FEDERAL COURT OF AUSTRALIA

Morsman (by his next friend Bampton) v State of Victoria (Department of Education and Training) [2020] FCA 763

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant have leave to amend the further amended concise statement filed on 24 April 2019 in the terms indicated by the Court at the interlocutory hearing on 26 May 2020, namely by making all amendments sought apart from those which would add the proposed new Fourth, Fifth and Sixth Allegations.

2.    The Applicant have leave to file a further application to amend his pleadings in the terms indicated by the Court at the interlocutory hearing on 26 May 2020, being an application to add a confined claim concerning the Respondent’s asserted failure to provide him with speech pathology services, no later than 4:00pm on Tuesday 23 June 2020.

3.    The costs of and incidental to the Applicant’s interlocutory application be the Respondent’s costs in the cause.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

Kerr J:

1    These proceedings were commenced on Mr Morsman’s behalf by his mother and litigation representative, Ms Patricia Bampton, by an originating application filed on 4 July 2018. Broadly, Mr Morsman alleges that he has been the subject of discrimination associated with his Autism Spectrum Disorder contrary to the Disability Discrimination Act 1992 (Cth) in the course of his education. A statement of claim was filed on 8 October 2018.

2    Between October 2018 and April 2019, the Applicant filed four iterations of his pleadings: the initial statement of claim, and three versions of a concise statement. The most recent version was filed on 24 April 2019. That version – the Further Amended Concise Statement – included three allegations of direct discrimination (the First Allegation, Second Allegation, and Third Allegation).

3    By an interlocutory application filed on 3 April 2020, Mr Morsman now applies for leave to file a proposed Second Further Amended Concise Statement. The proposed new pleading makes various amendments to introductory matters, including the identification of the nature of Mr Morsman’s disability. It amends the First, Second and Third Allegations. It would also add three new allegations: the proposed Fourth, Fifth and Sixth Allegations.

The explanation for the application

4    It is helpful first to set out the context against which the application was filed.

5    Counsel for the Respondent, Ms Latif, submits that the Respondent had until April 2019 led and participated in a “largely collaborative process” of engagement with the Applicant to refine his pleadings. The aim had been to produce a document that would give fair notice of such of his claims as had reasonable prospects of success. To that end, Ms Latif submits, the Respondent had identified deficiencies in the Applicant’s written case. It had also indicated to the Applicant how those deficiencies might be addressed.

6    I do not necessarily accept Ms Latif’s description of what has occurred between the parties as “a largely collaborative process”. The process may have been collaborative to a degree. However, having regard to the correspondence before the Court I am satisfied that there was always something underlying the Respondent’s identification of asserted deficiencies in the Applicant’s pleadings: the prospect that that it might make an application to strike out those pleadings, if they remained in the form that it criticised. That acknowledged, there was nothing at all improper in the Respondent having drawn the attention of the Applicant’s legal representatives to the asserted deficiencies in their pleadings.

7    The Applicant’s then legal representatives were ultimately persuaded of the difficulties he faced in making good certain of the claims identified in his pleadings as then articulated. They therefore accepted the wisdom of the course pressed upon them by the Respondent. They accordingly twice sought instructions from Ms Bampton, who it will be recalled acts as Mr Morsman’s litigation representative in these proceedings, to permit them to narrow the scope of his claims to those which they were confident they could properly advance.

8    That process, Ms Latif submits, culminated in the Applicant filing (on 24 April 2019) his Further Amended Concise Statement. That pleading reduced the number of allegations of discrimination to three, and reduced the relevant claim period from five years to seven months.

9    This matter came before the Court in October 2019. On that occasion, a possible application to revisit the pleadings was foreshadowed. I was at that time informed that the narrowing of the Applicant’s pleadings (culminating in the filing of the Further Amended Concise Statement) had been the fault of a “very junior solicitor” who had “just unilaterally crossed out a whole lot of items in the previous concise statement”. It was submitted that “she didn’t even seek confirmation from the barrister”.

10    It was most unfortunate that those submissions were made. It now appears uncontentious that they involved a groundless attack on a fellow practitioner.

