FEDERAL COURT OF AUSTRALIA

Lambert v State of Victoria [2014] FCA 1064

THE COURT ORDERS THAT:

1.    Pursuant to Order 16 Rule 21 of the Federal Court Rules 2011 (Cth), paragraphs 7 to 37 of the applicant’s Amended Statement of Claim filed 28 May 2014 be struck out with leave to replead.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1    The respondent has applied for an order pursuant to Order 16 Rule 21 of the Federal Court Rules 2011 (Cth) (“the Rules”) striking out the applicant’s Amended Statement of Claim (“ASOC”) on the grounds that the ASOC fails to disclose a reasonable cause of action, is likely to cause prejudice, embarrassment and delay of the proceeding, and is an abuse of the process of the Court. For the reasons that follow, the order should be made but the applicant should be given leave to replead.

pleaded causes of action

2    The ASOC pleads four causes of action against the respondent under the Disability Discrimination Act 1992 (Cth) (“the Act”), each of which relates to the period from February 2008 to December 2011 (“the relevant period”) when the applicant was a student at East Doncaster Secondary College. The four causes of action are:

(a)    A claim of direct discrimination by an educational authority contrary to ss 5 and 22(2) of the Act;

(b)    A claim of direct discrimination by an education provider contrary to ss 5 and 22(2A) of the Act;

(c)    A claim of indirect discrimination by an educational authority contrary to ss 6 and 22(2) of the Act; and

(d)    A claim of indirect discrimination by an education provider contrary to ss 6 and 22(2A) of the Act.

Claims of direct discrimination

3    The applicant’s claims of direct discrimination are pleaded in two ways:

(a)    The applicant alleges that the respondent treated the applicant less favourably than it would treat a person without her disabilities in circumstances that are not materially different (“the less favourable treatment allegation”); and

(b)    The applicant alleges that the respondent failed to make reasonable adjustments for the applicant, and the failure to make reasonable adjustments had the effect that she was, because of her disabilities, treated less favourably than a person without her disabilities in circumstances that are not materially different (“the reasonable adjustments allegation”).

Claims of indirect discrimination

4    The applicant alleges that the respondent engaged in indirect discrimination by requiring her to comply with three requirements or conditions in circumstances that were contrary to ss 6 and 22 of the Act. I set out this pleading in greater detail later in these reasons.

5    The respondent has not yet filed a defence to the claims.

APPLICABLE PRINCIPLES

6    The parties were not in dispute about the applicable principles on a strike out application. They may be summarised as follows:

(a)    Order 16 Rule 21 is concerned with the adequacy of the allegations and the causes of action pleaded as a matter of law. The rule does not permit or allow consideration of facts or evidence outside the pleadings: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41; [2008] FCA 1920 at [4] (Finkelstein J); Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) 2010 267 ALR 494; [2010] FCA 361 at [15]-[17];

(b)    The power to strike out a pleading because it discloses no reasonable cause of action should be exercised only in a plain and obvious case and requires establishing that the statement of claim does not disclose a reasonable cause of action by showing that the applicant’s case is so untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30; Davis v Commonwealth of Australia (1986) 68 ALR 18; [1986] HCA 66 at [7] and the authorities cited. The power to make such an order is discretionary and should be exercised with caution: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175; Morton v Vouris (1996) 21 ACSR 497 at 513;

(c)    A pleading is likely to cause prejudice, embarrassment and delay of the proceeding if it is susceptible to various meanings, or is unintelligible, ambiguous, vague or too general to enable the other party to know, with sufficient clarity, the case which it is required to meet: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22].

7    A recent statement of the principles applicable to pleadings is to be found in Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537; [2012] FCAFC 107. The Full Federal Court stated at [6]:

It was common ground that the applicable principles in relation to an application to strike out the whole or part of a statement of claim were as stated by the primary judge in an earlier successful strike out application in the proceeding (see Young Investments Group Pty Ltd v Stripe Capital Pty Ltd [2010] FCA 996). Those principles can be stated shortly. In an application to strike out a pleading, all of the facts alleged in the relevant pleading are to be accepted as true, and it is to be taken for granted that, on all other points, the pleading is unassailable. Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial. Further, a court of first instance should be careful not to risk stifling the development of the law by summarily dismissing a claim where there is a reasonable possibility that, as the law develops, a cause of action may be held to lie. The power to dismiss summarily is to be used only in cases that are unarguable and for which there is no reasonable prospect of success.

