FEDERAL COURT OF AUSTRALIA

Sievwright v State of Victoria [2013] FCA 964

THE COURT ORDERS THAT:

1.    Pursuant to r 16.21(1)(d) of the Federal Court Rules 2011,

(a)    paras 14, 14A, 15, 18, 20, 21, 28, 34, 51 and 55,

(b)    the references to paras 14 and 15 in the particulars to para 45,

(c)    the reference to para 15 in the particulars to para 61,

of the Further Amended Statement of Claim be struck out.

2.    The applicant have leave to re-plead, any such further pleading to be filed and served within 28 days.

3.    The parties file and serve written submissions as to the costs of the respondent’s Interlocutory Application dated 8 July 2013 according to the following timetable:

(a)    the respondent, within 7 days;

(b)    the applicant, within a further 7 days;

(c)    the respondent in reply, if necessary, within a further 7 days.

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

REASONS FOR JUDGMENT

1    Before the court is the respondent’s Interlocutory Application filed on 8 July 2013 to strike out the applicant’s Further Amended Statement of Claim filed on 19 June 2013 (to which, for the sake of simplicity, I shall refer as the Statement of Claim).

2    The proceeding was commenced on 29 October 2012 under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The applicant, Jade Sievwright, (who has recently attained her sixteenth year of age and whose mother is her litigation representative) alleges that the respondent, the State of Victoria, discriminated against her in education contrary to s 22 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”) and contravened disability standards contrary to s 32 of that Act. She alleges that, during the period to which her claims relate (August 2009 – August 2012: referred to in the Statement of Claim as “the relevant period”), she had disabilities described as “receptive language disorder/delay/difficulty”, “expressive language disorder/delay/difficulty”, “auditory processing problems” and “borderline IQ”.

3    The applicant alleges direct discrimination as defined in s 5 of the DD Act. That section provides as follows:

(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.

4    The unlawful conduct alleged by the applicant is that for which subs (2) and (2A) of s 22 of the DD Act provides:

(2)    It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:

(a)    by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

    (b)    by expelling the student; or

    (c)    by subjecting the student to any other detriment.

(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; or

   (b)    by accrediting curricula or training courses having such a content.

5    The applicant also alleges contraventions of s 32 of the DD Act, which makes it unlawful “to contravene a disability standard”.

6    By way of background, I would note that the applicant was also the applicant in Sievwright v State of Victoria [2012] FCA 118, decided by Marshall J on 21 February 2012. Like the present proceeding, that matter involved allegations that the respondent had contravened the DD Act in relation to the applicant’s education. In his reasons for decision, Marshall J noted that the claims with which he was dealing related to the period from January 2004 to 6 April 2009. In that period, the applicant had attended the Glen Katherine Primary School until the end of the second term in 2006, and had thereafter attended the Briar Hill Primary School (“Briar Hill”) until the second week of the first term in 2010.

7    In the present case, the applicant’s claims relate to the period from August 2009 to August 2012. It is said that the applicant at first attended Briar Hill, but that her mother withdrew her from that school at the end of 2009. The applicant was, in February 2010, enrolled in a private educational institution called the “Linda Mood-Bell School”, where she received speech pathology services and intensive literary and comprehension assistance for ten weeks. It seems from the Statement of Claim that the applicant did not return to Briar Hill at all, since it is alleged that she was at the Linda Mood-Bell School until mid-May 2010 and that she was “homeschooled” for the second half of 2010. The applicant was enrolled at Preston Girls Secondary College in October 2010, and remained so enrolled until the end of August 2012.

8    It will be convenient to commence by referring to the general structure of the Statement of Claim. It is organised according to parts which are headed as follows:

A.    Relationship between [the applicant] and the [r]espondent (paras 1 – 10)

B.    The [r]espondent’s knowledge (paras 11 – 13)

C.1    The Discrimination – Section 5(1) of the Act (paras 14 & 14A)

C.2    The Discrimination – Section 5(2) of the Act (paras 15 – 17)

D.    Facts supporting the [d]iscrimination (paras 18 – 61)

It is within Part A of the Statement of Claim that the applicant identifies the disabilities to which I have referred above. It is then said (in para 9) that these disabilities posed, for the applicant, a number of impediments, namely, difficulties in processing and absorbing language at the normal rate, immature written and spoken vocabulary, difficulties in comprehending written language, difficulties in formulating ideas into grammatical and meaningful sentences, difficulty hearing and processing what is said and the circumstance that the applicant does not learn at the same rate, or in the same manner, as others. Paragraph 10 of the Statement of Claim then provides as follows:

[The applicant’s] disabilities impeded her ability to be educated during the relevant period by the same methods as her peers, namely teaching methods not incorporating the reasonable adjustments set out in paragraph 13 hereof.

I refer to para 13 in the next paragraph below.

9    Within Part B, it is para 11 that is mostly responsive to the heading to the part. It is a lengthy paragraph of some five pages, and sets out a range of reports and assessments which are said to have put the respondent on notice of the applicant’s disabilities referred to in Part A, and other disabilities. Paragraph 13 sits under a subheading in Part B which reads “Reasonable Adjustments”. It is a significant aspect of the pleading for present purposes, and should be set out in full:

13.    [The applicant] required the following reasonable adjustments within the meaning of Section 5(2) of the Act:

(a)    a full-time aide for all of her academic subjects, such person(s) having the ability competently [sic] implement her Individual Education Plan, including a Speech/Language Program (the term “competent” having its ordinary dictionary meaning, namely: “having suitable or sufficient skill, knowledge, experience for some purpose; properly qualified”);

(b)    evidence based remedial programs in literacy and numeracy, monitored for their effectiveness pursuant to the [r]espondent’s own procedures and guidelines, and pursuant to the Disability Standards (the term “effective” having its ordinary dictionary meaning, namely: “adequate to accomplish a purpose, producing the intended or expected result”);

(c)    the teaching referred to in (a) and (b) above by way of a person formally trained:

(i)    to teach such programs, and;

(ii)    by professionals expert in language disorders and learning disabilities/disorders in order to effectively teach [the applicant] (the term “effective” having its ordinary dictionary meaning, namely: “adequate to accomplish a purpose, producing the intended or expected result”).