11    I take the true position to be that to which Ms Bampton has since deposed in her affidavit dated 23 April 2020. In that short affidavit, Ms Bampton deposes to having complained on her son’s behalf to the Australian Human Rights Commission (AHRC) in October 2017 that Peninsula Specialist College which he was attending:

(a)    had required him to be medicated, when his disability did not require medication;

(b)    would not let him return to school until he was medicated;

(c)    had suspended him for exhibiting behaviour arising from his disability;

(d)    had excluded him from school and at other times allowed him to attend school only for 20 minutes a day because of behaviours arising from his disability; and

(e)    had not made adjustments for her son to allow him to access his educational potential.

12    The adjustments that Ms Bampton deposes to having identified in her complaint as not having been made included the provision of:

…effective plans to assist with and manage his behavioural issues, speech pathology assistance or effective assistance with his communication needs and effective educational assessment or plans.

13    When her son’s complaint had not resolved to her satisfaction, I infer that Ms Bampton gave instructions to Mr Morsman’s former solicitors to pursue in this Court the issues about which she had complained on his behalf in the AHRC. His former solicitors implemented those instructions by filing the originating application and statement of claim, as referred to in paragraph [1] above.

14    With respect to the amendments that were later made to those pleadings abandoning some of those claims, Ms Bampton deposes that Mr Morsman’s former lawyer first contacted her on a date she could not recall

…and advised I was required to remove one of the allegations from the claim.

15    Ms Bampton deposes that as a result, an amended concise statement was filed on 7 February 2019 with one of her original allegations removed.

16    Ms Bampton deposes that on two occasions in April 2019, her then lawyers contacted her again. They advised her to remove further allegations from her son’s claim. She deposes:

I agreed to this and my pleadings were amended to their current form, the Further Amended Concise Statement of Claim filed 24 April 2019.

17    As to her reasons for giving those instructions, Mr Bampton deposes only that she had taken the advice of her lawyers at the time “without fully understanding” that her son’s claim was being “fundamentally changed”.

18    While Ms Bampton deposes that she did not “fully understand” the significance of the amendments to which she had assented, her affidavit does not suggest that she was not advised of the relevant consequences. Further, while Ms Bampton deposes that she had not wanted her lawyers to remove those aspects of the claim she does not suggest that she had expressed reluctance to accept the advice proffered by her son’s solicitors on either occasion.

19    Nor, contrary to what was submitted to be the case in October 2019, is there anything in the evidence before me to suggest that counsel was not consulted before the pleadings were amended. It appears uncontentious that after the pleadings had been amended, the Applicant’s then counsel Mr Hancock represented him in a Court ordered mediation.

The application

20    The Further Amended Concise Statement filed on 24 April 2019 reduced the claims that Ms Bampton was bringing on behalf of her son to (in crude summary) the propositions that:

(a)    between November 2016 and June 2017, Mr Morsman had been permitted to attend school only on condition that he would be medicated; and

(b)    his permitted attendance at school had in any case been extremely limited; and

(c)    he had been suspended due to aspects of his behaviour as were related to his disability.

21    All of those complaints were pleaded as acts of unlawful direct discrimination that was said to have occurred because of Mr Morsman’s disability.

22    The claims that were removed from those earlier pleaded were allegations to the effect that for the whole of Mr Morsman’s time at Peninsula Specialist College the Respondent had failed to provide certain adjustments that he had required to access his educational potential. Those, in broad terms, are the claims that leave is now sought to restore in this proceeding.

23    However, as Ms Latif submits, that is true only in general terms. The leave sought goes further. As the Respondent’s written submissions identify:

2.5     This application is not merely an application to reinstate previously withdrawn allegations. The majority of allegations included in the draft concise statement before the Court are different to previous iterations of the Applicant’s pleading. In addition to amending the presentation of the existing claims, the Applicant is seeking leave to:

2.5.1    expand the claim period to include the years 2013 to 2015, with the consequence that the number of respondent witnesses for trial will likely double;

2.5.2     reinstate in condensed form the Fifth, Sixth and Seventh Allegations contained in the original Statement of Claim (dated 8 October 2018) (“Fourth Allegation” in the draft concise statement), doubling the claims to be determined and adding reasonable adjustments to the list of issues for final hearing;

2.5.3    an amended form of the Eighth and Ninth Allegation contained in the original Statement of Claim ("Fifth Allegation" and “Sixth Allegation” in the draft concise statement), adding a new claim of indirect discrimination to the issues for final hearing.