These principles are relevant to the present case where, amongst other things, it is contended by the respondent that certain of the claims are against authority.

DIRECT DISCRIMINATION CLAIM: the “less favourable treatment allegation”

The legislative framework

8    In para 5 of the ASOC, the applicant alleges eight disabilities, including “borderlineIQ/mild intellectual disability”. The respondent accepts for the purposes of this application that the alleged “mild intellectual disability” constitutes a “disability” as defined in s 4 of the Act.

9    Section 5(1) as it was prior to amendment on and from 5 August 2009 provided:

For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

10    Section 5(1) now provides:

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.

11    Section 22(2) provides, relevantly:

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)    …

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

12    Section 22(2A) provides:

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 subjecting the person to any other detriment; or

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

13    The respondent is an “educational authority” and an “education provider” as defined by s 4 of the Act.

14    For the purposes of this application the respondent submitted that there was no difference in substance between s 5(1) pre amendment and s 5(1) post amendment. Accordingly for convenience for the purposes of this application I will refer only to s 5(1) as applying to the whole of the relevant period, without distinction.

15    In summary throughout the whole of the relevant period:

(a)    Sections 5(1) and 22(2) relevantly prohibited an educational authority from treating a person with a disability (“aggrieved person”) less favourably that it would treat a person without the disability in circumstances that are not materially different, on the ground of the disability of the aggrieved person:

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

(ii)    subjecting the student to any other detriment.

(b)    Sections 5(1) and 22(2A) relevantly prohibited an education provider from treating a person with a disability (“aggrieved person”) less favourably that it would treat a person without the disability in circumstances that are not materially different, on the ground of the disability of the aggrieved person:

(i)    by developing curricula or training courses having a content that will either exclude the person from participation; or

(ii)    subjecting the person to any other detriment.

The pleading in the ASOC

16    The conduct of the respondent alleged to give rise to the less favourable treatment is an alleged failure by the respondent throughout the whole of the relevant period “to apply and implement its policies, procedures and guidelines” to the applicant “as it did to students without a borderline IQ/mild disability”. Eleven policies, procedures and guidelines are pleaded. It is alleged that the respondent’s failure to apply and implement those policies, procedures and guidelines constituted direct discrimination against the applicant:

(a)    pursuant to ss 5(1) and 22(2) of the Act on the basis that it:

(i)    amounted to “less favourable treatment” of the applicant than the respondent would treat students without a disability, or without a borderline IQ/mild intellectual disability in Victorian Government schools “who cannot access the curriculum” and were “disengaging from school” (paras 7 and 13); and

(ii)    occurred because of the applicant’s borderline IQ/mild intellectual disability (paras 7 and 13); and

(b)    pursuant to ss 5(1) and 22(2A) of the Act on the basis that it required the applicant “to access curriculum/courses having content that excluded her from participation, thereby subjecting her to a detriment” (para 14).

17    Further it is pleaded that the respondent failed to apply and implement those policies, procedures and guidelines to the applicant “on the assumption that the applicant would not benefit from such policies, procedures and guidelines due to her borderline IQ/mild disability”: paras 7A and 13A. The particulars to para 7A state that the “failure” is set out in para 34. No particulars are provided to para 13A. Paragraph 34 alleges 14 “facts”. The 14 “facts” relevantly include that:

(a)    The respondent failed to form and/or operate Student Support Groups for the applicant in any year throughout the relevant period “despite [the applicant’s] disabilities, absences, disengagement and critical academic and social well-being deficits” (para 34.2);

(b)    The respondent has failed to provide the applicant “with access to the curriculum and a quality education” (para 34.3); and

(c)    The respondent failed to address the applicant’s “disengagement and absences from school” (para 34.14).