(d)    an Individual Education Plan developed by the processes set out in the [r]espondent’s own procedures and guidelines and in accordance with the Disability Standards;

(e)    speech pathology: a school-based speech pathology program, developed and regularly monitored, evaluated and reviewed by a speech pathologist, in respect of [the applicant’s] disabilities.

(the “reasonable adjustments”)

(f)    further, the [r]espondents [sic] failure to hold Student Support Group meetings and the failure to develop an Individual Learning Plan for [the applicant] precluded any opportunity to identify relevant reasonable adjustments for [the applicant’s] education including the identification of:

(i)    appropriate skills for an aide;

(ii)    content of remedial literacy and numeracy programs;

(iii)    teacher qualifications and training to implement remedial literacy and numeracy programs; and

(iv)    necessary speech pathology.

10    Paragraph 14, in Part C.1, is the first of two paragraphs of the Statement of Claim which invokes s 5(1) of the DD Act. It reads as follows:

14.    The [r]espondent has unlawfully discriminated against [the applicant] pursuant to s.5(1) of the Act during the relevant period in that, by reason of her Borderline IQ, it abandoned her formal education and in doing so, treated her less favourably than a person without a disability, in circumstances that are not materially different.

PARTICULARS

(a)    Victorian students without a Borderline IQ are provided with an education that:

(i)    is designed to support them in reaching their educational potential;

(ii)    is designed to teach them to read and write sufficiently to be able to meaningfully participate in community life, and to undertake tertiary education;

(iii)    is designed to teach them numeracy skills sufficient to enable them to meaningfully participate in community life, and to undertake tertiary education;

(iv)    for students without disabilities, follows the guidelines of the [r]espondent, including teaching of the Victorian Essential Learning Standards, and the provision of an education which is “world-class”, by which such students can emerge equipped with the knowledge and skills they need for the future;

(v)    for students with disabilities, follows the [r]espondent’s guidelines for the teaching of such students, as set out in the documents described in paragraph 28(j) hereof.

(b)    the [r]espondent failed to provide [the applicant] with an education as described in subparagraph [sic] (a)-(v) above during the relevant period, namely:

(i)    Failing to provide [the applicant] with an Individual Education Plan at all, and/or failing to provide [the applicant] with an Individual Education Plan following the guidelines of the [r]espondent;

(ii)    Failing to follow the [r]espondent’s guidelines, including failing to hold Student Support Group meetings for [the applicant] at all, and failing to hold Student Support Group meetings pursuant to such guidelines;

(iii)    Failing to follow the [r]espondent’s processes in subparagraphs (b)(i) and (b)(ii) above, having the consequences that:

A.    [The applicant’s] treating practitioners, and external treating practitioners with expertise in [the applicant’s] disabilities (Speech Pathologist, Educational Psychologist, Special Education Teacher) did not have the opportunity to form a Student Support Group, or to meet and develop an Individual Education Plan that met the guidelines of the [r]espondent;

B.    The Student Support Group as constituted in subparagraph A above did not have an opportunity to monitor and evaluate the effectiveness of any teaching strategies and programs put in place to support [the applicant]; and

C.    Without a formal Individual Education Plan developed, monitored and evaluated by a Student Support Group as constituted in subparagraph A above, no plan or program could be developed for [the applicant] education nor could any conclusions be drawn as to what were the most effective teaching strategies and programs for Jade.

(c)    The abandonment of [the applicant’s] formal education during the relevant period consisted of the [r]espondent’s decision:

(i)    that intensive support for [the applicant’s] education was not warranted due to her disability.

(ii)    that [the applicant] could not benefit from intensive support and assistance (the [a]pplicant refers to paragraph 28(a) hereof).

(iii)    through its Speech Pathologist Ms Kypuros, that speech therapy was not warranted as [the applicant’s] IQ was below 70, despite [the applicant’s] language impairments being severe (the Applicant refers to paragraphs 28(e) and (f) hereof).

(iv)    that [the applicant] would, for the most part, not take part in academic classes (the [a]pplicant refers to paragraph 51(f) hereof).

(d)    The less favourable treatment within the meaning of the Act is that students without a Borderline IQ/mild intellectual disability:

(i)    have the opportunity to be educated in a manner that enables them to reach their academic potential and to be equipped with the knowledge and skills they need for the future, and for them to participate in community life; and

(ii)    receive an education that aligns with the [r]espondent’s policies and guidelines, as set out in paragraph 14(a)-(iv) and the other documents referred to in paragraph 28(j) hereof.

(e)    [The applicant] was not provided with the opportunities set out in subparagraph 14(d) above, but instead received treatment that was less favourable, as described in subparagraph 14(c) above.

In para 14A, the applicant clarifies that the less favourable treatment alleged under s 5(1) is as set out in particulars (b), (c) and (d) of para 14, and that the way in which the respondent would treat a person without the relevant disabilities is as set out in particular (a) of that paragraph.

11    Within Part C.2, para 15 sets out the core of the applicant’s allegations of direct discrimination to the extent that s 5(2) of the DD Act is invoked. Paragraph 15 is as follows:

15.    Further, and alternatively, the [r]espondent has discriminated against [the applicant] pursuant to s.5(2) of the Act during the relevant period in that it has failed to make the reasonable adjustments, and has proposed not to make the reasonable adjustments, during the relevant period with the result that [the applicant] was treated less favourably than a person without her disabilities.

PARTICULARS

(a)    The failure to make the reasonable adjustments, and the proposal not to make the reasonable adjustments, are set out in paragraphs 35-57 inclusive hereof;

(b)    Students without [the applicant’s] disabilities do not need the reasonable adjustments required by her;

(c)    The failure to make the reasonable adjustments has had the effect that [the applicant] has been treated less favourably than students without her disabilities in circumstances that are not materially different.

