FEDERAL COURT OF AUSTRALIA

Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Miranda Pallett, claims compensation and other relief for alleged discrimination in contravention of s 24 and s 29 of the Disability Discrimination Act 1992 (Cth) (DD Act).

2    The first named respondent is “Commonwealth of Australia, Department of Human Services – Centrelink”. I will refer to it as the Department. The second respondent, Jacqui Boland, and the third respondent, Suzanne Taylor, are employees of the Commonwealth assigned to the Department. Unnamed officers of the Department refused applications made by Ms Pallett in July 2013 for certain social security benefits. In April 2014, Ms Pallett requested an internal review of the refusal decisions, and sought an extension of time in which to seek the review. Ms Taylor handled the review and upheld the refusal decisions. Ms Pallett then made written complaints to the Department about Ms Taylor’s conduct. The complaints were handled by Ms Boland.

3    Ms Pallett does not challenge the merits of the decision to refuse her applications for the benefits, nor does she argue that her applications for the benefits, or her application for an internal review, would necessarily have been allowed were it not for the conduct complained of in this proceeding. Rather, she alleges that the respondents treated her poorly when dealing with her applications and her complaints. She contends that the poor treatment constitutes unlawful discrimination within the meaning of s 5 and s 6 of the DD Act and that she has suffered, among other things, hurt and humiliation as a result.

4    For the reasons that follow, the application should be dismissed.

JURISDICTION and procedure

5    Ms Pallett brings this application pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), having first made a complaint to the Australian Human Rights Commission. The complaint was terminated under s 46PH of the AHRC Act. The unlawful discrimination alleged in this application is the same in substance as the subject matter of the terminated complaint, or otherwise arises out of substantially the same act, omissions or practices forming the subject of the complaint: AHRC Act, s 46PO(3). Accordingly, this Court has jurisdiction to hear the claim.

6    In these proceedings, the Court is not bound by technicalities or legal forms: AHRC Act, s 46PR. The Evidence Act 1995 (Cth) nonetheless applies, as do the rules of procedural fairness. Ms Pallett’s claim must be established to the civil standard of proof, having regard to the matters referred to in s 140 of the Evidence Act.

THE CLAIMS

The pleaded disabilities

7    Section 24 of the DD Act provides that it is unlawful for a person who provides services (whether for payment or not) to discriminate against another person on the ground of the other person’s disability, including in the manner which the services are provided. “Services” are defined, non-exhaustively, to include services of the kind provided by a government, a government authority or a local government body: see s 4.

8    Section 29 provides:

29    Administration of Commonwealth laws and programs

It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

9    The word “discriminate” has the meaning given in s 5 and s 6 of the DD Act. Both provisions are relied upon by Ms Pallett:

5    Direct disability discrimination

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

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

6    Indirect disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

10    Section 4 of the DD Act defines the word “disability” as follows:

disability, in relation to a person, means:

(a)    total or partial loss of the person’s bodily or mental functions; or

(b)    total or partial loss of a part of the body; or

(c)    the presence in the body of organisms causing disease or illness; or

(d)    the presence in the body of organisms capable of causing disease or illness; or

(e)    the malfunction, malformation or disfigurement of a part of the person’s body; or

(f)    a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)    a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)    presently exists; or

(i)    previously existed but no longer exists; or

(j)    may exist in the future (including because of a genetic predisposition to that disability); or

(k)    is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

11    I will refer to this as the disability definition. I have emphasised those parts which are to be considered later in these reasons.

The pleaded disabilities

12    Ms Pallett alleges the following facts in support of her claim that she suffers from disabilities falling within the disability definition (Statement of Claim (SOC), [2] — [4]):

2.    Since about 2005 the applicant has been diagnosed with and suffering from anxiety and depression.

3.    From about 2007 she has been diagnosed with and suffering from avoidant personality disorder.

4.    The applicant has been advised that she likely also suffers from attention deficit disorder, non-hyperactive type.

13    It is alleged that as a result of suffering from the disabilities, Ms Pallett cannot do certain things as quickly, as well, or as effectively as she could if she did not suffer from the disabilities (SOC [6]), namely:

(1)    process or remember information, particularly information provided verbally;

(2)    respond to questions raised verbally or otherwise cope with direct questioning;

(3)    cope with stressful situations; and

(4)    develop rapport and communicate with persons previously unknown to her.

14    She further alleges that, by reason of her disabilities, she is unable to manage her affairs without the assistance of a support person. She claims that the disabilities, and the difficulties that are said to be symptoms or manifestations of them, persisted at the time that the acts alleged against the respondents occurred. On Ms Pallett’s case, the relevant time is the period between 1 July 2013 and 25 July 2014.

Acts alleged against the respondents

15    Ms Pallett is a 47 year old sole parent with two children; a daughter born in 2011 and a son born in 2013. After the birth of her daughter, she applied for and received social security benefits known as Paid Parental Leave (PPL) and Parenting Payment Single (PPS). After the birth of her son, Ms Pallett applied for PPL and PPS, together with other benefits known as the Baby Bonus and Family Tax Benefit (FTB). In applying for all of those benefits, Ms Pallett had a number of dealings with the respondents which now form the subject matter of this action.

16    The legal framework explaining the existence of the Department and its responsibilities under the social security regime are conveniently summarised in the respondents’ defence at [11] in the following terms:

11.1.    … the PPL claim was made to the Secretary (the Secretary) of a Department of State of the Commonwealth, namely the then Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), with responsibility for administering, under the ultimate responsibility of the relevant Minister, the Paid Parental Leave Act 2010 (Cth) (the PPLA).

11.2.    … by instrument of general delegation, dated 21 September 2012, the Secretary of the Department of FaHCSIA delegated under s 303(2) of the PPLA all powers under the PPLA other than those in Div 3 and 5 of Pt 4-2 and s 128(1)(b) to the person appointed as, or for the time being performing duties of, the Chief Executive Centrelink.

11.3.    … the Chief Executive Centrelink, within the meaning of s 3 of Human Services (Centrelink) Act 1997 (Cth) (the Centrelink Act), had service delivery functions under s 8A of the Centrelink Act which included the provision of ‘benefits’ under that Act.

11.4.    … by an Administrative Arrangements Order (AAO) relevantly signed by the Governor-General of the Commonwealth of Australia on 16 May 2013, the Department of Human Services (the Department) was created to deal with matters which included monitoring and management of service delivery arrangements involving social security.

17    The five alleged incidents of unlawful discrimination (as pleaded in the SOC and later clarified in the course of submissions) are:

(1)    The Department “generally required” Ms Pallett to deal with officers over the telephone or in face to face interviews. Ms Pallett requested that she deal with the Department in writing rather than by telephone or face to face. Ms Boland, Ms Taylor and other employees assigned to the Department refused Ms Pallett’s requests: see SOC [25] – [29] and [51]. This conduct is said to constitute direct discrimination within the meaning of s 5(2) or, alternatively, indirect discrimination within the meaning of s 6(2) of the DD Act. I will refer to this allegation as the writing complaint.

(2)    The Department “generally required” Ms Pallett to deal with its various officers rather than a single case manager or contact person. Ms Pallett requested that she be allowed to have a single contact person to deal with within the Department. Her requests were refused by officers of the Department: see SOC [30] – [34]. This conduct is said to constitute direct discrimination within the meaning of s 5(2), or, alternatively, indirect discrimination within the meaning of s 6(2) of the DD Act. I will refer to this allegation as the single contact complaint.

(3)    In dealing with Ms Pallett, the Department “generally required” her to deal with the Departmental officers personally. Ms Pallett requested that the Department make arrangements to only deal with her in the presence of a support person. Her requests were refused: see SOC [35] – [43] and [54]. This conduct is said to constitute direct discrimination within the meaning of s 5(1) and/or s 5(2) of the DD Act. I will refer to this allegation as the support person complaint.

