REASONS FOR JUDGMENT

1                     Before the Court is an application by Joshua Turner, the applicant in the Federal Magistrates Court, for leave to appeal against an order made by a Federal Magistrate on 16 August 2010.  The order provided:

The application by the applicant for employees of the second respondent to be assessed as to their competency in Auslan is dismissed. 

2                     The application before the Federal Magistrates Court alleged that the respondents, the State of Victoria and Knoxbrooke Incorporated, had discriminated against the applicant in the provision of education by reason of his disabilities.  The applicant is deaf, has autism spectrum disorder and Down syndrome.  The Federal Magistrate conducted a directions hearing in the proceeding on 16 August 2010.  On that day, the first respondent sought an order that the applicant be assessed by various medical specialists in relation to his disabilities.  The applicant did not oppose that order and the Federal Magistrate made the order. 

3                     The applicant, on the same day, made an oral application to the Federal Magistrate for orders that the employees of the second respondent be assessed as to their competency in Auslan.  The second respondent, through its counsel, Mr Harrington, opposed this application, stating:

I now come to the submission with respect to an order that individuals from my client’s organization “be assessed”.  Your Honour, that’s a matter – in an adversarial system, that’s a matter for my client and its legal advisors to determine how it wishes to advance its case.  You, with respect, should not start ordering that respondents or witnesses of respondents get assessed for some reason.  It’s for the applicant who carries the onus to prove his claim.  We know generally how it’s put.  We say there needs to be experts assessing the applicant.  It really stretches the bow way too far to start making orders before contentions, before assessment of the applicant, that witnesses for the respondent be assessed.  That’s just too early, your Honour, in my respectful submission, and it may be something you should never do, but I might have to keep my powder dry on that submission until a later point in time. 

[Transcript – p 9-10]

4                     Counsel for the first respondent, Ms Benson, then followed with submissions as follows:

I support my learned friend, Mr Harrington’s, submissions and say the appropriate course is for the assessment of the applicant first.  Depending on that assessment, it may well not be necessary to go down the track of looking at his client’s capacity at all if it’s found, for example, that the applicant doesn’t need Auslan interpreters or has other modes of communication open to him, without wanting to prejudice what the assessment may find.  I agree with my learned friend, Mr Harrington, that any assessment of the workers at Knoxbrooke is entirely premature and may not be necessary at all, but should certainly be held over for a later date.  But the assessment of the applicant’s capacities and abilities is crucial and central to this matter going forward. 

[Transcript – p 9]

5                     The Federal Magistrate then said:

Thank you, Mr Kuek,.  I do accept that the applicant should be assessed as to his needs.  In order for the parties to understand the extent of your claim, we need to know the degree of assistance he needs, and that can only be established by assessment – some sort of formal assessment.  So I intend to make an order to that effect.  Now, I do not intend making an order that the Auslan people at the Knoxbrooke School be assessed.  That is a matter for you to establish that they’re not competent to give that instruction. (emphasis added)

[Transcript – p 10]

6                     The Federal Magistrate then made certain directions and returned to the question of this application later in the directions hearing.  After making the unopposed orders for the assessment of the applicant, the Federal Magistrate addressed the question of the application made by the applicant for the second respondent’s employees to be assessed in relation to their Auslan capacities.  The solicitor for the applicant asked the Federal Magistrate to state the reasons for the rejection of this application, and the Federal Magistrate replied:

Because it’s your burden to prove that these people are not competent.

[Transcript – p 17]

7                     There were then some exchanges between the Federal Magistrate and the solicitor for the applicant, which concluded with a further request for a statement of reasons. The Federal Magistrate responded as follows:

Well, the reason, if you need to prove your case, you’re saying Knoxbrooke is not providing people capable in Auslan.  That is a matter for you to prove. 

8                     The test for an application for leave to appeal is well known (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).  The applicant must show that the judgment is attended with such doubt to warrant it being reconsidered on appeal, and secondly, that substantial injustice would result if leave were refused, supposing the judgment to be wrong.  Furthermore, the order in question in this application is a discretionary order to which the principles in House v The King (1936) 55 CLR 499 at 504-5 apply. Where a discretionary judgment is in issue, it must appear that some error has been made in exercising the discretion.  There will be such error if the judge acts upon a wrong principle, if they allow extraneous or irrelevant matters to guide or affect them, if they mistake the facts or if they do not take into account some material consideration.  Further, where the result is unreasonable or plainly unjust, the Court may infer that there has been a failure to properly exercise the discretion. This inference is made even though the nature of the error might not be discoverable, but the Court is satisfied that a substantial wrong has occurred.

Was there an error in the exercise of discretion?

