written submissions that the College did not “genuinely consult” with him about reasonable adjustments.
206 There are three other points to make regarding Dr Sklavos’s claim that the primary judge gave insufficient reasons for dismissing his contention that the College failed to comply with its consultation requirements under the Disability Standards. The first relates to his complaint that the primary judge did not address his submission that, after Dr Sklavos accepted the adjustments proposed by the College in its letter dated 3 May 2012 but later withdrew from exams after his condition worsened, the College did not consult with him further or offer to make any other reasonable adjustments to permit him to participate in training on the same basis as a student without a disability. Significantly, however, the primary judge made clear that there was nothing the College could have done which would have made any difference to Dr Sklavos’s position in 2012, other than waive its examination requirements altogether (see, for example, [143]). Her Honour also separately found that waiver of the examinations was not a reasonable adjustment, yet nothing less than a waiver would have placed Dr Sklavos in any different position in 2012 (see [151]).
207 Secondly, I do not consider that cl 5.2(3) of the Disability Standards is relevant (the terms of which are set out in [132] of Bromberg J’s reasons for judgment). That provision imposes an obligation upon a provider to “repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time”. The provision has no relevance here because Dr Sklavos did not complain that the College had contravened cl 5.2(3) in either the further amended statement of claim or in his written outline of submissions.
208 Thirdly, I do not consider that cl 3.5 of the Disability Standards (the terms of which are set out in [140] of Bromberg J’s reasons for judgment) has any relevance. In its terms, the obligation on an education provider to consult applied to the period before the education provider makes an adjustment. The subject matter of that consultation is then specified. In my respectful opinion, her Honour’s findings concerning the College’s consultation and engagement with Dr Sklavos which are the subject of the primary judge’s findings as described above meet the requirements of cl 3.5. Moreover, cl 3.5 could have no application to the College for the period after Dr Sklavos first accepted the adjustments proposed by the College in its letter dated 3 May 2012 and then later withdrew from the exams after his condition worsened. The College made no further adjustments after that period. Accordingly, cl 3.5 had no operation during that period.
(c) Failure to make reasonable adjustments
209 In stating in [211] of her reasons for judgment that she did not accept that the College had failed to make adjustments as it reasonably could in the circumstances, the primary judge again made express reference to her reasons above. This plainly is a reference to the comprehensive reasons given by her Honour in rejecting Dr Sklavos’s claims of a failure to make reasonable adjustments in the context of his discrimination case. It may be recalled that Dr Sklavos made clear in [172] of his written submissions that, for the purpose of his claims of a failure to make reasonable adjustments under cll 5.2(2)(c) and 6.2(2)(c) of the Disability Standards, he relied upon “the same reasonable adjustments that he relies upon in his direct discrimination claim”. In my respectful opinion, it was open to the primary judge to adopt the shorthand course which she did in rejecting this part of Dr Sklavos’s case. Dr Sklavos has not established that her Honour’s reasons on this matter are deficient in law.
210 For these reasons, ground 4(a) should be rejected.
Were the primary judge’s findings of no contravention of Disability Standards erroneous? (ground 4(b)-(d))
211 Shortly stated, these grounds allege that the primary judge erroneously found that the College had not contravened cll 5.2(1), 5.2(2), 6.2(1) and 6.2(2) of the Disability Standards. The relevant findings are set out in [211] of the primary judge’s reasons for judgment. As explained above, in making those findings, the primary judge adopted her reasons in the earlier part of the judgment for rejecting Dr Sklavos’s discrimination case. For the reasons I have given above, I consider that she was entitled to do so. The correctness of her Honour’s earlier reasons and findings are the subject of grounds 1, 2 and 3 of the further amended notice of appeal. Each of those grounds has been rejected for the reasons given by Bromberg J. Necessarily, therefore, grounds 4(b)-(d) must also be rejected.
Conclusion
212 For these reasons, the appeal should be dismissed and the appellant ordered to pay the respondent’s costs, as agreed or assessed, in accordance with the general principle that costs follow the outcome.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
Associate:
Dated: 16 August 2017
BROMWICH J:
213 I have had the substantial benefit of reading in draft the reasons of both Bromberg J and Griffiths J. I join with Griffiths J in agreeing with Bromberg J that appeal grounds 1 to 3 and ground 5 should fail. I have nothing to add to the reasons of Bromberg J for those conclusions. However, contrary to Bromberg J, I consider that appeal ground 4 should also fail, substantially for the reasons given by Griffiths J. I have only limited additional comments to make concerning ground 4 and the giving of reasons by the primary judge.
