FEDERAL COURT OF AUSTRALIA

Harvey v Dioceses of Sale Catholic Education Limited (St Joseph’s Primary School Wonthaggi) [2019] FCA 1714

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ statement of claim dated 6 May 2019 be struck out.

2.    The applicants’ interlocutory application dated 12 August 2019 be dismissed.

3.    The applicants have leave to file an amended statement of claim within 30 days of the date of this order.

4.    The applicants pay the respondent’s costs of and incidental to the respondent’s interlocutory application dated 13 August 2019 and of the applicants’ interlocutory application for summary judgment dated 12 August 2019.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This proceeding concerns claims brought under the Disability Discrimination Act 1992 (Cth) against the respondent, a school (St Joseph’s). The first applicant is the mother of the second and third applicants, who were born on 20 July 2006 and 26 August 2008 respectively, and who were students at St Joseph’s for a number of years.

2    By an interlocutory application dated 13 August 2019, the respondent seeks an order that the applicants’ Statement of Claim (SOC) dated 6 May 2019 be struck out, pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) (the rules), on the grounds that it is evasive and ambiguous, and is likely to cause prejudice, embarrassment and delay.

3    The applicants in turn seek default judgment pursuant to r 5.23 of the rules on the ground that the respondent has not filed a defence.

4    For the reasons set out below, the statement of claim should be struck out. It follows that the applicants’ application for default judgment must be dismissed.

The statement of claim

5    It is here convenient to set out the SOC in full.

A.    Relationship between the Applicants and the Respondent

1.    The First Applicant (“Mrs Harvey”) is the mother of the Second and Third Applicants.

2.    The Second Applicant (“Max”) was born on 20 July 2006, and is currently 12 years of age.

3.    The Third Applicant (“Jack”) was born on 26 August 2008 and is currently 10 years of age.

  4.    The Respondent is:

(a)    an educational authority; and

(b)    and (sic) an educational provider;

for the purposes of ss.4 and 22 of the Disability Discrimination Act 1992 (Cth) (“the DDA”).

5.    Max was enrolled at St Joseph’s Primary School (“St Joseph’s”) in January 2014, the period of his complaint being January 2014 to September 2018 (“Max’s relevant period”).

6.    Jack was enrolled at St Joseph’s in January 2015, the period of his complaint being January 2015 to September 2018 (“Jack’s relevant period”).

7.    The claim is brought under ss.5, 6, 22, 32 and 42 of the DDA, as applied pursuant to s.12(8).

B.    Max’s Disabilities

8.    Max has the following disabilities within the meaning of Section 4 of the DDA:

(a)    Mild Receptive Language Delay;

(b)    Language Processing Difficulties;

(c)    Auditory Processing Delay;

(d)    Low Average IQ;

(e)    Dyslexia;

(f)    Dyscalculia;

(g)    Anxiety;

(h)    Motor Skill Delay.

C.    Jack’s Disabilities

9.    Jack has the following disabilities within the meaning of section 4 of the DDA:

(a)    Specific Learning Disability;

(b)    Severe Receptive Language Difficulty/Disorder;

(c)    Moderate Expressive Language Difficulty/Disorder.

D.    Details of the Discrimination

Discrimination in Education - Section 22

  10.    The Respondent has breached s.22 of the DDA, as set out below.

11.    The Respondent has limited both Applicants’ access to a benefit provided by it, in breach of s.22(2)(a), namely access to the academic curriculum.

12.    The Respondent limited both Applicants’ access to the academic curriculum during the Max’s and Jack’s relevant periods, as set out in the First to Fourth Allegations inclusive herein.

13.    The Respondent has subjected Max to detriment, in breach of s.22(2)(c), namely exacerbation of his anxiety as set out in the First, Second and Fourth Allegations.

14.    The Respondent has subjected both Applicants to detriment, in breach of s.22(2)(c), subjecting them to serious disadvantage by preventing them from reaching their academic potential, as set out in the First to Fourth Allegations inclusive.

Indirect Discrimination Section 6(1)

First Allegation: Requirement or Condition – evidence-based remedial literacy and numeracy programs

15.    In breach of s.6(1), the Respondent imposed a requirement or condition on its students that they access will (sic) the curriculum/their education without evidence-based remedial literacy and numeracy programs, implemented with fidelity (“the requirement or condition”).