(4)    When her application for PPL payments was refused, Ms Pallett sought an internal review of the decision. Her application was made outside the time limit imposed by the Paid Parental Leave Act 2010 (Cth) (PPL Act). The PPL Act conferred a discretion on the Secretary of the Department (or his or her delegate) to extend the time to make an internal review application. Ms Pallett made a written application for an extension of time. The application was handled by Ms Taylor. In determining the application for an extension of time, and in otherwise upholding the refusal decisions, Ms Taylor placed less value on Ms Pallett’s statements and arguments than she would have placed on the same statements and arguments if advanced by a person without Ms Pallett’s disabilities: see SOC [48] – [54], [56]). This conduct is said to constitute an act of direct discrimination within the meaning of s 5(1) of the DD Act. I will refer to this allegation as the less weight complaint.

(5)    In dealing with the applicant’s application for internal review, Ms Taylor told Ms Pallett that she “treat[s] everyone the same”, and Ms Taylor did, in fact, treat Ms Pallett the same as other complainants not suffering from Ms Pallett’s disability. See SOC [48] — [55]. This conduct is said to constitute an act of indirect discrimination within the meaning of s 6(2) of the DD Act. I will refer to this allegation as the same treatment complaint.

18    Ms Pallett’s requests forming the subject of the writing complaint, the single contact complaint and the support person complaint are alleged have been requests for reasonable adjustments necessary to ensure that she “was not treated less favourably than a person without her disability would be treated in circumstances that are not materially different”: SOC [27], [32] and [41].

Loss and remedies

19    Ms Pallett alleges that she has suffered hurt, distress, humiliation, loss and damage as a result of the manner of her treatment. The claimed humiliation and distress arises out of (among other things) a “reduced capacity to properly and fully respond to matters put to her by officers of the [Department] and to particularise and advance arguments in support of her position on internal review”. She seeks declarations of contravention, an award of damages and an order that the respondents give her an apology. The claim for an award of damages is not quantified.

sectionS 24 AND 29 of the dd aCT

20    The respondents deny that they were involved in the provision of services to Ms Pallett within the meaning of s 24 of the DD Act. For reasons that will become apparent, it is not necessary to determine that question.

21    I am satisfied that the conduct complained of is conduct engaged in by the respondents in the course of performing functions or exercising powers or otherwise in the discharge of responsibilities for administering Commonwealth laws. The relevant laws are those that provide for the payment of social security benefits and that establish the framework in which applications for such benefits are to be made, decided and reviewed. Section 29 of the DD Act will be engaged if it can be shown that the respondents discriminated against Ms Pallett on the ground of Ms Pallett’s disability in the performance of the relevant functions, the exercise of the powers or the discharge of the responsibilities, as the case may be.

PROOF OF DISABILITIES

22    Ms Pallett was put to proof on her allegation that she suffered from the pleaded disabilities and on her allegation that the disabilities affected her in the particular ways she alleged.

23    There are four disabilities pleaded: anxiety, depression, avoidant personality disorder and attention deficit disorder (non-hyperactive type). The first three are alleged to have been the subject of medical diagnoses. The fourth is one that, it is alleged, Ms Pallett has been “advised that she likely” suffers from. Ms Pallett said in evidence that the advice was given by a psychologist to whom she had been referred.

24    Ms Pallett did not call a medical practitioner to give evidence about the diagnoses or advice she had received about the disabilities. She relied instead on her affidavit and the documents annexed to it, together with other documents tendered at trial. The respondents object to some parts of the affidavit and the admission into evidence of some of the documents. With the consent of the parties, rulings on the respondents’ objections were deferred and the parties made detailed submissions in closing as to both the admissibility and use of the evidence.

25    It is convenient to reproduce in full the critical part of Ms Pallett’s affidavit concerning the existence and diagnoses of the disabilities, with added emphasis to indicate those parts of the evidence that are objected to:

3.    I suffer from various mental illnesses.

HISTORY OF MENTAL ILLNESS

4.    In about 2007 I was diagnosed as suffering from anxiety and depression by my general practitioner, Dr Grace Yuen.

5.    Dr Yuen referred me to psychologist Penny Janis under a mental health care plan. Dr Janis agreed with Dr Yuen’s diagnosis of anxiety and depression. Annexed hereto and marked ‘MJP-1’ are copies of the only three mental health care plans under which I have been treated by Penny Janis.

6.    During the course of the mental health care plan, Ms Janis told me that she thought I also suffered from avoidant personality disorder.

7.    From March 2013 to November 2014, initially as a public patient following the birth of my second child and then for the last six months under the terms of a mental health care plan, I was under the care of Dr Ros Powrie, a psychiatrist from the Women's and Children's Hospital (‘WCH’).

8.    In September 2013, I was placed on the waitlist for inpatient treatment at the mother and baby unit of Glenside Psychiatric Hospital.

9.    Since the birth of my first child, I have been on various other waitlists in order to obtain assistance to manage my activities of daily living and to look after and care for my children.

10.    On 16 June 2014 the WCH provided a letter setting out the effects of my mental illness for me to use in a matter I had before the Social Security Appeals Tribunal (‘SSAT’) at that time. The letter is from Lynly Mader because Dr Powrie was on leave at the time. Annexed hereto and marked ‘MJP-2’ is a true copy of that letter.

11.    In September 2015, Dr Desmond Shimeld, who I saw instead of Dr Yuen because of his availability at short notice, referred me to psychiatrist Dr Rajan Singh under a further mental health care plan. Dr Rajan Singh has advised me that I may also suffer from attention deficit disorder, non-hyperactive type. Annexed hereto and marked ‘MJP-3’ is a true copy of that letter and mental health care plan.

12.    As a result of my mental illness, I require significant support just to manage the day to day tasks of living and looking after myself and my children.

26    Ms Pallett goes on to identify the particular difficulties she experiences. Some of the difficulties are consistent with those pleaded at [6] of the SOC to which I have referred earlier in these reasons. Ms Pallett’s affidavit does not specify which particular difficulties are attributable to which of the various disabilities pleaded at [2] – [4] of the SOC. That deficiency will not be significant, provided that it can be shown that the disabilities collectively existed and that the difficulties Ms Pallett experienced were symptoms of all or any of them.

27    In addition to her affidavit and the documents annexed to it, Ms Pallett tendered additional documents, two of which are objected to. They are a mental health care plan prepared by Ms Pallett’s general practitioner dated 31 May 2012 and a letter from the Women’s and Children’s Hospital to Ms Pallett dated 12 April 2014.

Objections and submissions

28    The respondents’ submissions go to questions of admissibility, use and weight of the evidence. Considerations of weight are deferred to later in these reasons.

29    As to admissibility, the respondents submit that the documents are tendered for a hearsay purpose and are therefore inadmissible under s 59 of the Evidence Act. In addition, they rely on s 76(1) of the Evidence Act, which establishes what is known as the “opinion rule”:

76    The opinion rule

(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

…

30    It is argued that a finding that Ms Pallett suffered from mental illnesses cannot be properly made except on the basis of admissible expert evidence, particularly the evidence of a person with specialised knowledge and expertise in the areas of diseases, illnesses or disorders affecting the mind, so as to bring the evidence within the exception to the opinion rule in s 79 of the Evidence Act. It provides:

79    Exception: opinions based on specialised knowledge

(1)    If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

31    The respondents also referred to a General Practice Note issued by the Chief Justice in relation to expert witnesses giving evidence of an opinion based wholly or substantially on specialised knowledge: see Practice Note CM 7, effective 4 June 2013 to 24 October 2016 (24 October 2016 being the first day of trial in this matter) and GPN-EXPT, effective from 25 October 2016 (the Note). The Note prescribed some of the matters a report prepared by an expert witness should contain and imposed other requirements as to form. Rule 23.11 of the Federal Court Rules 2011 provides that a party may call a witness to give expert evidence at a trial only if the party has, amongst other things, delivered an expert report that complies with r 23.13 to all other parties. Rule 23.13(1)(h) of the Rules relevantly provides that an expert report must comply with the Note. Ms Pallett could not, it was submitted, adduce evidence of the opinion of a medical practitioner without calling the medical practitioner and delivering an expert report in accordance with the Rules.