(d)    The less favourable treatment is that:

(i)    the reasonable adjustments required, inter alia, adherence to the [r]espondent’s guidelines and procedures for students with disabilities; and -

(ii)    the [r]espondent’s guidelines and procedures were designed to enable informed decisions to develop, plan and guide the education of a student with a disability; and -

(iii)    the reasonable adjustments were recommended by education and/or health practitioners, and/or by [the applicant’s] mother, in order to give [the applicant] the best opportunity to meaningfully participate in her education, to gain an education, and to participate in community life;

(e)    The reasonable adjustments were not provided and as a result -

(i)    [the applicant’s] education progressed without formal planning, monitoring and evaluation;

(ii)    [the applicant] was unable to read or write past the level of a Grade 1/Grade 2 student by the time she left Preston (see paragraph 17 (c)(iii) hereof);

(iii)    [the applicant] suffered psychological distress throughout the relevant period (see paragraph 17(d) hereof);

(iv)    [the applicant] left Australia in 2012 to pursue her education, thereby becoming separated from her mother, family and friends.

(f)    a student without [the applicant’s] disabilities would have been provided with an education that:

i.    is designed to support them in reaching their educational potential;

ii.    is designed to teach them to read and write sufficiently to be able to meaningfully participate in community life, and to undertake tertiary education;

iii.    is designed to teach them numeracy skills sufficient to enable them to meaningfully participate in community life, and to undertake tertiary education;

iv.    for students without disabilities, follows the guidelines of the [r]espondent, including teaching of the Victorian Essential Learning Standards and the provision of an education which is “world-class”, by which such students can emerge equipped with the knowledge and skills they need for the future.

12    In para 16, it is alleged that the discrimination referred to was contrary to s 22(2)(a) of the DD Act, and the benefits, the applicant’s access to which were limited, are said to have been access to the curriculum, equal participation in the classroom, and an “educational outcome”, namely, “the opportunity to reach her potential in reading, writing and numeracy”. In para 17, it is alleged that the discrimination was contrary to s 22(2)(c) of the DD Act, and the detriments to which the applicant was subjected are likewise said to have been denial of access to the curriculum, denial of participation in the classroom, and denial of an “educational outcome”.

13    The allegations in Part D of the Statement of Claim are grouped according to years, namely, 2009 (paras 18 – 33), 2010 (paras 34 – 50), 2011 (paras 51 – 54) and 2012 (paras 55 – 60). Paragraph 61, although by arrangement within Part D, contains a general allegation as to the reasonableness of the adjustments which the applicant contends ought to have been made over the whole of the period to which the Statement of Claim relates.

14    As to 2009, it is alleged in para 18 that the respondent discriminated against the applicant at Briar Hill and failed to make reasonable adjustments for her education at the Preston Girls’ Secondary College, the reference to the college possibly being an error, since the applicant was not enrolled there until October 2010, and did not attend until February 2011. Paragraphs 19 – 24 contain a number of allegations which appear to be designed to set the scene, as to the respondent’s knowledge of the applicant’s disabilities and her educational experiences, with respect to the period before August 2009. Paragraph 20 is of some importance, and reads as follows:

20.    [The applicant’s] mother (her litigation representative) lodged a complaint of discrimination under the Act in April 2009. The Complaint set out the following reasonable adjustments required for [the applicant]:

(a)    A dedicated aide for all of her academic subjects;

(b)    evidence-based remedial programs in literacy and numeracy;

(c)    an Individual Education Plan incorporating expert recommendations;

(d)    a school based speech pathology program, developed and regularly monitored and evaluated by a Speech Pathologist.

15    It is in para 25 that the Statement of Claim appears to turn first to the conduct, on behalf of the respondent, which is said to have been unlawful under the DD Act during the period to which the claims relate. In para 25, it is alleged that, on 15 September 2009, the applicant was approved for funding through the Program for Students with Disabilities. The allegation continues: “However, this could not commence until 2010, and would only provide approximately 5 hours of integration aide time per week ….” It is next alleged that, by the end of 2009, the applicant “had continued to make no literary progress, and had deteriorated in some skill sets relating to [r]eading” since she had been tested 5 months previously.

16    In para 28 of the Statement of Claim, it is alleged that the respondent “failed to provide the reasonable adjustments to [the applicant]” set out in paras 13 and 20, the terms of which are set out above. There follows three pages of particulars to this broad allegation. In two instances, there are particulars to the particulars. According to the applicant, the respondent decided that the provision of significant assistance for her was not justified, due to her inability adequately to benefit from such assistance by reason of her disabilities. Recommendations had been made in 2008 by a psychology clinic for the applicant to receive three remedial programs in mathematics and literacy, but the principal at Briar Hill advised that these recommendations would not be adopted due to lack of funding. Some elements of the remedial programs were provided (these being identified in the particulars). As a consequence of the applicant having been diagnosed with an IQ of 68 in 2008, no formal speech pathology or language program was developed by the respondent.

17    Particular lettered (g) in para 28 is of some importance, and reads as follows:

(g)    The [r]espondent’s policies and procedures require Individual Education Plans to be developed for children with disabilities who receive funding through the Program for Students with Disabilities (“PSD”), and endorse Individual Education Plans for students with disabilities who do not qualify for individual funding.

PARTICULARS

An Individual Education Plan:

(i)    requires assessment and contains long and short term goals, strategies, measurable outcomes, data collection, monitoring and evaluation, according to the [r]espondent;

(ii)    is a written document;

(iii)    is designed to meet the individual needs of the child; the contents and development of the Individual Education Plan is contributed to significantly [sic] to by the Student Support Group (“SSG”);

(iv)    should be informed by a multidisciplinary team.