Decision

18    The respondent’s primary contention was that a direct discrimination case against the respondent based on an alleged failure to apply and implement its policies, procedures and guidelines must fail because this Court has held that the Act does not empower the Court to enforce the respondent’s policies. The respondent referred to Walker v State of Victoria [2012] FCAFC 38 where Gray J (with whom Reeves J agreed) stated at [73] that:

Whatever provisions guidelines adopted by the State with respect to students with disabilities might make, and whatever benefits or expectations such guidelines might create, they are not the subject of enforcement of the Disability Discrimination Act.

Gray J reasoned that:

When dealing with discrimination by less favourable treatment, it is clear that the proper comparator is a student with the same behavioural characteristics, but without the disabilities, of the student in respect of whom such discrimination is alleged. In the case of discrimination by requirement or condition, it is necessary for the person alleging discrimination to establish the existence of the requirement or condition that satisfies the criteria in s 6 of the Disability Discrimination Act. So far as the appellant’s case is concerned with the discrimination in the provision of education services, contrary to s 22 of the Disability Discrimination Act, it needed to focus on the definitions in s 5 and 6 … No provision of the Disability Discrimination Act empowers the Court to undertake a general inquiry into the best interests, or the vulnerability, of a child with disabilities.

See too Abela v State of Victoria [2013] FCA 832 at [101] (Tracey J) and Keifel v State of Victoria [2013] FCA 1398 at [3] (Tracey J).

19    It was further argued that the less favourable treatment allegation is “fundamentally flawed” because ten of the eleven policies, procedures and guidelines that the respondent is alleged to have failed to apply and implement in relation to the applicant do not apply to students without the applicant’s disabilities.

20    The response for the applicant was two-fold. First that Walker was a very different case to the present case. Secondly, in the written submissions it was stated that:

To be clear, the applicant’s complaint is not simply that the respondent did not implement its policies for the benefit of the Applicant. The Applicant’s complaint is that the Respondent has applied its policies and procedures in a discriminatory manner.

21    In oral submissions, Mr Hancock for the applicant elaborated that the applicant is not claiming that the respondent did not implement its policies for the benefit of the applicant. Rather, the claim is that the applicant was treated less favourably because the policies existed and that she did not receive the benefit of those policies, where students without her disabilities did. Quite frankly I have some difficulty in understanding the distinction in so far as the relevant policies in question were not policies that applied to students without the applicant’s disabilities. Certainly in its current form, the pleading fails to identify how the respondent’s conduct in failing to apply and implement, in relation to the applicant, those policies which did not apply to students without disabilities, gave rise to less favourable treatment of the applicant within the meaning of s 5(1) of the Act. Given that it was maintained for the applicant that the way in which her claim is to be made is materially distinguishable from Walker, an opportunity to re-plead should be given so that the precise form of the claim can be considered before forming any view about whether the proposed claim is one that is capable of being advanced.

22    There are further difficulties with the pleading. Putting to one side that most of the policies appear to relate to persons with disabilities, the pleading in its current form does not with sufficient clarity identify the elements of the definition of direct disability discrimination in s 5(1). I accept the respondent’s criticism that the pleading as it stands is imprecise, subjective and unclear.

23    First, the pleading does not identify how in the relevant circumstances the respondent would have applied its policies to a person without the applicant’s disability. Such a pleading is necessary as an element of the direct discrimination claim under s 5(1).

24    Secondly, the ASOC does not identify the circumstances in which the alleged failure to apply and implement the policies is said to have occurred. This is necessary because s 5(1) requires the failure to have the effect that the applicant is treated less favourably than a person without her disabilities would be treated in circumstances that are not materially different. The only circumstances that are identified are those of the “comparator” students without a borderline IQ/mild intellectual disability to whom the respondent is alleged to be applying and implementing the policies, procedures and guidelines, who “cannot access the curriculum” and are “disengaging from school”. These circumstances, as pleaded, covering the whole of the applicant’s schooling over the whole of the relevant period, are too generalised to be meaningful. Furthermore, and critically, there is no specific pleading in relation to this claim that the applicant was unable to access the curriculum or was disengaging from school, save and to the extent that para 34 is incorporated. Even then, the relevant parts of para 34 are insufficient because they also suffer from the defect that they are too generalised. The pleading is embarrassing.