32    Counsel for Ms Pallett advanced the following propositions as to why the documents she relied upon should be admitted in evidence as sufficient proof of the disabilities and their effects, notwithstanding that she did not call a medical practitioner to give evidence in her case:

(1)    The evidence is admissible for non-hearsay and non-opinion purposes and accordingly is admissible for all purposes in accordance with s 60 and s 77 of the Evidence Act. These provisions are extracted at [47] below.

(2)    The DD Act, insofar as it applies in cases of disabilities affecting the mind, does not require proof of a diagnosis of a specific recognised psychiatric disorder or impairment (whether diagnosed by reference to the Diagnostic and Statistical Manual of Mental Disorders or otherwise. The DD Act is intended to extend beyond recognised psychiatric impairment to include “a wide range of less specific mental illnesses”.

(3)    Provided that the existence of a psychological disorder could be proven, it was not necessary to identify its precise nature: Watts v Australian Postal Corporation (2014) 222 FCR 220.

(4)    The calling of expert evidence is not a pre-requisite to success in an application alleging a contravention of the DD Act, as demonstrated by the decision of the Full Court in Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207.

(5)    Having regard to the beneficial nature of the DD Act and the requirement in s 46PR of the AHRC Act, courts determining applications alleging unlawful discrimination should be slow to “unnecessarily put applicants to the indignity of proving through independent medico-legal examination and the calling of expert witnesses that they do in fact suffer from the very disabilities and symptoms that give rise to their claims of unlawful discrimination”.

33    I will deal with the general import of the parties’ submissions before turning to rule on the specific objections.

34    In the analysis that now follows, I have focussed, as did the parties’ submissions, on para (g) of the disability definition. I would arrive at the same conclusions in respect of para (a). Paragraph (k), which refers to an imputed disability, is considered separately at [112] – [117] below.

The decision in Watts

35    In Watts, Mortimer J found that an applicant alleging unlawful discrimination in contravention of the DD Act had a “disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment … within the meaning of s 4(1)” of the DD Act (at [227]; see also at [10] and [70]). The respondent in that case had not contended otherwise (see at [228]). There was evidence before Mortimer J to the effect that the applicant had been the subject of conflicting or varying diagnoses. However, it was unnecessary for her Honour to identify with precision the name of the disorder, illness or disease because its existence was not in dispute, nor was its effect on the applicant’s thought processes, perception of reality, emotions or judgment. The finding that there was a disability as defined by s 4(1) of the DD Act was sufficient in that case to permit resolution of the remaining issues. Further findings as to its name and nature were unnecessary on the facts.

36    The decision in Watts does not assist Ms Pallett so far as the admissibility of her evidence is concerned. As I have said, this case is one in which the existence and effect of the pleaded disabilities is disputed. Moreover, the difficulties pleaded at [6] of the SOC must be shown to be difficulties experienced by Ms Pallett by reason of the disabilities themselves. This case is not one in which the connection between the difficulties and the disabilities can be readily identified by the Court bringing to bear its ordinary understanding and experience. I will elaborate on these considerations later in these reasons.

37    At least in cases where para (g) of the disability definition is relied upon, Watts does not lay down any general proposition to the effect that something other than a “disorder, illness or disease” might be shown. The submission that the DD Act is intended to extend “beyond recognised psychiatric impairment” to include a “wide range of less specific mental illnesses” to my mind addresses an issue that does not arise in this case. Ms Pallett has pleaded specific mental illnesses. The illnesses are named and they are said to be the subject of medical diagnoses and advice. The difficulties suffered in connection with them are pleaded with some precision. The facts alleged by Ms Pallett do not require the Court to determine the outer limits of the disability definition.

The decision in Mulligan

38    In Mulligan, the applicant claimed that an airline (Virgin) unlawfully discriminated against him by reason of his disabilities, which included cerebral palsy and vision impairment. The alleged unlawful discrimination consisted of Virgin's refusal to allow Mr Mulligan to board a flight with an assistance dog. His claim was dismissed at first instance, although the primary judge admitted into evidence a number of documents bearing some resemblance to the documents in issue in Ms Pallett’s case, and the disabilities were found to have been proven. On appeal, Virgin contended that the primary judge had erred in admitting the documents. The Full Court rejected the contention.

39    It is submitted for Ms Pallett that the documents in issue in Mulligan are analogous in some respects to the documents in issue in this case, and that the Full Court’s rejection of Virgin’s submissions supports a less stringent approach to the rules of evidence than that advanced by the respondent. Three of the documents in issue in Mulligan may be mentioned.

40    The first was a letter written on the letterhead of the Coffs Harbour Dog Training Club Inc, which stated, among other things, that Mr Mulligan’s dog assisted him with his sight difficulties. The Full Court held that that statement was hearsay evidence for the purposes of s 59 of the Evidence Act because it was evidence of a previous representation of fact, namely Mr Mulligan’s sight difficulties. The Court continued (at [119(b)]):

As such, it is prima facie admissible under the exceptions to the hearsay rule specified in s 69 as a business record. That section applies because the authors might reasonably be supposed to have had personal knowledge of the asserted facts based on what the authors saw, heard or otherwise perceived: s 69(2) and (5). However, the statement is also an expression of an opinion by the authors because it is ‘an inference from observed and communicable data’ (Lithgow City Council v Jackson (2011) 244 CLR 352 (Lithgow City Council) at [10], citing Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75, and Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association (NSW and ACT) (1998) 154 ALR 527 at 532). In other words, the authors inferred that Mr Mulligan had sight difficulties based on their observations of him. Lithgow City Council establishes at [19] that the opinion rule in s 76 of the Evidence Act applies to hearsay notwithstanding that it may fall within the exception stated in s 69. Accordingly, in circumstances where it is not suggested that s 77, s 78A or s 79 applies in the circumstances of this case, the only basis upon which the statement was admissible was s 78.

41    Section 78 of the Evidence Act provides that the opinion rule in s 76 does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event (s 78(a)) and evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event (s 78(b)). The Full Court held that the letter in issue was admissible under that exception because it related to a matter (being Mr Mulligan’s sight difficulties) that the authors of the letter witnessed in the relevant sense. The Full Court said (at [119 (b)(ii)] – [119 (b)(iii)]):

(ii)    the statement … complies with s 78(a) because it falls within the category of evidence described in Lithgow City Council at [45]-[46], namely where ‘the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separated and distinctly narrated’. It is similar in character to the examples given in Lithgow City Council at [48] about a person being drunk, middle-aged or angry; and

(iii)     it also complies with s 78(b) because it is improbable that, five years after the letter was written, the authors would be able to recall the primary facts upon which their opinion was based and it is therefore necessary to admit it into evidence to obtain an adequate understanding of their perceptions of Mr Mulligan’s sight difficulties (see Lithgow City Council at [53]-[54] and [57]);

42    The second document was an email sent by Mr Mulligan to a representative of Virgin at the time of the alleged discriminatory conduct in which he stated he had been granted permission to hold a National ID card from Blind Citizens Australia, being a card that had been recommended to him by Guide Dogs Australia. The Full Court said that a “strong inference could be drawn from that statement that Mr Mulligan had a vision impairment which entitled him to carry such a card” (at [119(d)]).

43    The third document was a letter from a doctor dated 23 March 2009 which stated that Mr Mulligan had cerebral palsy and problems with his eyesight, which required him to use his assistant dog when travelling by rail. Of that document, the Full Court said (at [119(g)]):

… We consider that this document was properly admitted into evidence for substantially similar reasons to those given above in respect of the Coffs Harbour Dog Training Club Inc letter. To the extent that Dr Platt was expressing an opinion as to Mr Mulligan’s state of health, we consider that such evidence was admissible under s 79 (as opposed to s 78) of the Evidence Act. The fact that Dr Platt was not called to give evidence did not render her opinion inadmissible but could be relevant to its weight. In addition, the form and brevity of Dr Platt’s letter suggest that, in part, she was confirming what she had been told by Mr Mulligan concerning his disabilities. In those circumstances, the implicit representation by Mr Mulligan which underpinned Dr Platt’s stated opinion would fall within the exception in s 66A of the Evidence Act to the hearsay rule, which exception applies to first-hand contemporaneous representations (see s 62(3) of the Evidence Act) by a person about their ‘health, feelings, sensations, intention, knowledge or state of mind’ (see SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483 at [33] per Perram J and Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2014) 316 ALR 590 at [206]-[207] per Murphy J).