It is then said that the applicant qualified for acceptance to the Program for Students with Disabilities but, “due to administrative timelines and requirements of the [r]espondent”, she was not in fact accepted until September 2009. Save for documents described as “Goals and Strategies” and “Individual Learning Plan”, individual education plans, in accordance with particular (g), were not developed for the applicant. The requirements on which the applicant relies are said to be such as were contained in the respondent’s own documents, details of which are set out.

18    In particular (k), it is said that the respondent failed to facilitate “student support groups” for the applicant. The particular continues as follows:

(k)    … Students Support Groups are mandated for children who qualify for the Program for Students with Disabilities, and are accepted as being the minimum standard approach in the teaching of students with disabilities.

PARTICULARS

An SSG:

(i)    is a team in [sic] of people that facilitates and implements the student-centred planning process that is undertaken to develop individual student education programs.

(ii)    to develop short- and long-term goals for the student. The work is seen as collaborative, and a clear voice is given to the parent, who is usually the primary source of knowledge about the student.

(iii)    evaluates and monitors implementation of the student-centred planning process. Membership of an [sic] SSG includes the principal or the principal’s nominee, teaching and support staff, the student, family and family support, allied health professionals, such as psychologists and speech pathologists.

(iv)    be minuted, and all actions and decisions recorded. The minutes should be distributed to participants.

Again, it is said that student support groups were requirements of the respondent, contained in its own documents, details of which are set out.

I shall pass over paras 29-32 of the Statement of Claim at this stage, since they relate to a discrete subject, the applicant’s allegations under s 32 of the DD Act, to which I shall turn presently.

19    In para 33, it is alleged that, at the end of 2009, the applicant had made “no real progress” in her education and would regularly refuse to attend school “due to frustration and stress”.

20    As mentioned above, 2010 was not a normal year of schooling for the applicant, since she was withdrawn from Briar Hill (so it is alleged) at the end of 2009 and did not recommence in a school administered by the respondent, Preston Girls Secondary College, until February 2011. Aside from some broad allegations of an introductory nature, the applicant’s case in relation to 2010 appears to commence with allegations as to what is said to have been her proposed return to Briar Hill (ie in anticipation of completion of her sojourn at the Linda Mood-Bell School).

21    In this regard, the applicant commences (in para 45 of the Statement of Claim) by alleging that the respondent “continued to unlawfully discriminate against [her] upon her proposed return to Briar Hill in 2010”. Again, everything is in the particulars. The applicant first repeats paras 14-17 of the Statement of Claim (see paras 10-12 above). It is then said that, when the applicant’s mother “began negotiating [the applicant’s] proposed return to Briar Hill with the Principal”, she was told that the aide previously agreed upon was no longer available, and that the only alternative was the use, for 6-8 weeks, of an aide who was not experienced in working with children with auditory processing disorder and severe literacy and language issues. That alternative was accepted by the applicant’s mother, but the aide was not available beyond 25 June 2010. The particulars (still under para 45 of the Statement of Claim) then set out a series of short, verbless, propositions, namely, “No proposal for SSG meetings prior to [the applicant’s] possible return to Briar Hill in 2010”, “No proposal for SSG meetings after [the applicant’s] possible return to Briar Hill in 2010”, “No Individual Learning Plan for [the applicant] for 2010”, “No full time aide for [the applicant] in 2010”. It is then said that the respondent’s “position” was that the remedial programs that had been recommended for the applicant would not be provided. A corrective reading program was offered, but not every day. There was no commitment to perform the required mastery testing, nor as to how the monitoring of the provision of the program would occur. It is said that the respondent did not propose to provide a full-time, qualified, aide for the applicant at Briar Hill in 2010.

22    Seemingly as part of the narrative, it is then alleged (in para 47 of the Statement of Claim) that the applicant was assessed with an IQ of 72, which put her two points above the cut-off point for mild intellectual disability. As such, she did not qualify for individual funding which had previously been available.

23    It is alleged that there was no formal speech pathology or language program offered to, or put in place for, the applicant.

24    In para 49 of the Statement of Claim, it is alleged that the respondent’s proposals and conditions for the applicant’s return to Briar Hill “were in breach of the standards”. This allegation is particularised by reference to paras 29-32 of the Statement of Claim, to which I have referred above.

25    Finally in relation to 2010, it is alleged in para 50 that, at the end of that year, the applicant had made a small amount of progress as a result of her course at the Linda Mood-Bell school, that she did not wish to return to Briar Hill “due to her frustration and stress at the lack of support she received there”, that she was seeing a psychologist for anger management as a result of her school experience, that she had missed out on the social life of schooling due to having been homeschooled in the second half of the year and that she had experienced a “deteriorated relationship with her mother” because the latter had been obliged to take on the role of teaching.

26    There are only four paragraphs in the Statement of Claim which make allegations in respect of 2011. The first of these, para 51, reads as follows:

In breach of the [r]espondent’s obligations under the [DD] Act, the [r]espondent failed to make reasonable adjustments for [the applicant’s] education at Preston in 2011.

That very general form of pleading is then supported by almost seven pages of particulars.

27    The particulars commence by repeating the matters set out in paras 14-17 of the Statement of Claim, to which I have referred at paras 10-12 above. They then refer to a request by the applicant’s mother on 16 December 2010 that various things be provided by the Preston Girls Secondary College, namely, an evidence-based program to address the applicant’s significant academic delay, a speech/language program to address the applicant’s severe expressive and receptive disorder/difficulty, an individual education program developed with the assistance of a special education teacher and an aide in regular classes. A similar request is said to have been made on 31 January 2011. It is said that the College responded to the effect that the applicant would receive no direct language therapy, that the applicant would have no dedicated aide, but could be assisted by an aide that was involved with another student in the same year level when the two students were in the same class, and that the applicant would be part of a “language program”. There follows details of emails passing between the applicant’s mother and the College down to 24 February 2011, concerned with the difficulties which the applicant was having, in one respect, with a program which would be offered to the applicant.