PARTICULARS

(a)    “evidence-based” means based on the most recent scientific research;

(b)    “fidelity” means application with accuracy/exactness.

16.    Because of Max’s disabilities set out in paragraphs 8.1 to 8.6 inclusive hereof, Max could not comply with the requirement or condition.

17.    Because of Jack’s disabilities set out in paragraph 9 hereof, Jack could not comply with the requirement or condition.

18.    The requirement or condition had the effect of disadvantaging both Max and Jack.

   (a)    Neither Max nor Jack were able to reach their academic potential;

(b)    Max was required to miss school regularly to obtain provide tutoring to make up for his lack of effective education at school, thereby differentiating him from his peers;

(c)    Max’s anxiety was exacerbated by reason of his inability to comply with the requirement/condition, and he subsequently missed attending school by reason of mental health issues, necessitating him leaving school;

(d)    Max and Jack missed out on advantages such as family holidays by reason of their family having to fund assessments, speech therapy, private tutoring, workbooks, programs and readers in the absence of the school providing the support they required.

19.    The requirement or condition was not reasonable, having regard to the circumstances of Max and Jack’s learning disabilities.

20.    In the premises, the Respondent unlawfully discriminated against Max and Jack on the ground of their disabilities by imposing a requirement or condition upon them that they could not comply with, in breach of s.6(1), thereby limiting their access to the benefit set out in paragraph 11, contrary to s.22(2)(a), subjecting them to the detriment set out in paragraph 14, and subjecting Max to the detriment set out in paragraph 13, contrary to s.22(2)(c) of the DDA.

Indirect Discrimination Section 6(1)

Second Allegation: Requirement or Condition - Individual Education Plan

21.    In breach of s.6(1), the Respondent imposed a requirement or condition on students at St Joseph’s that they access the curriculum/ their education without an Individual Education Plan containing measurable outcomes, such plan being formally monitored and evaluated to ensure the strategies in the plan were effective.

22.    Because of Max’s disabilities set out in paragraphs 8.1 to 8.6 inclusive hereof, Max could not comply with the requirement or condition.

23.    Because of Jack’s disabilities set out in paragraph 9 hereof, Jack could not comply with the requirement or condition.

24.    The requirement or condition had the effect of disadvantaging Max and Jack, because:

(a)    the Individual Education Plans were not effective in supporting Max and Jack to reach their academic potential, and were not substantially altered, as there existed no formal monitoring or evaluation of their effectiveness;

(b)    To obtain tutoring to make up for his lack of effective education at school, Max missed school regularly, thereby differentiating him from his peers;

(c)    Max’s anxiety was exacerbated due to his inability to comply with the requirement or condition, and as a result he subsequently missed attending school by reason of mental health issues, necessitating him leaving school.

25.    The requirement or condition was not reasonable:

(a)    having regard to the circumstances of Max and Jack’s learning disabilities; and

(b)    because formal measuring of outcomes, and formal monitoring and evaluation based on evidence, are standard best practice educational approaches;

(c)    as Max and Jack missed out on advantages such as family holidays by reason of their family having to fund assessments, speech therapy, private tutoring, workbooks, programs and readers in the absence of the school providing the support they required.

26.    In the premises, the Respondent unlawfully discriminated against Max and Jack on the ground of their disabilities by imposing a requirement or condition upon them that they could not comply with, in breach of s.6(1), thereby limiting their access to the benefit set out in paragraph 11, contrary to s.22(2)(a), subjecting them to the detriment set out in paragraph 14, and subjecting Max to the detriment set out in paragraph 13, contrary to s.22(2)(c) of the DDA.

Indirect Discrimination Section 6(1)

Third Allegation: Requirement or Condition - Educational Strategies: Multilit, Use of Talking/Audio Books, Specific Strategies for the Development of Keyboard Skills

27.    In breach of s.6(1), the Respondent imposed a requirement or condition on students at St Joseph’s that they access the curriculum/ their education without the application of the program Multilit, the use of talking/audio books, and formal documented strategies for the development of keyboard skills.

28.    Because of Jack’s disabilities set out in paragraph 9 hereof, Jack could not comply with the requirement or condition.