25    Thirdly, the pleading is deficient in relation to the alleged causative link between the alleged failure by the respondent to apply and implement the policies, procedures and guidelines to the applicant and the applicant’s borderline IQ/mild intellectual disability. The pleading alleges that the respondent failed to apply and implement those policies, procedures and guidelines “on the assumption she would not benefit from such policies, procedures and guidelines due to her borderline IQ/mild disability”: paras 7A, and 13A. However, the “assumption” pleaded is not supported by the material facts which provide the factual foundation for the claim that such an assumption was made. The applicant contended that the pleading was sufficient, stating that:

[T]he Applicant, at the trial of this proceeding, will ask the Court to draw an inference that the Respondent has not applied its policies, procedures and guidelines to the Applicant, by reasons of the Applicant’s Borderline IQ/Mild Intellectual Disability. The inference will be sought to be drawn on the basis of the respondent’s well-established position, pleaded by it in recent similar discrimination cases, that such students cannot benefit from intensive assistance.

If an inference is to be drawn, it is necessary to set out the facts and matters which are capable of supporting that inference. The allegation is embarrassing.

26    Fourthly, the claim in para 14 based on s 22(2A) of the Act in relation to the alleged failure to apply and implement policies, procedures and guidelines does not in terms engage the criteria in that section. In the applicant’s written submissions, it was put that:

The Applicant’s position is that the curriculum as presented to her was inaccessible, as the content was above her level of understanding at all times during the period of the complaint. It is the Applicant’s position that the application of the respondent’s policies, procedures and guidelines would have either:

a.    given her the skills to access the content of the curriculum; and/or

b.    resulted in appropriate modification of the content of the curriculum in order that she could access it.

If that be the intended pleading, it is not pleaded that way and para 14 should be re-pleaded. Even then, it is not clear how it is said that s 22(2A) would be engaged as this provision specifically prohibits discrimination on the grounds of disability through developing or accrediting “curricula or training courses having a content that will either exclude the person from participating, or subject the person to any other detriment.” The ASOC does not make any allegation about the respondent’s development of curricula or training courses.

27    Finally the pleading in para 34 which alleges the “facts” supporting the claims in paras 7, 13 and 14 suffers from the same deficiency that the allegations are too broad to be meaningful. The generalised nature of the pleading does not enable the determination of what precisely is alleged against the respondent. The pleading also suffers from the fatal flaw that it has not been alleged that such policies would have been applied to, and implemented in the circumstances of a person without the applicant’s disabilities who could not “access the curriculum” and was “disengaging from school”.

DIRECT DISCRIMINATION CLAIM: the Reasonable adjustments allegation

The legislative framework

28    This allegation is based on ss 5(2) and 22(2) and ss 5(2) and 22(2A) and made only in respect to the period on and from 5 August 2009 when s 5(2) of the Act was introduced.

29    Section 5(2) relevantly provides:

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.

30    Sections 5(2) and 22(2) relevantly prohibit an educational authority from:

(a)    failing to make reasonable adjustments for a person (the aggrieved person) on the grounds of a disability of the aggrieved person;

(b)    where the failure to make 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;

(c)    by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority or subjecting the student to any other detriment.

31    Sections 5(2) and 22(2A) relevantly prohibit an education provider from:

(a)    failing to make reasonable adjustments for a person (the aggrieved person) on the ground of a disability of the aggrieved person;

(b)    where the failure to make the reasonable adjustment 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;

(c)    in the development of curricula or training courses having content that will either exclude the person from participation, or subject the person to any other detriment.

The pleading in the ASOC

32    It is alleged that the respondent failed to make the following reasonable adjustments for her throughout the entirety of the relevant period:

(a)    full time one to one assistance from an aide or staff member for classes in each of her academic subjects; and

(b)    formal remedial literacy and numeracy programs (examples of which are said to include but are not limited to “MultiLit”, “Direct Instruction”, “Spalding” and “Jolly Phonics”): paras 15 and 16.