28    The particulars to para 51 of the Statement of Claim then move to 28 April 2011, when the applicant’s mother was provided with an individual learning plan but, according to the particulars, the plan did not meet the respondent’s requirements. It is then said that further emails followed, in the period from late May to late June 2011, on the subject, substantially, of the extent to which the College would provide for the applicant the assistance of an aide. There is reference to the applicant’s report for the first semester, and to the results of her participation in the “NAPLAN” testing program, both of which were very disappointing for the applicant and her mother. Then it is said that, on 3 November 2011, the applicant’s mother requested “all reports and standardised testing in order to review the effectiveness of [the applicant’s] educational program”. The reports were never provided; and it is not clear whether a spelling test, which the College then committed to conduct, was ever conducted.

29    These particulars then refer to a meeting between the applicant, her mother, her advocate, a representative of the College and an integration aide on 15 December 2011. The applicant’s mother’s requests were repeated, and some of her points of dissatisfaction with the way the applicant was being educated were ventilated. The applicant’s very poor rate of progress, and test results, were noted. Also in December, the applicant’s second semester report was received, which showed that she had failed in mathematics and was ungraded in English.

30    The particulars then appear to move to more general aspects of the applicant’s complaints. It is said that, in 2011, her mother purchased equipment and software for the applicant’s use at school, by reason of the College having insufficient funds to do so itself. It is said that, for most of 2011, the applicant handed in subject tests without answering any questions on them. It is said that, during 2011, the applicant missed numerous days at school “due to school refusal”. Reference is made to recommendations by the RMIT Psychology Clinic for the applicant to receive remedial programs in mathematics and literacy, but the respondent refused to provide those programs.

31    It is next said that the respondent does not provide “ongoing speech pathology assistance” to students in secondary school, that speech pathologists visited secondary schools only for limited purposes (which are set out), that there were insufficient numbers of speech pathologists in the northern region, and that the view was taken by the respondent that “early intervention” was more advantageous to children with language disorders. In the result, no formal speech pathology or language program was developed by the respondent for the applicant at the College.

32    Then it is said that the applicant had previously qualified for acceptance into the program for students with disabilities but, after an IQ shift of 4 points, the result of her privately-provided intensive literacy teaching, did not qualify for individual funding in 2011. When the respondent held student support group meetings for the applicant in 2011, it did not conduct them as described in particular (k) to para 28 of the Statement of Claim (see para 18 above).

33    Finally under para 51, it is reiterated that no full-time or qualified aide was provided for the applicant in 2011.

34    Paragraph 52 of the Statement of Claim is in the following terms:

[The applicant’s] disabilities and needs were the same in 2011 as they had been in 2010, and prior to that.

35    In para 53 of the Statement of Claim, it is alleged that, in 2011, the respondent breached the standards in relation to the applicant at the College. This allegation is particularised by reference to paras 29-32 of the Statement of Claim, to which I have referred above.

36    Finally in relation to 2011, it is alleged that, at the end of 2011, the applicant had made no real progress in her education, and would regularly refuse to attend school “due to frustration and stress”.

37    Turning to 2012, it is alleged in para 55 of the Statement of Claim that the respondent unlawfully discriminated against the applicant and failed to make reasonable adjustments. That is the extent of the allegation but, again, the essence of the applicant’s complaint is to be found in the particulars. This time, however, the particulars themselves are not fulsome. The applicant repeats the matters set out in paras 14-17 of the Statement of Claim (see paras 10-12 above). Then, in point form almost, the applicant says: “No Individual Learning Plan …”, “No modified school curriculum …”, “No monitored literacy program …”, “No provision for formal academic test results … or alternatively incorrect results were provided”, and “No formal, [sic] individual literacy program was developed or implemented ….” It is alleged (in para 56) that the applicant’s language disorder had been and was deteriorating throughout her schooling; and the applicant’s “core language score” for each of the years 2005, 2008, 2011 and 2012 is set out. It is alleged in para 57 and effectively repeated in para 60 that, in 2012, the education services provided for the applicant at the College were in breach of the standards, in which respect paras 29-32 of the Statement of Claim are again repeated. The allegations to which I have referred in the previous paragraph are repeated in relation to 2012, and it is added that, by August 2012, the applicant was seeing a psychologist for anger management as a result of her school experience.

38    The final paragraph of the Statement of Claim, para 61, alleges that the adjustments requested by the applicant in relation to Briar Hill and the Preston Girls Secondary College were reasonable, due to a range of factors. Those factors included the respondent’s claims to provide a world-class education to students with disabilities, and claims to similar effect; the respondent’s claims to meet the needs of individual students; the absence of any qualification to that claim by reference to the student’s IQ, to the availability of funds or to the level, primary or secondary, of the school concerned; the absence of any qualification to the respondent’s claims as to the availability of speech pathology by reference to those factors; the lack of any “research basis” for the respondent to claim that the adjustments requested by the applicant and her mother would not result in an adequate benefit for the applicant; the respondent having made decisions about what the applicant can and cannot do without any attempt to provide the adjustments “to test the effects of same”; the lack of any interest on the part of the respondent to review the efficacy of its own adjustments; the circumstance that (as it is said) the purchasing of equipment and resources for the College by the applicant’s mother breached the Education and Training Reform Act 2006 (Vic); the need for the respondent to have taken into account the applicant’s suffering, both educationally and psychologically; the failure of the respondent to weigh up the cost to the community of the applicant remaining unemployed for her lifetime “in the face of being unable to read or write”; and the respondent’s failure to provide a formal evidence-based literacy and numeracy program to the applicant, following findings by a report of the Auditor-General in February 2009.

39    It is convenient to consider first the applicant’s case under s 5(2) of the DD Act, as read into s 22(2). The respondent’s application does not raise for consideration the question whether any of the adjustments alleged to have been required was “reasonable”: under s 4, an adjustment is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the respondent. That is to say, the reasonableness of any adjustment under consideration will arise on the respondent’s case, and the present application is concerned only with the applicant’s case.