(Footnote omitted).

24    In support of the application Mr Morsman’s now counsel, Mr Lewis, relies on the affidavit of Ms Bampton to which I have earlier referred. Mr Morsman also relies on two expert reports of a Dr Gonzales: the first dated 28 December 2019 and the second dated 3 February 2020.

25    Ms Latif does not object to the Court having regard to those materials on this application. However, she asks the Court to receive the reports prepared by Dr Gonzales not as proof of the truth of what is asserted, but rather as evidence going to the nature of the issues that are relevant to the interlocutory application. I proceed on that basis.

26    Also before the Court is the Applicant’s proposed Second Further Amended Concise Statement. The Applicant has provided to the Court a detailed accompanying Schedule, in which certain terms that are referred to in that document are defined and explained. It was lodged with the Court as a draft document on 25 May 2020. Mr Lewis also helpfully provided the Court with a “track changes” version of the draft amended pleading. Reference to that version has permitted the Court to readily identify the proposed amendments.

Principles to be applied

27    There is no dispute between the parties as to the principles that the Court should adopt in deciding this application. Ms Latif described the parties as being in “heated agreement” in that regard. The Respondent’s references to those principles appear at paragraphs [3.1] to [3.6] of its written submissions. The Applicant’s articulation of those principles appear at paragraphs [2] to [4] of his written submissions. Absent any substantive disagreement, it is unnecessary to dwell on those submissions. The summary provided by Charlesworth J in Australian Building and Construction Commissioner v McDermott [2017] FCA 504 (as Mr Lewis cites in his submissions) usefully identifies the principal considerations:

…The same philosophy underlying the decision in Aon Risk Services can now be discerned in s 37M of the FCA Act: Cement Australia at [43]. To similar effect, the Full Court on appeal in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 at [125] approved this summary of relevant factors given by Gleeson J at first instance (Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 at [127], citations removed):

(1)    The nature and importance of the amendment to the party applying for it;

(2)    The extent of the delay and the costs associated with the amendment;

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown;

(4)     The explanation for any delay in applying for that leave;

(5)    The parties’ choices to date in the litigation and the consequences of those choices;

(6)    The detriment to other litigants in the Court; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

(Footnote omitted).

Consideration

28    I have been greatly assisted by the good sense of the parties in the way in which they have advanced their submissions. In the course of doing so, they have narrowed the range of issues in dispute.

29    In the course of oral argument Ms Latif submitted that there are some significant differences in the way in which the Applicant would now seek to articulate the First, Second and Third Allegations in his proposed Second Further Amended Concise Statement. However, she acknowledged that in substance those allegations simply advance with greater precision claims that would have been capable of being advanced at trial under the existing pleadings. Ms Latif accordingly sought instructions in that regard. She then advised the Court that the Respondent no longer pressed its objection to those amendments being made.

30    I thank Ms Latif for that advice. On that understanding, I am content that I should order that the Applicant have leave to amend his pleadings in respect of those matters which are set out under the headings: “Background”; “Disabilities”; “Discrimination”; “Education”; and “Direct Discrimination” under the subheadings “First Allegation: Exclusion from Education”, “Second Allegation – Suspension from school” and “Third Allegation: Requirement to take medication - February 2017 onward”.

31    Mr Lewis, for his part, was equally constructive in narrowing the areas of dispute. Mr Lewis acknowledged that the claim that the Applicant now seeks leave to press in his proposed pleadings under the heading “Fourth Allegation: Failure to make reasonable adjustments to allow Riley [Morsman] the opportunity to learn to his potential” is a claim of direct discrimination contrary to s 5 of the Disability Discrimination Act 1992 (Cth). Mr Lewis acknowledged that that claim and other new claims the Applicant seeks to advance, being allegations of indirect discrimination as proposed to be pleaded in the alternative as his Fifth and Sixth Allegations, are mutually inconsistent.