44    The Full Court considered other documents had been properly admitted under s 66A of the Evidence Act, including an email Mr Mulligan had sent to Virgin at the time of the contraventions in which he said he had “a number of disabilities … Cerebral Palsy and eyesight loss being the two main ones” (at [119(e)]). The statement was, the Full Court held, a first-hand contemporaneous statement by Mr Mulligan as to the state of his health.

45    The admission into evidence of the letter from Mr Mulligan’s doctor under s 79 of the Evidence Act supports Ms Pallett’s submission that, speaking generally, a claim founded on a contravention of the DD Act may be proven without calling an expert and without compliance with the required formalities for expert report provided for in the Note. That would be consistent with the imperative in s 46PR of the AHRC Act that the Court not be bound by technicalities and form.

46    It must nonetheless be recognised that the requirements of s 79 of the Evidence Act must be fulfilled in cases where that exception to the opinion rule is relied upon and, critically for Ms Pallett, there practical requirements of form inherent in s 79 itself. The requirements were recognised by Gleeson CJ in HG v The Queen (1999) 197 CLR 414 at [39]:

The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie’s written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.

(footnote omitted)

47    There is otherwise nothing in Mulligan to support the proposition that the standard of proof or the rules of evidence in proceedings of this kind are altered or may otherwise be dispensed with. To the contrary, the Full Court in that case identified with care and precision the applicable provisions of the Evidence Act upon which admissibility turned, particularly the hearsay and opinion rules in s 59 and s 76 respectively. The admission of documents into evidence in Mr Mulligan’s case depended upon whether exceptions to those rules of evidence applied. Although the same is true here, it is appropriate to observe this caution when considering the rulings in Mr Mulligan’s case against the rulings now sought by the parties in relation to Ms Pallett’s claim:

… The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context …

See Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Non-hearsay and non-opinion purposes

48    It is argued that evidence to the effect that Ms Pallett was told in out of court statements that she suffers from various mental illnesses is admissible for the non-hearsay and non-opinion purpose of proving Ms Pallett’s subjective belief that she suffered from the particular disabilities alleged in her pleading. Her subjective beliefs, it was submitted, were relevant to the question of remedies, particularly in respect of her claim to have suffered humiliation and distress as a result of the alleged unlawful discrimination. Accordingly, it was argued, the evidence may be admitted under the exceptions to the hearsay and opinion rules in s 60 and s 77 of the Evidence Act, which provide:

60    Exception: evidence relevant for a non-hearsay purpose

(1)    The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2)    This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).

Note:    Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3)    However, this section does not apply in a criminal proceeding to evidence of an admission.

Note:    The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.

77    Exception: evidence relevant otherwise than as opinion evidence

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

49    Subject to one qualification, I accept the argument that evidence of Ms Pallett’s subjective beliefs as to the existence and effect of the disabilities would be relevant on the issue of remedies, particularly the question of whether (and to what extent) Ms Pallett suffered distress and humiliation as a result of the conduct alleged against the respondents (SOC [57.1]). The qualification is that it must be shown, for the purpose of remedies, that Ms Pallett’s subjective beliefs coincided with the objective facts about her illnesses, particularly as to the existence of the illnesses at relevant points in time. If it cannot be established on the objective facts that Ms Pallett in fact had the disabilities alleged, then evidence of any subjective belief she might have held as to the existence of the disabilities would in my judgment be irrelevant. Accordingly, I do not consider Ms Pallett is assisted by s 60 or s 77 of the Evidence Act, at least insofar as proof of the respondents’ liability is concerned. It was for this reason that I admitted evidence relevant to Ms Pallett’s subjective beliefs provisionally under s 57 of the Evidence Act in the course of the trial.

50    Insofar as the evidence is admissible for other non-hearsay or non-opinion purposes, it would be necessary to consider whether use of the evidence should nonetheless be limited to its non-hearsay and non-opinion purposes in the exercise of the discretion conferred by s 136 of the Evidence Act. It provides:

136    General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing.

51    The discretion conferred by s 136 may only be exercised if the conditions specified in (a) or (b) are met. Ms Pallett’s submissions raise an issue as to whether, if the requirements are met, the discretion should not be exercised having regard to the nature of the proceedings and the imperative in s 46PR of the AHRC Act that the Court not be bound by technicalities and legal forms.

Is expert evidence necessary to prove a mental illness?

52    The question of whether a person suffers from a disability within the meaning of the disability definition is a question of fact. In some instances, a conclusion that a person suffers from a disability may be founded upon matters that are readily observable or commonly understood. The total or partial loss of an ordinarily visible part of a person’s body is an obvious example: see para (b) of the disability definition. Similarly, a finding that there exists a malfunction of a part of a person’s body may in some cases be based (whether directly or inferentially) on the evidence of the person as to his or her health, perceptions or personal experiences. For example, evidence given by a person to the effect that he or she is blind may, if accepted, readily support an inference that a part of the person’s body has malfunctioned. That inference would be available even if the person was not qualified to give a medical opinion as to the physiological cause of his or her blindness, or the precise part of the body that has malfunctioned. In cases where nothing in dispute turns on it, precise identification of the malfunctioning part of the body or the medical name attaching to a disability will not be necessary.

53    Different considerations arise when the fact to be proven is a loss of function or other condition affecting the mind. In R v Perry (1990) 49 A Crim R 243, Gleeson CJ said (at 249):

As a general rule witnesses may only give evidence of that which they have observed. Inferences from observed facts, or opinions, are not ordinarily receivable in evidence. One of the qualifications to that general rule relates to expert opinions on matters not within the ordinary experience of unqualified persons. The courts will receive the relevant opinions of witnesses possessing particular qualifications when the subject matter is such that inexperienced persons are unlikely to be capable of forming a correct judgment upon it without expert assistance: Clarke v Ryan (1960) 103 CLR 486; D Byrne and JD Heydon, Cross on Evidence (3rd Aust ed, 1986), Ch 15. Whether a given topic is susceptible of becoming the subject of expert evidence may give rise to debate: cf Murphy (1989) 167 CLR 94; 40 A Crim R 361. There is, however, no doubt that psychiatry is such a topic.

54    His Honour was there concerned to identify whether a particular subject matter was amenable to admissible expert evidence so as not to offend what is known as the common knowledge rule at common law (a rule modified, if not abolished, by s 80 of the Evidence Act). His Honour is not to be understood as saying that questions concerning the state of the mental health of a person will in all cases fall outside the knowledge and experience of a judge or other trier of fact, such that no conclusions of fact relevant to the topic may be made without the assistance of a psychiatrist or other suitably qualified practitioner. Whether the evidence of a psychiatrist or other medical practitioner is necessary to prove an alleged fact must depend on the nature of the fact to be determined in a particular case.

55    This Court may of course make findings of fact concerning the mental state or capacities of a person, including such matters as the person’s “thought processes, perceptions of reality, emotions or judgment”, as that expression is used in para (g) of the disability definition. The task of finding facts of that kind may be approached without the assistance of an expert. Clearly, Ms Pallett may give admissible evidence about her mental state at relevant times, her mental state being a question of fact, not a question of opinion: Seltsam Pty Ltd v McNeill [2006] NSWCA 158 at [123] per Bryson JA (Handley JA and Tobias JA agreeing), Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 at [65].

56    However, the case pleaded by Ms Pallett is not merely that she had a particular mental state at a particular time, but that she had a “disorder, illness or disease” that affected her mental state in a particular way. I will make three further observations concerning that aspect of Ms Pallett’s case before turning to rule on the respondents’ objections to her evidence.