40    Even making that allowance, however, the operation of s 22(2) of the DD Act is not without its difficulties. Reading s 5(2) into s 22(2), the result produced is the following:

It is unlawful for an educational authority not to make reasonable adjustments for a student with a disability, where the failure to make the reasonable adjustments has, or would have, the effect that the student is, because of the disability, treated less favourably than a student without the disability would be treated in circumstances that are not materially different:

(a)    by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

…

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

It can be seen that this composite provision makes an omission by an educational authority unlawful, by reference to the effect of that omission. But the paragraphs of the subsection take the matter further in requiring, at least as I would read them (and relevantly to the facts of the present case), that the effect be felt by way of a denial of, or a limitation in, the student’s access to any benefit provided by the authority, or by way of the subjection of the student to any other detriment.

41    Making a corresponding provision by reading s 5(2) into s 22(2A), the result produced is somewhat different from that referred to above:

It is unlawful for an education provider not to make reasonable adjustments for a person with a disability, where the failure to make the reasonable adjustments has, or would have, the effect that the 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:

(a)    in the development of curricula or training courses having a content that would, without the adjustments, either exclude the person from participation, or subject the person to any other detriment; or

(b)    by accrediting curricula or training courses having such a content.

Here paras (a) and (b) of s 22(2A) effectively contain the identification of the conduct proscribed, namely, developing unadjusted curricula or training courses with a content that would exclude the person from participation or subject him or her to any other detriment, or accrediting curricula or training courses having such a content.

42    How does the applicant bring herself within these provisions? Although the Statement of Claim is lengthy and at times unnecessarily discursive, the starting point of the applicant’s case is to be found in paras 9, 10 and 13 (see paras 8-9 above). In other words, this is not a case in which the making of some ancillary or adjectival adjustment is said to have been necessary to enable the applicant to derive the benefit of the education that was being provided to others (such as, perhaps, would be needed in the case of physically disabled children). Rather, the applicant’s disabilities, as alleged, centrally affected her capacity to benefit from the educational services being provided by the respondent. It was to the teaching methods as such that, as the applicant alleges, the respondent should have made adjustments.

43    On the present application, the respondent says that the applicant has not identified what those adjustments were. Both parties submitted that para 13 of the Statement of Claim was crucial to the content, and to an understanding, of the pleading as a whole (at least to the extent that it relies upon s 5(2)). Here it seems that the starting point must be subparas (d) and (e), in which it is alleged that the applicant required an individual education plan and a school-based speech pathology program. One then goes to subpara (a), in which it is alleged that a required adjustment was the provision of a full-time aide with the ability competently to implement such a plan and such a program. Subparagraph (b) makes a further substantive allegation, namely, that “evidence-based remedial programs in literacy and numeracy”, monitored for effectiveness, were a required adjustment. Subparagraph (c) then adds a layer of specification in relation to the skills and competence of the person who would be the full-time aide and other “professionals”.

44    In respect of the year 2009, para 20 of the Statement of Claim also purports to deal with the subject of reasonable adjustments, but not in any way that goes beyond para 13, or that requires separate treatment in these reasons.

45    In the submission of the respondent, nowhere in the allegations in para 13 is there any identification of the actual adjustments that would avoid the less favourable treatment effect referred to in s 5(2). The adjustments to the “teaching methods” referred to in para 10 are not, it is submitted, identified. Without descending to this level of particularity, para 13(a)-(e) of the Statement of Claim is, relevantly to the applicant’s cause of action under s 5(2), content-free and therefore embarrassing and prejudicial.

46    Counsel for the applicant accepted the force of these submissions, but submitted that it was for this reason that subpara (f) of para 13 was included in the Statement of Claim. That subparagraph was not part of the definition of “reasonable adjustments” as such, but alleged that the applicant was precluded from identifying the reasonable adjustments that should have been made, including those set out in (i)-(iv). As I understand the applicant’s position here, her allegation comes down to the respondent’s failure to hold student support group meetings which, had they been held, would have developed an individual learning plan, or education plan, and it would have been in such a plan that one would have found an identification of the reasonable adjustments that would have avoided the less favourable treatment effect referred to in s 5(2).

47    I do not think that subpara (f) of para 13 of the Statement of Claim fixes the problem which the respondent identifies in subparas (a)-(e). Indeed, it is clear from subpara (f) that the applicant does not identify the reasonable adjustments that are said to be required because she cannot do so. Whether she has a legitimate cause for complaint about the respondent’s failure to hold student support group meetings may be a question, but the answer to it would lead nowhere under s 5(2): it is necessary, in my view, for her pleading to set out facts which, if proved, would lead to the conclusion that the omissions of the respondent had the effect of her being treated less favourably than a person without her disabilities would be treated in circumstances that are not materially different. Paragraph 13 of the Statement of Claim does not do that, and, because it is a definitional pleading, neither do the other paragraphs which use the term defined, namely, “reasonable adjustments”.

48    To the extent that para 13(f) of the Statement of Claim represents the reality of the applicant’s position, one may sympathise with her and with those, including her mother, who have evidently devoted so much of their energies to improving her education. However, as it is expressed, the Statement of Claim (relevantly to the point under discussion) effectively contemplates that the court would commence hearing the case without any clear articulation by her of the adjustments which the respondent should have made, the absence of which made its conduct unlawful. But the applicant could not succeed unless, at some point, the content of those adjustments became a matter of evidence and, ultimately, of a finding in her favour. To the extent that a Statement of Claim does no more than scope out the nature of the problem, and leave it to the trial of the action for the content of the respondent’s omissions to become apparent, the pleading, is, in my view, embarrassing and prejudicial within the meaning of r 16.21(1)(d). To the extent that it alleges that the respondent was required to make reasonable adjustments, the Statement of Claim in the present case is such a pleading.