32    The Court, of course, accepts that a party is entitled to plead mutually inconsistent claims when they are commencing a proceeding. As is self-evident however, this proceeding is not at a point at which it is being commenced. Rather, as Ms Latif submits, the proceeding is at a point at which the Applicant now seeks leave to make substantial changes to the pleadings for at least the fifth time. More specifically, the Court now faces a circumstance where - after apparently considered decision making by the Applicant’s former legal representatives, there being no evidence advanced to suggest otherwise - leave is now sought to reinstate pleadings earlier abandoned after discussion with the Respondent’s legal representatives. Mr Lewis further did not dispute that to make good any of the new claims would be time consuming, and challenging.

33    Having considered the forensic options open to the Applicant, Mr Lewis therefore advised the Court that - consistently with his own articulation of the relevant principles and having regard to what the High Court had determined in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 - the Applicant accepted that it was not open to him at this late stage to obtain leave to amend his pleadings as would permit him to revive several mutually inconsistent claims. Mr Lewis accepted that it would be appropriate, having regard to those principles, for the Applicant to now be required to choose how his case would be articulated.

34     Mr Lewis accordingly advised that the Applicant no longer sought leave to amend his pleadings so as to advance a case relying on indirect discrimination. He thus no longer pressed for the inclusion of the proposed Fifth and Sixth Allegations. I am grateful to Mr Lewis for that concession. I proceed on that basis.

35    That leaves for decision whether or not leave should be granted to the Applicant to amend his pleadings to advance the Fourth Allegation. What is asserted in the Fourth Allegation is that for the period Mr Morsman attended the Peninsula Specialist College the Respondent failed to make reasonable adjustments (as defined in his proposed pleading) to allow him to achieve his academic potential.

36    The reasonable adjustments that the Applicant wishes to plead should have been made to allow him to achieve that potential are those set out at paragraph [17] of the draft Second Further Amended Concise Statement as follows:

17.1    The provision of a Functional Behaviour Assessment as defined in the Schedule;

17.2    The provision of a Behaviour Intervention Plan as defined in the Schedule;

17.3    The provision of a comprehensive Speech Pathology Assessment and Speech Therapy as defined in the Schedule;

17.4    The provision of a Comprehensive Education Assessment and Individual Education Plan as defined in the Schedule.

37    As the pleading indicates, the relevant terms are defined in the Schedule. Thus, where it is proposed to be pleaded that the Respondent failed to provide Mr Morsman with a “Functional Behaviour Assessment” that term is defined in the Schedule to mean an assessment designed to:

1.     identify and define target behaviour through data collection and analysis;

2.     use observations and information from a variety of sources to identify when challenging behaviour occurs, and the associated environmental events or bio-behavioural states;

3.     generate and if necessary, test, hypotheses concerning events that preceded the occurrence of the behaviour, contingencies maintaining the behaviour, and the characteristics and patterns of challenging behaviour itself (a Functional Analysis); and

4.     inform the development of a Behaviour Intervention Plan by the assessor, or someone supervised by the assessor, which is then:

a)     monitored and evaluated for its effectiveness by the author through analysis of data collected, at a frequency determined by the frequency of the targeted behaviours;

and

b)     altered commensurate with evaluation.

38    A “Behaviour Intervention Plan” is defined in the Schedule as containing “all the following documented components”:

1.     Identifying information, including the name, age, and other identifying information about the student, the date of implementation of the plan, and the settings in which the plan is to be implemented;

2.     Operational definitions of the behaviours to be targeted, namely definitions that are objective, observable, and measurable;

3.     The hypothesised or identified function of the challenging behaviours targeted for decrease (functional assessment data);

4.     The replacement behaviours targeted for increase, namely behaviours that allow the individual to access the reinforcers maintaining challenging behaviour in more socially appropriate ways;

5.     Proactive strategies that are designed to minimise the likelihood of challenging behaviour and maximise the likelihood of appropriate/replacement behaviour, such strategies:

a)     specifying how and when the therapist/teacher/parent should prompt the occurrence of appropriate/replacement behaviour; and

b)     how often reinforcement should be delivered for appropriate/replacement behaviour;