57    First, an issue arises as to whether the difficulties experienced by Ms Pallett are manifestations of a disorder, disease or illnesses, as opposed to difficulties falling within the ordinary range of human responses to the strains and stresses of life. Even in the absence of a disorder, illness or disability, a person may be expected to suffer emotional or other mental responses of widely varying intensity and having widely varying impacts on their ability to function from time to time.

58    The inference that Ms Pallett’s thought processes or coping abilities were affected by a disorder, illness or disease to my mind involves an intermediary finding based on specialised knowledge of what constitutes a disorder, illness or a disease in a mental health context and what does not. The Court is not equipped with specialised knowledge to determine that question. As Mason CJ and Toohey J identified in Murphy v The Queen (1989) 167 CLR 94 at 111, it is not to be assumed that a trier of fact is able to recognise a distinction in all cases between (say) the reactions to the stresses of life that fall within a “normal” range, and those reactions that are the product or symptom of a disorder, illness or disease:

The question then is whether the evidence of Mr Sharpe was admissible expert evidence. In Reg v Turner Lawton LJ expressed the basis upon which expert evidence is received in terms about which there can be no quarrel:

‘An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.’

Later, Lawton LJ added some remarks which may not be so unquestionable:

Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.

There are difficulties with such a statement. To begin with, it assumes that ‘ordinary’ or ‘normal’ has some clearly understood meaning and, as a corollary, that the distinction between normal and abnormal is well recognized. Further, it assumes that the commonsense of jurors is an adequate guide to the conduct of people who are ‘normal’ even though they may suffer from some relevant disability. And it assumes that the expertise of psychiatrists (or, in the present case, psychologists) extends only to those who are ‘abnormal’. None of these assumptions will stand close scrutiny.

(footnotes omitted)

59    Second, Ms Pallett’s pleaded allegation is that her mental illnesses were diagnosed or otherwise notified to her by others. The implicit allegation is that those who diagnosed her were possessed of specialised knowledge upon which the opinion of the existence of a disorder, illness or disease may be based. Ms Pallett does not otherwise purport to have the specialised knowledge necessary to express an admissible opinion as to the existence of the mental illnesses by reference to her subjective mental state. She was reliant on what she had been told by her medical practitioners in that respect.

60    Third, some of the evidence adduced by Ms Pallett spans a period of time pre-dating and post-dating her dealings with the respondents. There is no evidence to indicate that the pleaded disabilities are permanent, or otherwise as to whether the fact or degree of difficulties allegedly caused by the disabilities may be assumed to remain constant over time. These are also matters that the Court cannot reliably assess on the basis of its own experience and understanding. Evidence of the existence of a mental illness at a time prior to the respondents’ impugned conduct may well be probative of the persistence of the same illness at the relevant time. The weight to be afforded to such evidence may be minimal having regard to the passage of time and the absence of expert evidence to assist the Court as to the inferences that may be drawn from the evidence in all of the circumstances.

Rulings on documents

Mental health care plans and GP referrals

61    Ms Pallett’s affidavit annexes four documents referred to as mental health care plans. The handwritten entries on the first of the plans are illegible. The date upon which the plan was prepared cannot be discerned. Its content was not otherwise explained in evidence. It has no probative value in the proceedings. It is irrelevant and, accordingly, inadmissible: s 56(2) of the Evidence Act.

62    The second mental health care plan forms an enclosure to a handwritten letter dated 17 October 2008. The letter is authored by Ms Pallett’s GP and addressed to a psychologist, Penny Janis. I interpret the GP’s handwriting as follows:

Dear Penny,

Thank you for your help with Miranda.

It looks like there has been much progress.

I have commenced her on Aropax 20mg/day, for her anxiety / depression / social anxiety / insomnia. I enclose copy of new mental health care plan.

Yours sincerely

63    The letter and its enclosures together form a record kept in the course of, and for the purposes of, the GP’s business. It contains a representation of fact that the GP prescribed medication to Ms Pallett and that the GP created a mental health care plan relating to Ms Pallett which was provided to the psychologist. The GP may reasonably be supposed to have had personal knowledge of those facts and, accordingly, the hearsay rule does not apply to the representations. The plan also contains assertions of fact as to the feelings and difficulties experienced by Ms Pallett at the time of the preparation of the plan. Insofar as they constitute assertions of fact made by the GP, it may be fairly inferred that the assertions are based upon information directly or indirectly supplied by Ms Pallett, being a person who had personal knowledge of the asserted facts. Accordingly, the hearsay rule does not apply to the representations.

64    The asserted facts are relevant and the evidence is therefore admissible, notwithstanding that the evidence predates the events in question by a considerable period of time (being a consideration of weight).

65    Ms Pallett submits that the GP’s cover letter is admissible as evidence of a medical opinion that she suffered, as at the date of the letter, from anxiety (including social anxiety), depression and insomnia. To the same effect, the medical health care plan enclosed with the letter contains a representation by the GP to the effect that the GP had, at that time, made a diagnosis of “low self-esteem / depression / social anxiety / anxiety”.

66    Evidence of the GP’s diagnoses is properly to be regarded as “evidence of an opinion ... to prove the existence of a fact about the existence of which the opinion was expressed”. The relevant fact is the existence of the illnesses forming the subject of the diagnoses. Unless the evidence falls within an exception to the opinion rule it is inadmissible under s 76 of the Evidence Act, notwithstanding that it might otherwise fall within an exception to the hearsay rule: Mulligan at [119(b)]; Lithgow City Council v Jackson (2011) 244 CLR 352.

67    As French CJ, Kiefel, Bell, Gageler and Keane JJ said in Honeysett v The Queen (2014) 253 CLR 122 at [23], the exception in s 79(1) of the Evidence Act is subject to two conditions:

first, the witness must have ‘specialised knowledge based on the person’s training, study or experience’ and, secondly, the opinion must be ‘wholly or substantially based on that knowledge. …

68    For Ms Pallett it is argued that s 183 of the Evidence Act enables the Court to draw inferences from the documents themselves so as to satisfy itself that the requirements of s 79 are fulfilled. In Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 the Full Court (Black CJ, Cooper and Emmett JJ) said this of the reliance of a party in that case on s 183 (at [19] – [ 20]) in connection with opinion evidence said to fall within the s 79 exception:

19    There was no explicit evidence as to any training, study or experience of any of the authors of the reports. However, Jetopay sought to have inferences drawn from the contents of the reports that the authors had specialised knowledge based on unspecified training, study or experience. Reliance was placed in that regard on s 183 of the Evidence Act which provides:

‘If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:

(a)    examine the document or thing; and

(b)    draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.’

20    Section 183 does not, however, dispense with proof of matters that needs to be provided before opinion evidence becomes admissible. Consistently with its terms, it merely enables the document to be examined and reasonable inferences to be drawn from such parts of it as are admissible or to which no objection has been taken. This in no way modifies the general rule that before opinion evidence is admissible, it must be demonstrated by admissible evidence on the voir dire that the requirements of s 79 have been satisfied.

69    The letter and its enclosure do not identify whether the GP’s opinion was based upon her training, study or experience, nor is it possible to determine whether the opinions are “wholly or substantially based on that knowledge” within the meaning of s 79 of the Evidence Act. Moreover, it is by no means clear whether the GP has, or even purports to have, specialised knowledge based on her training, study or experience in the field of disorders of the mind of the kind pleaded by Ms Pallett. In the absence of evidence bearing on the question, I am not prepared to assume that a person holding the qualifications of a GP possesses the requisite specialised knowledge to make a diagnosis of a mental illness of the relevant kind. Ms Pallett’s submission that the evidence is sufficiently analogous to the doctor’s letter considered by the Full Court to be admissible in Mulligan should be rejected. In that case, the inference was fairly open that the author of the doctor’s letter was qualified to express the opinions he or she did, on the basis of the specialised knowledge a court may infer is possessed by a GP. The Court is to make an assessment of admissibility on the basis of the material before it, having regard to the different facts in issue in this case.