49    In the circumstances and for the above reasons, I would strike out paras 15, 18 (to the extent that it relates to reasonable adjustments), 20, 21, 28, 34 (to the extent that it relates to reasonable adjustments), the reference to para 15 in the particulars to para 45, 51, 55 (to the extent that it relates to reasonable adjustments) and the reference to para 15 in the particulars to that paragraph, and para 61 of the Statement of Claim. At this stage, I do not propose to strike out para 13 itself, since it is definitional with respect also to paragraphs of the Statement of Claim other than those which invoke s 5(2) of the DD Act, to which I shall turn below.

50    Turning next to the applicant’s case under s 5(1) of the DD Act, I would commence as I did in relation to s 5(2) by reading s 5(1) into s 22(2), the result of which is the following:

It is unlawful for an educational authority to treat a student with a disability less favourably than the discriminator would treat a student without the disability in circumstances that are not materially different:

(a)    by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

…

(c)    by subjecting the student to any other detriment.

Making a corresponding provision by reading s 5(1) into s 22(2A), the result produced is the following:

It is unlawful for an education provider to treat a person with a disability less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different:

(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; or

(b)    by accrediting curricula or training courses having such a content.

51    The umbrella allegation which the applicant makes under s 5(1) is that set out in paras 14 and 14A of the Statement of Claim (see para 10 above). Although expressed as a positive act done by the respondent – abandoning the applicant’s formal education – it is clear from the particulars provided that, in the case of the applicant as distinct from the normal run of students, what is alleged is the respondent’s omission to provide her with an education plan, to provide student support group meetings, to provide “intensive support” for her education and to provide speech therapy. That is to say, the essence of the applicant’s case is that the respondent failed to treat her differently from the way it treated other students.

52    In Purvis v New South Wales (2003) 217 CLR 92, the High Court was concerned with the claims of a disabled school student under s 5(1) of the DD Act (the “reasonable adjustments” regime not then being part of the legislation). Gummow, Hayne and Heydon JJ stressed that the focus of the DD Act (ie of s 5(1)) was on “ensuring equality of treatment”, and that this was to be contrasted with what under other legislative regimes was known as “substantive equality”, namely, a paradigm based on the premise that “in order to treat some persons equally, we must treat them differently” (here quoting from Regents of University of California v Bakke (1978) 438 US 265, 407): 217 CLR at 154-155 [202]-[203]. Their Honours said that s 5(1) “requires equality of treatment between the disabled and those who are not”; and that recognising that s 5(1) “requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act”: 217 CLR at 158 [213] and [214].

53    In Purvis, the student had been expelled, this being a positive act for which s 22(2)(c) of the DD Act still provides. In the present case, as noted above, the applicant relies on paras (a) and (c) of the subsection, but she points to no step taken by the respondent which would amount to a denial of the kind referred to in para (a) or to a subjection of the kind referred to in para (c). Rather, the thrust of her case is that the effect of the omissions – ie the inaction – referred to in para 51 above was that she was denied the benefit of the education that was given to students who did not have her disability. In other words, she seeks to invoke the premise that “in order to treat some persons equally, we must treat them differently”, which is the very premise that does not inform the operation of the direct discrimination provisions of the DD Act.

54    In this respect, the applicant’s case under s 5(1) is, in essence, indistinguishable from her case under s 5(2). While not describing them as “reasonable adjustments”, the applicant nonetheless alleges that things ought to have been done, and changes (to use a neutral term) ought to have been made in the way the respondent delivered its educational services to her which need not have been done or made in the case of a student without her disability. A case of this kind is not, in my view, responsive to the requirements of s 5(1). It would be both embarrassing and prejudicial to require the respondent to plead to allegations which sought to make out such a case.

55    What I have said to date relates to paras 14 and 14A of the Statement of Claim. Other later, related, allegations, suffer from the same vice. I would, therefore, strike out paras 14, 14A, 18 (to the extent not covered by the reference in para 49 above), 34 (to the extent not covered by the reference in para 49 above), the reference to para 14 in the particulars to para 45, and 55 (to the extent not covered by the reference in para 49 above) of the Statement of Claim.

56    To complete the picture with respect to the applicant’s allegations of direct discrimination, I would add that I cannot see in the Statement of Claim any clear reliance on subs (2A) of s 22 of DD Act. As I have attempted to make clear, the applicant’s case is about what the respondent did not do: there is no positive allegation that the respondent took either of the steps referred to in paras (a) and (b) of this provision.

57    It was the respondent’s submission that, once the excisions referred to above had been made to the Statement of Claim, the balance was “unintelligible” and disclosed no cause of action. I was not, however, addressed in any detail on the remaining dimension of the pleading, namely, that which relied on s 32 of the DD Act.

58    Subsections (1) and (2) of s 31 of the DD Act read as follows:

(1)    The Minister may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person.

(2)    Without limiting subsection (1), a disability standard may:

(a)    deal with the following:

(i)    reasonable adjustments;

(ii)    strategies and programs to prevent harassment or victimisation of persons with a disability;

(iii)    unjustifiable hardship;

(iv)    exemptions from the disability standard, including the power (if any) of the Commission to grant such exemptions; or

(b)    provide that the disability standard, in whole or in part, is or is not intended to affect the operation of a law of a State or Territory.

…

59    As noted above, s 32 makes it unlawful to contravene a disability standard. Section 34 provides as follows:

If a person acts in accordance with a disability standard this Part (other than this Division) does not apply to the person’s act.

60    That is to say, acting in accordance with a disability standard will shield a person from liability under, for instance, s 22 of the DD Act, but if the person contravenes a disability standard, he or she will be liable under s 32, and may also be liable under s 22. In the present case, the allegations which the applicant is evidently attempting to make would invoke both s 22 and s 32.

61    In respect of 2009, the allegations which invoke s 32 are made in paras 29-32 of the Statement of Claim. They are repeated, unchanged in point of substance, in the groups of allegations that relate to 2010, 2011 and 2012.