33    The failure to make these “reasonable adjustments” is alleged to have resulted in the applicant being treated less favourably than students:

(a)    without auditory and visual processing/short term memory deficit, post-traumatic stress disorder, severe anxiety syndrome/anxiety disorder, borderline IQ/mild intellectual disability and language impairment (paras 15, 16 and 5(a), (b), (f), (g) and (h)); and

(b)    who are attending secondary school classes in a Victorian government school and “cannot access the curriculum” and are “disengaging from school” (paras 15A and 16).

34    It is alleged further that the failure to make these “reasonable adjustments” thereby required the applicant “to access curriculum/courses having content that excluded her from participation, and subjecting her to a detriment”: para 16.

Decision

35    These allegations are embarrassing for the following reasons:

(a)    It is not pleaded that these adjustments should have been made;

(b)    Nor is it pleaded these adjustments were “reasonable” for the applicant.

36    The use of examples does not clearly elucidate how s 5(2) is engaged or why such adjustments were “reasonable” for the applicant. An allegation that a “reasonable adjustment” is required must be pleaded with precision: Wade v State of Victoria [2012] FCA 400 at [6].

37    Further, as with the less favourable treatment allegation, the causal link between the alleged failure to make the adjustments and the applicant’s disabilities are missing: no material facts are pleaded to establish that the alleged failure to make the “reasonable adjustments” occurred because of the applicant’s disabilities.

38    Moreover, this pleading also suffers from the defect that it does not plead the next necessary causal link between the failure to make the adjustments and the effect that the applicant was treated less favourably than a person without her disabilities would have been treated in the relevant circumstances. Again for the reasons already given, the circumstances pleaded are too vague and imprecise.

39    Again, in para 16, there is a disconnect between the pleading and the elements of s 22(2A) of the Act in connection with the alleged failure to make reasonable adjustments. In the applicant’s written submissions, it was put that:

The Applicant’s position is that the curriculum as presented to her was inaccessible, as the content was above her level of understanding at all times during the period of the complaint. The application of the respondent’s policies, procedures and guidelines would have provided the respondent with a formal basis to identify, monitor and review the reasonable adjustments claimed in paragraph 16, which would have created circumstances where the curriculum was accessible to the Applicant.

If that be the intended pleading, it is not pleaded that way and para 16 should be re-pleaded. Even then, it is not clear how it is said that s 22(2A) would be engaged as the applicant has not made any allegation about the respondent’s development or accreditation of curricular or training courses.

Claims of indirect discrimination based on sections 6, 22(2) and 22(2A)

The legislative framework

40    Section 6 prior to amendment on and from 5 August 2009 provided:

For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

41    Section 6(1) after amendment provides:

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.

42    Sections 6 and 22(2) of the Act relevantly prohibited an educational authority (prior to 5 August 2009) from requiring a person (the aggrieved person) to comply with a requirement or condition:

(a)    with which a substantially high proportion of persons without the disability comply or are able to comply;

(b)    which is not reasonable having regard to the circumstances of the cases; and

(c)    with which the aggrieved person does not or is not able to comply;

(d)    by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority or subjecting the student to any other detriment.

43    Sections 6(1) (after amendment) and 22(2) of the Act relevantly prohibited an educational authority (on and after 5 August 2009) from requiring a person (the aggrieved person) to comply with a requirement or condition:

(a)    when because of a disability the aggrieved person does not or would not comply, or is not able or would not be able to comply;

(b)    when the requirement or condition has or is likely to have the effect of disadvantaging persons with the disability;

(c)    by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority or subjecting the student to any other detriment.

44    Sections 6(1) (after amendment) and 22(2A) of the Act relevantly prohibited an educational authority (on and after 5 August 2009) from requiring a person (the aggrieved person) to comply with a requirement or condition:

(a)    when because of a disability the aggrieved person does not or would not comply, or is not able or would not be able to comply;

(b)    when the requirement or condition has or is likely to have the effect of disadvantaging persons with the disability;

(c)    by developing curricula or training courses having content that will either exclude the person from participation, or subject the person to any other detriment; or

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

45    It is well-established that the actual requirement or condition should be formulated with some precision: Walker v State of Victoria (2011) 279 ALR 284; [2011] FCA 258 at [194].