70    In relation to s 78 of the Evidence Act, it has not been shown that the opinion of the GP was based upon what the GP personally saw, heard or otherwise perceived about a matter or event for the purposes of s 78(a), nor is it clear how evidence of the opinion is necessary to obtain an adequate account or understanding of the GP’s perception of the “matter”. The “matter” here in issue is Ms Pallett’s state of mental health, being a largely non-demonstrable complaint. I infer from the mental health care plan that any opinion formed by the GP was based not upon the GP’s personal perceptions, but on what was self-reported to the GP by Ms Pallett, being reports the GP accepted at face value. The opinion of the GP was not, in any event, relied upon by Ms Pallett as a “lay opinion” within the meaning of s 78.

71    I am not satisfied that the letter, insofar as it contains opinions, falls within the exceptions to the opinion rule in s 78 or s 79 of the Evidence Act.

72    If am wrong in so concluding, or if the evidence is admissible for opinion purposes under s 77 of the Evidence Act, I would nonetheless rule the evidence is to be limited to its non-opinion uses in the exercise of my discretion under s 136. There is, I am satisfied, a danger that the respondents would be unfairly prejudiced by the admission into evidence of the opinion. The danger arises because the respondents cannot discern with certainty the facts or knowledge upon which the GP’s opinion is based. Whilst some of the facts may be inferred from the documents themselves, there is nothing to suggest that the opinion was based upon only those facts that are stated in, or able to be inferred from, the document. These issues practically and forensically inhibit the respondents in the presentation of their defence to the claim, particularly their ability to disprove the fact about which the GP’s opinion is expressed. These issues are not to be regarded merely as questions of technicality or legal form: they go the fairness of the trial.

73    The third mental health care plan is dated 11 December 2009. Among other things, it records the facts that Ms Pallett had ceased the medication that had been prescribed in the previous year and that Ms Pallett had been referred to Ms Jarvis to “overcome anxiety feelings” and “to learn to promote self”. The document is, like the 2008 mental health care plan, a business record. The representations of fact to which I have referred are relevant and admissible. Insofar as diagnoses expressed in the document are admissible under s 77 of the Evidence Act, I would, for the same reasons given in respect of the 2008 plan and letter, limit it to its non-opinion uses.

74    The fourth mental health care plan is dated September 2015. It is prepared by a different GP, Dr Shimeld, and forms an enclosure to a referral letter from the GP to a psychiatrist, Dr Raja Singh. It contains a representation to the effect that the GP had diagnosed Ms Pallett with anxiety and depression. The respondents submit the evidence is irrelevant because it post-dates the discriminatory conduct alleged against them by more than 14 months. I accept that submission. Ms Pallett did not adduce additional evidence, whether on a voir dire or otherwise, as to whether or how the existence of a mental illness at the later point in time might bear on the question of whether she suffered a mental illness at the earlier relevant point in time. I would not admit the document in evidence for that reason.

75    If I am wrong in that conclusion, for the same reasons given in relation to the other mental health care plans, I would, in my discretion, limit the evidence to non-opinion purposes. The representations of fact made in the document add little to the evidence already admitted and should, by reason of the date of the document, be afforded very little weight in any event.

76    A further mental health care plan was tendered independently of Ms Pallett’s affidavit. It is dated 31 May 2012. Like the other plans, it is a business record containing representations of relevant facts by Ms Pallett’s GP that fall within the exception to the hearsay rule. They include the fact that Ms Pallett presented to her GP and complained that she was experiencing anxiety and low self-esteem and that she was finding her role as a new mother all consuming. The objective fact that Ms Pallett was subject to a mental health care plan is also probative. Issues of weight aside, the document is relevant and therefore admissible. For the same reasons given in relation to the 2008 plan, the evidence does not fall within s 78 or s 79 of the Evidence Act. Insofar as it is relied upon as containing admissible opinion evidence under the exception in s 77 of the Evidence Act, for the same reasons given above, it is to be limited under s 136 of the Evidence Act to non-opinion uses.

Letter from Women’s and Children’s Hospital dated 12 April 2013

77    This document is a letter to Ms Pallett from Dr Heather Goldsworthy of the Women’s and Children’s Health Network, which appears to be a division of the Women’s and Children’s Hospital. It states:

Dear Miranda,

I am writing to offer you a post-natal mental health review appointment on 3/5/2013 at 1300 in the Department of Psychological Medicine. The Department is located on the 1st floor of the Good Friday Building at the Adelaide Women’s and Children’s Hospital. If this time is not convenient please contact the department via switch on 81617000. Otherwise look forward to meeting you.

78    Ms Pallett’s receipt of an offer for a post-natal mental health review in May 2013 is relevant. The respondents’ contentions concerning this document bear on its weight, rather than its admissibility. The document is admissible.

Letter from Perinatal Mental Health Service dated 16 June 2014

79    This letter is authored by Lynly Mader who, it may be inferred from the document, is a Senior Occupational Therapist and a “Perinatal and Infant Mental Health Therapist” employed by, or otherwise engaged by, a perinatal mental health service. It states:

This letter is to briefly describe the involvement of Ms Pallett with the Perinatal and Infant Mental Health Team. Ms Pallett has attended the service since March 2013. Ms Pallett has experienced significant maternal distress since the birth of her children.

This distress has presented with a variety of symptoms, including both depression and anxiety. These have at times been so significant that they have compromised Ms Pallett’s functional performance including organisational and tasks [sic] sequencing behaviours. The preoccupations will have at times made it difficult for her to attend to appointments or deadlines.

80    In her affidavit, Ms Pallett states that this letter was prepared to assist her in presenting her case for merits review before an administrative tribunal. She states that the letter was authored by Ms Mader because Dr Powrie (being a psychiatrist in the unit to whom Ms Pallett was referred) was on leave at the relevant time.

81    The letter is a business record of the mental health service and contains previous representations made or recorded for the purposes of its business. It contains an assertion of fact by Ms Mader that Ms Pallett had attended the service since March 2013. Questions of weight aside, that fact is relevant. It is a fact that Ms Mader either might reasonably be supposed to have personal knowledge of, or otherwise made on the basis of information directly or indirectly supplied by other persons in the service who had personal knowledge of it. The asserted fact that Ms Pallett experienced “significant maternal distress since the birth of her children” is also relevant. In the absence of evidence to the contrary, the words “maternal distress” should be understood as a reference to emotional upheaval experienced by Ms Pallett relating to her role as a mother. It may be reasonably inferred that information about that mental state was supplied by Ms Pallett herself, being a person who might reasonably be supposed to have personal knowledge of the asserted fact.

82    The second paragraph of the letter is more problematic insofar as it is relied upon as a medical opinion about the existence of a mental illness and the connection between that illness and the particular difficulties referred to. The objective fact that Ms Pallett experienced difficulties with organisational or other skills is relevant and the document is admissible to prove that fact. However, there is insufficient evidence to establish whether Ms Mader had specialised knowledge to enable her to express an opinion as to whether or not the particular difficulties suffered by Ms Pallett were the result of a disability. Insofar as Ms Mader relied upon and restated an opinion that was held by another person, that other person is not identified, their specialised knowledge is unknown and the factual basis upon which the opinions are based are not specified. Insofar as the document contains opinions concerning the existence of the pleaded mental illnesses, it has not been demonstrated that the evidence fulfils the requirements of s 78 or s 79 of the Evidence Act. Insofar as any such opinions would otherwise be admissible under s 77 of the Evidence Act, for the same reasons given in respect of the mental health care plans, this document will be limited to its non-opinion uses.

Rulings on Ms Pallett’s affidavit evidence-in-chief

83    Paragraph 3 of Ms Pallett’s affidavit is adduced to prove both the objective truth of the existence of the mental illnesses and Ms Pallett’s subjective belief as to the existence of the illnesses. For reasons given earlier, the evidence was received provisionally at trial for the latter purpose. I will not read the paragraph for the first-stated purpose. It has not been established that Ms Pallett has specialised knowledge in the field of mental health so as to express her own admissible opinion as to the existence or otherwise of the pleaded disabilities. The evidence is to be understood as a repetition by Ms Pallett of out of court opinions expressed by Ms Pallett’s medical practitioners. As to my earlier provisional ruling, I do not consider Ms Pallett’s subjective belief to be relevant because it has not been established that her subjective belief coincides with the proven fact of a mental illness (as to which, see [99]-[105] below). I uphold the respondents’ objection to this paragraph.