29.    The requirement or condition had the effect of disadvantaging Jack, because:

(a)    recommendations for the program Multilit, the use of Talking/Audio Books, and Specific Strategies for the Development of Keyboard Skills had been made by allied health practitioners with a view to ameliorating the barriers his disabilities posed;

(b)    he could not reach his educational potential as a result of the requirement/condition;

(c)    Jack missed out on advantages such as family holidays by reason of his family having to fund assessments, speech therapy, private tutoring, workbooks, programs and readers in the absence of the school providing the support he required.

30.    The requirement or condition was not reasonable having regard to the circumstances of Jack’s learning disabilities.

31.    In the premises, the Respondent unlawfully discriminated against Jack on the ground of his disabilities by imposing a requirement or condition upon him that he could not comply with, in breach of s.6(1), thereby limiting his access to the benefit set out in paragraph 11, contrary to s.22(2)(a) of the DDA, and subjecting him to the detriment set out in paragraph 14, contrary to s.22(2)(c) of the DDA.

Indirect Discrimination Section 6(1)

Fourth Allegation: Requirement or Condition - Open Classrooms

32.    In breach of s.6(1), the Respondent imposed a requirement or condition on students at St Joseph’s that they learn in open classrooms, namely one room comprising three classes, totalling approximately 75 children.

33.    Because of Max’s disabilities set out in paragraphs 8.1 to 8.6 inclusive hereof, and Jack’s disabilities set out in paragraph 9 hereof, neither could comply with the requirement or condition.

34.    The requirement or condition had the effect of disadvantaging Max and Jack as:

(a)    their learning disabilities resulted in them accessing the classroom on the same basis as others, thereby requiring significantly more concentration and effort;

(b)    the open classrooms resulted in a substantial increase in noise and activity, affecting the calm and ordered learning environment required by Max and Jack.

35.    The requirement or condition was not reasonable having regard to the circumstances of Max and Jack’s learning disabilities.

36.    In the premises, the Respondent unlawfully discriminated against Max and Jack on the ground of his disabilities by imposing a requirement or condition upon them that they could not comply with, in breach of s.6(1), thereby limiting their access to the benefit set out in paragraph 11, contrary to s.22(2)(a), subjecting them to the detriment set out in paragraph 14, and subjecting Max to the detriment set out in paragraph 13, contrary to s.22(2)(c) of the DDA.

Fifth Allegation: Breach of Disability Standards - Section 32

37.    The Respondent has breached s.5.2(1) and s.5.2.(2) of the Disability Standards for Education 2005, as follows:

(a)    The Respondent failed to take reasonable steps to ensure that Max and Jack could participate in their educational program on the same basis as students without a disability, and without experiencing discrimination as a result of not properly undertaking its responsibilities set out in s.5.2(2), such responsibilities interpreted pursuant to the Convention on the Rights of Persons with Disabilities;

(b)    The Applicants refer to and repeat the First to Fourth Allegations inclusive above, as if they were set out seriatum hereto.

(c)    With the requirements and conditions imposed as set out in the First to Fourth Allegations:

37.c.1    Max and Jack were not able to access the curriculum on the same basis as others;

37.c.2    Max’s anxiety required him to leave the school to remediate his mental health;

37.c.3    Max and Jack did not participate in the educational program on the same basis as students without a disability, and without experiencing discrimination.

(d)    The Respondent failed to meaningfully consult, pursuant to its obligations set out in General Comment 7 of the Convention on the Rights of Persons with Disabilities.

(e)    The Applicants say that any attempts to consult with them were merely tokenistic, and as such did not comply with the Disability Standards for Education, as applied through s.12(8) of the DDA.

E.    Victimisation

38.    In breach of s.42(2)(f), Mrs Harvey has been victimised as a result of asserting Max’s rights as a student with a disability, by reason of the following events, occurring after she asserted such rights:

38.1    St Joseph’s staff refused to provide evidence of documentation supporting the effectiveness of their educational strategies for Max.

38.2    St Joseph’s staff, in the main, refused to answer most queries in writing, and instead would only allow discussions in relation to Max’s education to occur at meetings, which typically only lasted 30 minutes.