The pleading in the ASOC

46    The three requirements or conditions pleaded were:

(a)    A requirement or condition that the applicant undertake her learning and complete her education without the benefit of full time one to one assistance from an integration aide or staff member in class in each of her academic subjects (“the no one to one assistance requirement”): paras 8, 17 and 21;

(b)    A requirement or condition that she undertake her learning and complete her education without the benefit of “regular comprehensive formal needs assessments” (“the no regular comprehensive formal needs assessments requirement”): paras 9 and 19; and

(c)    A requirement or condition that she undertake her learning and complete her education without the benefit of “remedial literacy and numeracy programs” (“the no remedial literacy and numeracy programs requirement”): paras 18 and 22.

Decision

47    It was submitted for the respondent in reliance on Abela v State of Victoria [2013] FCA 832 that the allegations made are not allegations of indirect discrimination. In Abela, Tracey J stated at [83]-[85]:

The distinction between direct and indirect discrimination was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 392, in these terms:

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. ... 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.

See also at 357 (per Mason CJ and Gaudron J); New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission [2001] FCA 1199; (2001) 186 ALR 69 at 77-8 [39], [40] (per Emmett J).

The distinction is important because the definitions of direct and indirect discrimination in the DDA are mutually exclusive: cf Australian Medical Council v Wilson (1996) 68 FCR 46.

The requirements or conditions with which s 6 of the DDA is concerned are requirements or conditions which have general application but which bear oppressively on a particular cohort or group which the legislation is designed to protect. Relevantly that group or cohort comprises persons suffering from some form of disability which is comprehended by the Act. Thus, a requirement that students at a school should utilise a toilet in a building other than the one in which their classroom was located was found to be discriminatory against disabled students who, by reason of physical disability, regularly required urgent access to a toilet: see Travers v New South Wales [2001] FMCA 18; (2001) 163 FLR 99. Similarly, a requirement that all students attending a school should comply with the school discipline policy was found to be discriminatory against students who suffered from the psychological condition of “conduct disorder”, the manifestations of which rendered them incapable of compliance: see Minns v New South Wales [2002] FMCA.

Tracey J went on to find in that case that the indirect discrimination case pleaded did not allege any terms or conditions, within the meaning of s 6 of the Act, which were of general application or which are “facially neutral” but rather were complaints that the respondent had failed to act in particular ways in response to the applicant’s particular disability-related needs.

48    The applicant contended that Abela is a single judge decision which is presently on appeal and, in any event, is distinguishable. At this stage of the proceeding I would not be disposed to strike out the allegations of indirect discrimination on the basis that none of the three alleged requirements or conditions is capable of founding a claim of indirect discrimination under the Act. The power to strike out a pleading on the basis of disclosing no reasonable cause of action is to be exercised only in a plain and obvious case and requires establishing that the statement of claim does not disclose a reasonable cause of action by showing that the applicant’s case is so untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-30. There are a number of deficiencies in the allegations and the applicant should have an opportunity to re-plead so that the precise form of the claims can be considered before forming any view about whether the proposed claims are capable of being advanced.

49    First, the no one to one assistance allegation is unclear in that it does not specify the nature of the one to one assistance that the applicant is alleged to have required in each of her academic subjects across the relevant period. The no remedial literacy and numeracy programs allegation is also unclear in that it does not specify the nature of the programs that the applicant is alleged to have required across the relevant period.

50    Next, there is a general and imprecise assertion that due to the applicant’s disabilities and “the impediments those disabilities posed to her learning” the applicant could not comply with the requirements (paras 12A, 20 and 22C). These allegations are too general and lacking in sufficient specificity. Contrary to the submission for the applicant, reliance on paras 5 and 6 does not cure the deficiency because the form of the pleading does not make clear what the pleaded facts are that prevented the applicant from complying with the requirements.

51    Finally, the claim based on s 22(2A) as pleaded is also deficient as the form of the pleading does not engage the terms of s 22(2A). It suffers from the same defects as the related paragraphs which do not actually articulate the applicant’s intended case.

ORDERS

52    There will be an order striking out paras 7 to 37 of the ASOC. The applicant will be given leave to re-plead and make application to file and serve a further amended statement of claim.

Associate:

Dated:    3 October 2014