214 The trial before the primary judge occupied some nine hearing days, with the last submissions made on 1 December 2015. In a 180-page, 441-paragraph reserved judgment delivered on 2 March 2016, the primary judge gave detailed and careful consideration to the pleadings, legislation, authorities, evidence and submissions, including as to contract and negligence claims not pursued further on appeal. Her Honour made careful findings on the issues before her. It was desirable that repetition be kept to a minimum, despite clear overlaps between different aspects of the appellant’s case at trial. For the purposes of this appeal, that should be supported on appeal by reading the discrimination aspects of the primary judge’s reasons as a whole in order to ascertain whether the requirement for reasons has been met.
215 The subject matter of ground 4 was essentially that of taking reasonable steps to consult on the disability in question and, in light of that consultation, decide whether an adjustment was necessary to ensure equal participation by the appellant as compared to students without his proven disability. Only reasonable steps were required to be taken. A finding to that effect that this had taken place was fatal to this claim. For the additional reasons that follow, I consider that her Honour plainly made such a finding, in the context of, and having due regard to, her Honour’s preceding reasons.
216 The case brought by the appellant was framed beyond the direct terms of the Disability Discrimination Act 1992 (Cth) addressed by appeal grounds 1 to 3. It relied upon the separate obligation in s 32 to comply with [5.2(1)] and/or [6.2(1)] of the Disability Standards for Education 2005 (Cth) raised in appeal ground 4. The source and language of the obligation was different, but the substance and subject matter was not, at least in this case.
217 The topics of consultation, consideration and decision as to reasonable adjustment were canvassed at some length and in some detail by the primary judge in addressing the claims of direct and indirect discrimination made under ss 5 and 6 of the Disability Discrimination Act. This included considering the communications between the appellant and the College and the reasonably extensive efforts made to accommodate him by way of numerous adjustments, as set out in the table of adjustments reproduced in Griffiths J’s reasons. In the result, nothing less than the College being willing to abandon altogether the examination requirement for becoming qualified as a dermatologist would have sufficed for the appellant’s purposes, not least because he was, on the evidence, unable to sit any examination by reason of his disability. I specifically endorse the conclusion at first instance, and by Bromberg J on appeal, that continued reliance by the College, in part, upon compulsory examinations was lawful in the circumstances of this case.
218 The effective right of the College to continue to rely in part upon compulsory examinations informs the complaint made on appeal, which asserts that inadequate reasons were given by the primary judge for dismissing the collateral claim of a breach of s 32 of the Disability Discrimination Act by reason of failing to comply with the [5.2(1)] and/or [6.2(1)] obligations imposed by the Disability Standards. Viewed in the totality of the case for the appellant, those provisions of the Disability Standards were simply another means by which the appellant was seeking to insist upon not being required to meet the examination component of qualification to become a dermatologist. Viewed as such, although advanced as a separate claim with differences in language, the substance of what was being sought, and of what was required of the College, was extensively dealt with by the primary judge prior to [211] of her Honour’s reasons.
219 Reading [211] of the primary judge’s reasons in isolation might have led to the conclusion that the separate Disability Standards claim was not properly addressed. However on a fair reading of the reasons as a whole, as is required, there is no room to doubt why her Honour concluded that this claim also failed. There was ample consultation by the College with the appellant on the matters that he raised as to both participation standards and as to standards for curriculum development, accreditation and delivery. Clear decisions were made and communicated as to what the College was willing to do to accommodate the appellant’s disability by way of adjustment. This did not extend to abandoning the compulsory examination component. The College was entitled to draw the line short of that point by taking, as the primary judge found, the reasonable steps that it did and no more. There was no failure to comply with the Disability Standards as claimed, as her Honour’s reasons, read as a whole, make sufficiently clear.
220 I agree with Griffiths J that costs should follow the event and, accordingly, the appellant should pay the respondent’s costs of this appeal.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. |
Associate:
Dated: 16 August 2017