84    The objection to [4] of the affidavit is upheld. The evidence is adduced to prove the existence of the mental illnesses forming the subject of the GP’s diagnoses.

85    The objection to the second sentence of [5] of the affidavit is upheld. That sentence constitutes evidence of Ms Janis’ “diagnosis”, expressed in terms of a hearsay statement to the effect that Ms Janis agreed with the GP’s diagnosis. I have ruled that documents containing evidence of the GP’s opinion as to the fact of a mental illness will not be used for the purpose of proving the existence of the asserted fact. The same reasoning applies to Ms Pallett’s testimony in relation to that issue.

86    I uphold the respondents’ objection to [6] of the affidavit. That paragraph comprises a hearsay recount of an opinion expressed by the psychologist adduced to prove the truth of the fact about which the opinion was expressed. No exceptions to the hearsay or opinion rules are established. Even if I am wrong in that respect, I would, for the reasons given in relation to the mental health care plans, rule the evidence not be used for opinion purposes.

87    I will read the first sentence of [11] of the affidavit. The fact that Ms Pallett was referred to a psychologist is relevant, as is the fact that the referral occurred pursuant to a mental health care plan. I uphold the respondents’ objection to the second sentence of that paragraph, for the same reasons given in relation to [6].

88    The objections to [12] and [87] of the affidavit are upheld insofar as Ms Pallett expresses an opinion as to a connection between a mental illness and the difficulties she experiences in attending to the day to day tasks of living and looking after herself and her children. Evidence of the difficulties is, however, relevant and admissible.

Findings

89    The following findings are based on the admissible evidence, including documents admitted for purposes identified above, the admissible portions of Ms Pallett’s affidavit, the additional exhibits that were not subject to objection and the oral evidence given by Ms Pallett in the course of the trial.

90    Ms Pallett holds undergraduate degrees in engineering and mathematical and computer sciences and a graduate degree in education. She held a number of teaching and training positions and has worked as a self-employed author of mathematical text books under long term contracts with reputable publishers. In an online application for social security benefits, Ms Pallett claimed she had worked at least 8 hours per week between 28 February 2012 and 26 March 2013. That period included her work both as a text book author and as a mathematics teacher.

91    In 2013 and 2014 Ms Pallett was seen by a psychiatrist, Dr Powrie. She was referred to Dr Powrie by a nurse following a screening test undertaken when Ms Pallett was pregnant with her second child. There is no evidence as to what the screening test entailed. The fact of the referral nonetheless supports an inference that Ms Pallett was identified by the nurse as a person who may at least be at risk of a mental illness during and immediately following her pregnancy.

92    It appears from a letter provided to Ms Pallett dated 7 November 2013 that Dr Powrie provided consolation and encouragement to Ms Pallett in relation to difficulties Ms Pallett was then experiencing. It may be inferred from the letter that Ms Pallett at that time felt overwhelmed and that she had little practical support and respite from the demands of caring for two young children as a sole parent. The letter indicates, and I so find, that Ms Pallett was, in early November, experiencing a significant degree of emotional distress and feelings of self-doubt. The letter is not otherwise relied upon as evidence of any opinion expressed by Dr Powrie as to the existence of a mental illness.

93    Whilst Ms Pallett deposed to having been prescribed various medications “to reduce anxiety and to help with sleep and concentration” her evidence did not identify the periods of time in which the medication was prescribed. I give this evidence little weight for that reason, together with the reason that the purpose for which the medication was prescribed are purposes relayed to Ms Pallett by her medical practitioners who were not called to give evidence to explain why the medication was prescribed, for how long and to what effect. In that regard, Ms Pallett gave no evidence as to the effectiveness of the medication in reducing or eliminating her feelings of anxiety or difficulties concentrating.

94    Ms Pallett described her house as a mess. She said that she was unable to cope with the accumulation of paperwork associated with the day to day demands of life and could not make decisions about what to keep and what to throw out. She relied on a photograph taken of the hallway of her home in 2014 which was said to demonstrate the extent of these difficulties at or around the time that she dealt with the respondents. The photograph depicts a hallway with papers on the floor. For the most part the papers appear to have been sorted and stacked, although in some places they are strewn about, as if yet to be sorted. In the absence of more detailed evidence concerning its context, the photograph is of little probative value. It is not of a kind that would enable the Court to make a meaningful assessment as to whether Ms Pallett’s actual abilities to organise her thoughts coincided with her perceived abilities in that regard.

95    From about 2008, Ms Pallett sought the assistance of her GP and, on the basis of her self-reported mental state, she was referred to a psychologist. She gave accounts of her mental state to her GP at various times since 2008, and those accounts were recorded in the mental health care plans to which I have referred. The accounts were given by Ms Pallett by way of responses to questions put by the GP in a standard form. In the responses, Ms Pallett indicated the frequency with which she had experienced certain feelings in the previous four weeks. By reference to the most proximate mental health care plan dated 31 May 2012, I am satisfied that Ms Pallett felt, in the four weeks prior:

(1)    tired out for not good reason - some of the time;

(2)    nervous (including so nervous that nothing could calm her down) - a little of the time;

(3)    hopeless - a little of the time;

(4)    so restless she could not sit still - none of the time;

(5)    depressed - some of the time;

(6)    that everything was an effort – most of the time;

(7)    so bad that nothing could cheer her up – none of the time; and

(8)    worthless – none of the time.

96    Responses given by Ms Pallett to the same or similar questions in 2008 and 2009 support the conclusion that the feelings reported by Ms Pallett were not consistent over time, whether as to their existence or as to their frequency.

97    I am satisfied that in the months following the birth of her second child Ms Pallett at times found her life difficult, that she subjectively perceived that she was unable to fulfil her role as a sole parent to two young children and that she experienced difficulties bonding with her second child. All of these difficulties were themselves a source of worry and emotional distress to her.

98    I am also satisfied that in the relevant period, namely between 2013 and 2014, Ms Pallett felt that she was unable to cope with the day to day demands of life and that she had, around that time, referred herself to a mental health fellowship program for the assistance she felt she needed in managing her finances and her home. However, no person from within the mental health program was called to give evidence to the effect that Ms Pallett had an inability to manage her finances or her home that was in fact caused by, or contributed to, a mental illness.

99    Ms Pallett said (and I accept) that she experienced difficulties concentrating or remembering details following the birth of her second child in March 2013. The difficulties in concentration and retaining information were reported to arise from March 2013. Ms Pallett worked as a teacher between July and January 2013, being a proximate period in which, I am satisfied, she saw a psychologist. Ms Pallett did not suggest that she had difficulties concentrating or retaining information in the earlier proximate time frame.

100    Notwithstanding my findings of fact as to Ms Pallett’s distressed mental state and actual or perceived coping difficulties in the relevant period, for the reasons given earlier, the question of whether or not those facts are symptomatic of, or a manifestation of, one or more mental illnesses is a question that the Court cannot correctly determine on the basis of ordinary assumptions about human behaviour.

101    Whilst the fact of attendances before a psychiatrist or psychologist is probative of the existence of a mental illness, there is very little admissible evidence from which the Court may confidently infer that the sessions with those professionals were initiated, or continued, for the purposes of treating a mental illness that existed throughout the relevant period. There is some indication in the GP’s records that the psychologist referral was made for purposes that included assisting Ms Pallett to improve her self-esteem. It was not suggested that low self-esteem fell within the disability definition. Caution should be exercised before inferring with confidence that the referral to a psychologist or psychiatrist evidences the existence of a disability at the relevant time. The fact of the referrals is relevant but is to be afforded little weight.