38.3    The actions in paragraphs 38.1 and 38.2 hereof caused detriment to Max in the following ways:

38.3.1    regular school meetings did not result in positive educational or psychological outcomes for Max;

38.3.2    because St Joseph’s practice did not require evidence-based teaching methods, Max’s parents wished to research any approaches suggested by the school to ensure that they were evidence-based prior to agreeing to them, however this was not possible without explicit explanation as to what such approaches were;

38.3.3    there was significant disagreement in relation to the manner in which Max was being educated, and there was insufficient time at meetings to comprehensively discuss Max’s educational plans, which were lengthy and verbose;

38.3.4    at meetings, Mrs Kerry Harvey’s suggestions were often dismissed, her requests for evidence of supports for Max were ignored, and she was not provided with minutes, despite requesting same;

38.4    By reason of the subparagraphs immediately above, discussions in relation to Max’s education could not properly occur, and educational planning could not be finalised.

   38.5    The matters set out above caused Mrs Harvey distress and frustration.

Breaches of the Competition and Consumer Act 2010

39.    The Respondent is a supplier of educational and other services within the meaning of the Australian Competition and Consumer Act 2010 (“the Consumer Act”).

40.    The Respondent received monies from the First Applicant, who was a consumer within the meaning of the Consumer Act, to provide educational services for the Second and Third Applicants.

41.    The Respondent made numerous false and misleading representations that its services were of a particular standard, quality, value or grade, in breach of s.29(1)(b) of Schedule 2 of the Consumer Act.

42.    Alternatively, each of the representations constituted conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose, or the quantity of the services, in breach of s.34 of Schedule 2 of the Consumer Act. Such misleading claims included that the Respondent:

(a)    works collaboratively with parents, students and other community members to ensure a safe school environment;

(b)    personalises learning for each child based on their developmental needs and interests;

(c)    builds a positive learning community where students feel valued and respected;

   (d)    plans reasonable adjustments for the student to access the curriculum;

   (e)    monitors the progress of the student;

(f)    holds the care, safety and wellbeing of children and young people as a central and fundamental responsibility of the school;

(g)    acts in a partnership with parents where both parties seek to achieve a common goal;

(h)    views the role parents play in their child’s schooling as vital to their school’s mission to educate each child;

   (i)    undertakes honest, open and regular communication with parents;

(j)    is committed to nurturing respectful relationships and active partnerships with parents;

(k)    communicates with parents regularly regarding their child’s learning, development and wellbeing;

(l)    relates with and responds to parents in a respectful and professional manner;

  (m)    ensures a timely response to any concerns raised by parents;

(n)    encourages parents to play an integral role in their children’s education;

   (o)    will always act to protect students from any kind of harm;

(p)    seeks to achieve academic development as an important component for students;

   (q)    strive for resolutions and outcomes that are satisfactory to all parties;

   (r)    provides a learning environment that promotes independence;

(s)    supports each child’s social, emotional and intellectual growth in a caring yet stimulating environment;

(t)    provides an inclusive educational environment where every child feels important;

(u)    strives for the implementation of a curriculum that is student centred and personalised.

43.    By reason of the foregoing, including the matters set out in the First to the Fourth Allegations hereof, the Respondent failed to render the services with due care and skill, in breach of s.60 of Schedule 2 of the Consumer Act.

F.    Relief/Remedies sought by the Applicant

44.    The Max and Jack (sic) seek:

(a)    A declaration that the Respondent has committed unlawful discrimination and victimisation against them during Max’s relevant period and Jack’s relevant period, or parts thereof.

(b)    Damages pursuant to Section 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth).

(c)    Damages pursuant to s.236 of Schedule 2 to the Consumer and Competition Act 2010;

(d)    Compensation and/or damages pursuant to Section s.267 of Schedule 2 to the Consumer and Competition Act 2010;

(e)    Any further or other Orders as the Court considers appropriate.

(f)    Costs.

applicable principles

6    Rule 16.02 of the rules relevantly provides:

16.02 Content of pleadings—general

(1)    A pleading must:

(a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

   (b)    be as brief as the nature of the case permits; and

   (c)    identify the issues that the party wants the Court to resolve; and

(d)    state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

   (e)    state the provisions of any statute relied on; and

   (f)    state the specific relief sought or claimed.