9                     The first consideration, therefore, is whether there is sufficient doubt about the correctness of the decision made by the Federal Magistrate by reference to the principles enunciated in House v The King.  The applicant contended that the Federal Magistrate rejected the application for the reason that the applicant carried the onus of proof in the proceeding and that factor was irrelevant to the determination of the application. 

10                  The second respondent, submitted that the Federal Magistrate was correct to hold that there was a principle that the Court would not assist the applicant to discharge the onus of proof which lay upon the applicant.

11                  Whether or not the applicant bears the onus of proof was not determinative, nor relevant, to the application for an order for assessment of the ability of the employees of the second respondent to communicate in Auslan.  If that were the basis upon which the Federal Magistrate made his decision, then it would demonstrate error.  If the Federal Magistrate intended that the fact that the applicant had to prove his case meant that he could never successfully ask for the Court to exercise its powers in a way which would assist his case, the decision would not be sustainable.  There is no such principle.  Indeed, the rules relating to discovery, interrogation, the taking of views, the examination of industrial processes, all illustrate the fact that the Court will act in order to ensure that all relevant evidence is produced before it.  The mere fact that an order sought by an applicant who bears the onus of proof would assist the applicant to move the case does not prevent the Court from making such an order.

12                  That is not to say that every application of this nature would be successful.  The power to make such orders requires the exercise of discretion and many factors will bear upon the question of whether it is appropriate in all the circumstances that the Court make such orders.  Indeed, in the present case, the Court would exercise caution before making orders against employees of the second respondent, who are not parties to the proceeding.  The Court could, however, make orders against the respondents requiring them to act, so far as they are able, to have their employees undergo the relevant assessment.  

13                  Counsel for the first respondent, Ms Benson, put the argument against leave to appeal in a different way.  She contended that, properly understood, the Federal Magistrate did not act upon a general principle that, because the applicant carried the onus of proof, he could not obtain the order sought.  She said that the short reasons given by the Federal Magistrate should be understood against the background of the way the proceedings unfolded.  She pointed to the fact that the submissions made to the Federal Magistrate all emphasised the prematurity of the application.  Neither counsel argued that there was a general principle precluding the applicant obtaining such an order.  Both argued that it was “just too early” or is “premature.”  Ms Benson explained that the application was made by the applicant orally on the day, that there was no written notice that the application would be made, that there were no written contentions, and that there was no in-depth examination of the issue.  The whole argument took place over little more than one page of the transcript.  The rejection of the submissions occurred immediately after they were made, and, so it was contended, should be read as correlating with the submissions.

14                  Ms Benson also explained that the timing of the application preceded the full articulation of the cases of the parties.  In other words, Ms Benson contended, the Federal Magistrate rejected, for the time being, the application made by the applicant, but did not do so for all time.  Viewed in that way, there was no error in the reasoning of the Federal Magistrate.  He made an assessment by reference to the stage at which the proceedings had reached and his decision should be understood as being made in the context of a case which was then not fully articulated. 

Substantial injustice

15                  The second consideration to be addressed on the application for leave to appeal is whether, if leave is refused, the orders of the Federal Magistrate would visit substantial injustice on the applicant, assuming the orders are incorrect.  If, by reliance on an irrelevant matter, the Federal Magistrate decided once and for all that the applicant could never obtain the orders he sought, such injustice would have been made out.  I do not accept the argument of counsel for the second respondent that the only injustice was to foreclose one form of proof of the applicant’s case.  That alone constitutes injustice of a type which would justify the grant of leave to appeal.  If, on the other hand, the Federal Magistrate determined the issue for the time being and did not preclude a further application at any later date, then no injustice is done to the applicant by the orders remaining in place.

16                  It is, therefore, central to the application for leave to appeal to determine just what the Federal Magistrate intended by his reasoning.  I am persuaded by Ms Benson’s description of the circumstances in the courtroom on the day.  The words used by the Federal Magistrate do not express that his order was meant to reject the application on the basis of prematurity.  They may even indicate the opposite.  However, seen in the context of the submissions which were made immediately beforehand, I read the reasons of the Federal Magistrate as rejecting the application simply on the day.  It is unfortunate that the reasoning was not more precisely expressed, but this is understandable in circumstances where the application was made orally and things moved fairly quickly.

17                  On this view of the reasoning of the Federal Magistrate, it will be open to the applicant to bring an application in relation to the assessment of the second respondent’s employees’ competency in Auslan at some later date.  That application will then need to be assessed on its merits in view of the state to which the proceeding has then developed.  The application could not be rejected on the ground that the applicant bears the onus of proof in the proceeding.  That would be an error because the processes of the Court are available to the applicant in order to assist him in discharging that onus.  For these reasons, the application for leave to appeal is dismissed. 

Associate:

Dated:         19 October 2010