102    To the extent that the Court is invited to find that Ms Pallett suffered from a mental illness in the nature of anxiety or depression, it is not sufficient to show that Ms Pallett, at various times and to varying degrees, felt anxious or felt depressed in the ordinary senses of those words. The Court does not have the specialised knowledge that would permit an inference to be drawn that Ms Pallett’s thought processes, perception of reality, emotions or judgment were affected by a disorder, illness or disease, as opposed to resulting from the ordinary stresses in her life (particularly following the birth of her second child), or personal characteristics such low self-esteem.

103    Insofar as the Court is invited to find that Ms Pallett suffered from avoidant personality disorder, there is no evidence to support a finding as to what such a disorder entails, nor to enable a meaningful assessment as to whether it falls within the disability definition. Nor is there evidence as to the nature of the effects of the avoidant personality disorder on Ms Pallett at the relevant time. Nor is the pleaded allegation that Ms Pallett “likely suffers from attention deficit disorder, non-hyperactive type” made out. There is no evidence as to what the disorder is, nor as to the times in which Ms Pallett suffered from it, nor as to its specific effects on her.

104    I have not overlooked the fact that the difficulties in respect of which Ms Pallett gave evidence were multifaceted and recurring over a significant period of time. It is necessary to consider the inferences that are available from the evidence of those difficulties, viewed as a whole. Viewed together and in all of the surrounding circumstances, the nature of the proven difficulties is not such that the Court may confidently infer that they were the manifestations or symptoms of one or more mental illnesses. There may well be cases in which the subjective experiences and outward behaviours of a person are of such a nature, intensity or duration that a conclusion as to the existence of a disorder, illness or disease affecting the mind may well be drawn by a trier of fact having no specialised knowledge in the relevant field. I do not consider this to be such a case.

105    None of what I have said should be taken as a finding that Ms Pallett did not, at the relevant time, suffer from the pleaded mental illnesses, or indeed any other disability, as defined in the DD Act. A conclusion cannot be drawn either way. Although I consider Ms Pallett to be a witness of truth in relation to the evidence she gave concerning her personal experiences, emotions and perceptions, the admissible evidence does not prove, on the balance of probabilities, the illnesses pleaded at [2] – [4] of the SOC and the connection between those illnesses and the difficulties pleaded at [6] of the SOC. Accordingly, Ms Pallett has not discharged her onus of proof in relation to these issues.

CONSEQUENCE OF FINDINGS

The case founded on actual disability

106    The absence of a finding that Ms Pallett suffered from the disabilities alleged at SOC [2] - [4], and the absence of a finding that the disabilities caused the difficulties alleged at SOC [6], affect Ms Pallett’s claims as follows.

107    Insofar as the claim is founded on allegations of direct discrimination within the meaning of s 5(1) of the DD Act, Ms Pallett must show that, because of the disability, the respondents treated or proposed to treat her less favourably than they would treat a person without the disability in circumstances that are not materially different. The support person complaint and the less weight complaint are not made out to the extent that they are founded upon s 5(1) of the DD Act because they logically depend upon a finding of the existence of a disability.

108    Insofar as the claim is founded on allegations of direct discrimination within the meaning of s 5(2) of the DD Act, Ms Pallett must show that the respondents did not make, or proposed not to make, reasonable adjustments for Ms Pallet, and that the failure to make the reasonable adjustments had or would have had the effect that Ms Pallett was, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. That, too, is a claim that depends for its success on proof of the existence and effect of the disability. The writing complaint, the single contact complaint and the support person complaint are not made out to the extent that they involved allegations of discrimination within the meaning of s 5(2) of the DD Act.

109    Insofar as the claim is founded on allegations of indirect discrimination within the meaning of s 6(2) of the DD Act, Ms Pallett must show that the respondents required or proposed to require Ms Pallett to comply with a requirement or condition and because of the disability, Ms Pallett would be able to comply with the requirement or condition only if the respondents made reasonable adjustments for her and the failure to make the reasonable adjustments had or was likely to have the effect of disadvantaging persons with the disability. That, too, is a claim that requires proof of actual disability and proof of the effect of the disability on Ms Pallett’s capacity to comply with the particular requirement or condition in question. The single contact complaint, the writing complaint and the same treatment complaint are all founded upon an allegation of indirect discrimination within the meaning of s 6(2) of the DD Act and, accordingly, those aspects of the claim are not established.

110    Although Ms Pallett placed no reliance on the definition of indirect discrimination in s 6(1) of the DD Act, such a case would require that Ms Pallett show that she did not, or was not able to, comply with any alleged requirement or condition imposed by the respondents because of her alleged disabilities. Proof of such an allegation would require the Court to first determine the existence and effect of the disabilities in question.

111    In concluding that the less weight complaint is not established, I have borne in mind that the complaint is one in which it is alleged that, because of her disability, Ms Pallett became highly distressed during her telephone interactions with Ms Taylor. The claim is founded on an allegation that Ms Taylor gave less weight to Ms Pallett’s submissions in part because of the behaviour exhibited by Ms Pallett, which she found annoying or exasperating. The closing words of the disability definition make it clear that a disability that is “otherwise covered” by the definition includes behaviour that is a symptom of manifestation of the disability. It follows from Ms Pallett’s failure to prove the existence of a disability “otherwise covered” by the definition that she has not established that her behaviour in the telephone exchanges was a symptom or manifestation of such a disability.

Imputed disability

112    Ms Pallett did not plead an allegation that she was discriminated against because of a disability imputed to her by the respondents or any one of them: see para (k) of the disability definition. In her closing submissions, however, she contended that a disability was imputed to her and that her claim should succeed on that alternative basis.

113    The respondents submitted that Ms Pallett should not be permitted to introduce an allegation of imputed disability in the course of closing submissions in circumstances where the case had been neither pleaded nor presented on that basis.

114    I accept the respondents’ submission to the extent that it concerns the manner in which the trial proceeded. It is to be accepted that in proceedings under the AHRC Act the ordinary requirement that a party to litigation be confined to its pleaded case should not be adhered to in such a way as to elevate form over substance. However, in this case the parties’ evidentiary cases were presented in accordance with the pleading and no allegation of an imputation of disability was foreshadowed in Ms Pallet’s written or oral opening submissions. Ms Pallett did not otherwise run her case on the evidence in a fashion that would have made it clear to the respondents that her claim was founded (whether primarily or in the alternative) on an imputed disability rather than on the existence of the actual disabilities she had pleaded.

115    To my mind, a claim founded upon an imputed disability is one of a fundamentally different character to that which was advanced. It is to be recalled that the writing complaint, the support person complaint and the single contact complaint are all complaints founded, whether wholly or partly, upon the failure of the respondents to make reasonable adjustments to accommodate Ms Pallett’s actual difficulties occasioned by actual disabilities. It is unclear how proof of an imputed rather than and actual disability might assist Ms Pallett in relation to these aspects of her case. The basis upon which the same treatment complaint might succeed by reference to an imputed disability rather than an actual disability was not clearly articulated.

116    As I have mentioned, the less weight complaint was founded on Ms Pallett’s evidence that, in part because of her actual disabilities, she became highly distressed during her telephone calls with Ms Taylor and that Ms Taylor gave less weight to Ms Pallett’s submissions in part because of Ms Pallett’s highly distressed state. The case was not advanced on the basis that Ms Taylor imputed to Ms Pallett a disability and discriminated against her by reason of that imputed disability, whatever it might be. I am not satisfied that such a case was fairly put to Ms Taylor in cross examination, or otherwise sufficiently foreshadowed.

117    No application was made by Ms Pallett to amend her pleading to allege an imputed rather than (or in addition to) an actual disability. For the reasons given, I would not proceed to judgment on that basis, nor would I grant Ms Pallett an opportunity to amend her pleading to now formulate her case in a way that does not depend upon proof of the actual disabilities pleaded at SOC [2] – [4].

118    It follows that the application should be dismissed.

119    I will hear the parties as to costs.

Associate:

Dated:    22 September 2017