(2)    A pleading must not:

   (a)    contain any scandalous material; or

   (b)    contain any frivolous or vexatious material; or

   (c)    be evasive or ambiguous; or

(d)    be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

   (f)    otherwise be an abuse of the process of the Court.

…

7    Rule 16.21(1) of the rules relevantly provides:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

…

   (c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

…

8    The purpose of a statement of claim is to enable the respondent to know, with sufficient clarity, the case which it is required to meet. See Dare v Pulham (1982) 148 CLR 658 (Murphy, Wilson, Brennan, Deane and Dawson JJ) at 664.

9    The power to strike out pleadings is not lightly to be exercised. As the Full Court said in Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 (Emmett, Bennett and McKerracher JJ), at 540, [6]:

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. 

10    In Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at 575-576 that “[o]rdinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes” and that, while the test for whether pleadings should be struck out has been expressed in a number of ways, “all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.

11    The power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency. See Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236 (Beaumont J).

12    If substantial parts of a pleading are struck out, the court may strike out the entire pleading on the basis that the residue would be confusing. See Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323 (Lockhart J).

consideration

13    In my view, as the respondent’s counsel submitted in his written submissions, the substantive parts of the SOC (paragraphs 10 and following) are embarrassing within the meaning of the rules because they are “pitched at such a level of generality that [they] cannot be understood or responded to in any meaningful way”. Many terms used are undefined and vague; very little is said about what actual actions or statements of the respondent are said to constitute the alleged contraventions; no reference is made to specific time periods in which the alleged wrongdoing occurred; and no facts are pleaded alleging how the second and third applicants’ disabilities prevented them from complying with a requirement or condition imposed by the respondent.

14    In short, the respondent cannot know what is alleged against it.

15    The applicants submit that “[i]t is relevant to note that many of the issues raised in the [r]espondent’s submissions dated 28 August 2019 have not previously been raised with the [a]pplicant”. They also contend that the fact that the respondent notified the applicants that it was of the view that the SOC was defective on the day it was due to file its defence “suggests that the [r]espondent’s submission is disingenuous, and that it is attempting to avoid filing a Defence”.

16    I do not accept that submission. To say that a submission is “disingenuous” is a very serious allegation to make. “Disingenuous” means “lacking in candour or frankness, insincere, morally fraudulent” (Oxford English Dictionary, 2019, online edition). The word should not recklessly be bandied about. The shortcomings of the pleading are manifest and the lateness of the respondent’s contentions does not reflect upon their validity.

17    The applicants also submit that “[a] statement of claim is not defective merely because it pleads what might be said to be conclusions of fact at a higher level of generality than the primary facts that must be proved by evidence”, citing Fleming’s Nurseries Pty Ltd v Siciliano [2006] FCA 757 (Young J) at [14].

18    They also contend that “where the facts are peculiarly within the respondent’s knowledge of the appellants’ statutory cause of action should not have been dismissed because of gaps in the appellants’ case if the necessary evidence might be obtained as a result of discovery, interrogatories or evidence from reluctant witnesses”, citing Wickstead v Browne (1992) 30 NSWLR 1 (Handley and Cripps JJ) at 11.

19    Both propositions are undoubtedly correct, but they are entirely beside the point here.

20    The applicants next submit that because “this is a human rights proceeding”, additional considerations arise. First, it is said that because the Australian Human Rights Commission (AHRC) is involved in attempting to resolve complaints of this type, “a Respondent is put on notice of the substance of the claim and the issues raised by the claimant at an early stage”. Secondly, it is said that because s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) confines the subject matter of a proceeding to the subject matter of the complaint dealt with by the AHRC, the “Respondent will know that the claim it must meet is confined to specific subject matters.” Thirdly, they point to s 46PR of the AHRC Act, which says that proceedings such as this “are not bound by technicalities or legal forms”. The applicants submit that this provision “should mean the parties focus on the substance of the dispute, rather than pleading points of the kind raised in [the respondent’s] application [to strike out the pleadings]”.

21    In my view, none of these matters operates to alleviate the obligation on an applicant properly to plead a cause of action.

22    Accordingly, the SOC will be struck out. I will grant leave to re-plead, and order that the applicants pay the costs of both applications.

Associate:

Dated:    18 October 2019