62    In para 29 of the Statement of Claim, the applicant alleges that, in breach of s 32, the respondent “failed to make the reasonable adjustments necessary to enable [her] to access her education”. In the particulars to this paragraph, the applicant makes it clear that the standards upon which she relies are called “Disability Standards for Education” (“the standards”), a document with which the respondent, presumably, would be familiar. It seems that the standards make provision for the making of adjustments. When making any adjustments, it is said that the respondent was required to take into account the student’s disability, the views of the student and of his or her associates and the effect of the adjustment, including the effect on his or her ability to achieve learning outcomes, ability to participate in courses or programs and independence. It is said that the standards require consultation with the student, or with his or her associates, as to whether an adjustment is reasonable, as to the extent to which the adjustment achieves the aims of the standards and as to whether any other reasonable adjustment would be less disruptive and intrusive, and no less beneficial to the student. It is then said that, to the extent to which consultation occurred and the views of the applicant and her associates were obtained, “the respondent rejected such views and elected to put in its own adjustments and/or failed to make the necessary reasonable adjustments”.

63    In para 30 of the Statement of Claim, the applicant alleges that the respondent has breached s 32 of the DD Act by contravening Part 5 of the standards. Over the following two pages, particulars of those breaches are set out. They include failing to take reasonable steps to ensure that the applicant was able to participate in programs provided by the respondent, and use the facilities and services provided by the respondent on the same basis as a student without a disability, “and without experiencing discrimination”; refusing, neglecting or failing to engage with relevant professionals as a result of consultation with the applicant’s associate, thereby being unwilling or unable “to make informed decisions in relation to further adjustments as required by the standards …”; ignoring the applicant, her mother and medical professionals, and discarding their opinions and priority recommendations; failing to make the reasonable adjustments which had been identified by the applicant through her mother and which had the aim of enabling the applicant to participate on the same basis as a student without a disability, and failing to make alternative adjustments that would achieve that aim; and failing to repeat the process of ascertaining the adjustments required to meet the aim set out in Part 5 of the standards.

64    In para 31 of the Statement of Claim, the applicant alleges that the respondent has breached s 32 of the DD Act by contravening Part 6 of the standards. The gravamen of the allegation is to be found in the particulars, which have a deal in common with the particulars to para 30. They include refusing, neglecting or failing to engage with relevant professionals as a result of consultation with the applicant’s associate, thereby being unwilling or unable “to make informed decisions in relation to further adjustments as required by the standards …”; ignoring the applicant, her mother and medical professionals, and discarding their opinions and priority recommendations; failing to make the reasonable adjustments which had been identified by the applicant through her mother and which had the aim of enabling the applicant to participate on the same basis as a student without a disability, and failing to make alternative adjustments that would achieve that aim; failing to analyse the applicant’s lack of progress and deteriorating language scores, to hold any formal review of the applicant’s progress, to trial different strategies in the face of the applicant’s poor progress, or the strategies suggested by her mother and to follow the processes as set out in the respondent’s own documents; mistakenly believing that a modified curriculum consisted of “easier or less work”, rather than “a curriculum that allowed [the applicant] to learn the same curriculum as others, through a different learning style”; providing easier work for the applicant instead of providing the recommended formal remedial programs, providing a remedial program in accordance with the program design and in response to the applicant’s lack of educational progress, providing any alternative formal remedial program and collecting data on the outcomes of the respondent’s teaching methods and trialling different or alternative supplementary strategies; and failing to repeat the process of ascertaining the adjustments required to meet the aim set out in Part 6 of the standards and continuing to ignore the requests of the applicant’s mother and the recommendations contained in reports and assessments which had been obtained in relation to the applicant.

65    In para 32 of the Statement of Claim, the applicant alleges that the respondent has breached s 32 of the DD Act by contravening Part 7 of the standards. Again, the gravamen of the allegation is to be found in the particulars. They include failing to take reasonable steps to ensure that the applicant had access to speech pathology services by adopting the position that students with IQs below 70 were not worthy of speech pathology services, but should learn functional life skills instead; failing to take reasonable steps to ensure that the applicant had access to a dedicated aide with the skills to implement an individual education plan and a speech/language program; ignoring the applicant, her mother and medical professionals, and discarding their opinions and priority recommendations; failing to make such adjustments as would achieve the aim of ensuring that the applicant could participate in the activities for which she was enrolled (obtaining an education commensurate with her potential and learning to read and write to her potential); failing to provide the support services which had been identified by the applicant’s mother and to make alternative adjustments that would have allowed the applicant to obtain an education, and to read and write, to her potential; failing to analyse whether there was a link between the applicant’s poor progress and deteriorating language skills and the failure to provide her with speech pathology services or with a dedicated aide; failing to hold any formal review of the applicant’s progress; failing to trial support services in the face of the applicant’s poor progress, or the support services requested by her mother; and failing to adopt recommendations which had been made in previous reports and assessments.

66    I can understand how the respondent might consider that paras 29-32, and the later paragraphs which rely on them, are problematic in a number of respects, not the least of which is their invocation of the definitional provisions of para 13. However, I do not accept that they are unintelligible and therefore embarrassing or prejudicial. They may be all of these things, but I am not prepared to embark, for myself, upon the analysis which would be required to reach this point – an analysis to which the respondent’s submissions did not descend.

67    In the result, I shall strike out paras 14, 14A, 15, 18, 20, 21, 28, 34, 51 and 55 of the Statement of Claim, and the references to paras 14 and 15 in the particulars to para 45 and to para 15 in the particulars to para 61. Because of the applicant’s discrete reliance on s 32 of the DD Act, I have rejected the respondent’s argument that, without these paragraphs and references, the balance of the Statement of Claim would be unintelligible. I have not, however, otherwise entered upon the question whether there now would be a reasonable cause of action under s 22 of the DD Act articulated in the Statement of Claim. That, together with other amendments which she is advised to make, might well be the subject of the applicant’s attentions under the leave which I propose to reserve to her in the orders which I shall make in disposition of the respondent’s interlocutory application.

Associate:

Dated:    24 September 2013