6.     Teaching strategies that specify how therapists/parents/teachers will teach new skills, such strategies specifying:

a)     how and when the therapist/teacher/parent should prompt the occurrence of the new behaviour; and

b)     how often reinforcement should be delivered for the new behaviour;

7.     Consequence strategies that describe how therapists/parents/teachers should respond if challenging behaviour occurs;

8.     Data collection procedures:

a)     that staff are trained in;

b)     specifying how target behaviours will be increased or decreased, written in terms that allow others to observe and measure the behaviours;

c)    that require changes to the behaviour plan based on progress, as indicated by recorded data;

9.     Duration of plan/criteria for mastery of plan that specifies how long the plan will be in place, and any criteria that should be met before fading out the plan.

39     A “Comprehensive Speech Pathology Assessment” is defined in the Schedule as being, “in an educational setting”:

an assessment to determine if and how a person’s language abilities may affect their access to the curriculum in order to:

1.     inform a speech/language therapy regime;

2.     develop a plan with goals, strategies and measurable outcomes to ensure that the student could access the curriculum to the best of their abilities;

3.     set out how those methods could be used to ensure full access to the curriculum;

4.     monitor and evaluate the plan on an ongoing basis to ensure that any language barriers to accessing the curriculum on the same basis as others are addressed.

40    What is meant by “speech therapy” is defined in the Schedule as:

at least fortnightly dedicated appointments with a Speech Pathologist to provide Riley [Morsman] with one of the following, depending on the results of his Comprehensive Speech Pathology Assessment:

a)     direct assistance to improve his articulation; and/or

b)     direct assistance to learn to communicate through an alternative low or high technology communication method.

41    A “Comprehensive Education Assessment” is defined in the Schedule as containing the following elements (having regard to “several of the Respondent’s guidelines”);

1.     Identifying the impact that a student’s disabilities are having upon that student’s access to the curriculum and social aspects of their school life, and what supports are required to facilitate such access.

2.     Gathering information to develop an Individual Education Plan.

3.     Ascertaining the effectiveness of any strategies/supports that are in place throughout the relevant period to assist students in accessing their education.

4.     Identifying appropriate scheduling of future needs assessments.

5.     Undertaking consultation regarding a student's mental health, as affected by their schooling.

6.     Undertaking data collection concerning academic progress.

7.     Monitoring, evaluation and review of academic and social progress.

8.     Analysing (upon finding a lack of or inadequate academic and social progress) the reason for such lack of or inadequate progress, and subsequent alteration of teaching interventions.

9.     Undertaking the above steps at least once per school term.

10.     Involving:

a)     the student and parent;

b)     school staff directly responsible for teaching the student;

c)     independent allied health professionals (speech pathologist, educational psychologist or neuropsychologist) in circumstances where the student's progress was found to be impeded by that student’s disabilities and unsuccessfully mitigated.

42    Finally, an “Individual Education Plan” (assuming that the word “documented”, which does not appear in the draft pleadings, appearing may be ignored) is defined in the Schedule as follows:

“A documented Individual Education Plan” means a plan that every year includes:

1.     Goals for learning:

a)     functional literacy;

b)     functional numeracy;

c)     life skills;

d)     speech pathology (in the absence of a dedicated     communication plan).

2.     Strategies, including those for:

a)     in the absence of a dedicated communication plan:

i.     improvement of speech/articulation;

ii.     improvement of comprehension;

b)     expanding vocabulary;

c)     expanding sentence construction;

d)     improving spelling;

e)     addressing his sensory issues, including direct occupational therapy;

f)     understanding social expectations including visual rules and social stories;

g)     any strategies recommended in practitioner reports.

3.     Measurable outcomes in order that strategies applied can be monitored for success and altered commensurate with monitoring results.

43    It will readily be seen that what the proposed Fourth Allegation asserts, having regard to those definitions, is that the Respondent failed to provide a very particular, detailed and specific programme of assessments and interventions in the provision of Mr Morsman’s schooling.

44    I take the underlying proposition to be that absent those assessments and interventions “as defined” being made available to him, Mr Morsman was denied the opportunity to achieve his academic potential. Thus at paragraph [18] of the proposed Second Further Amended Concise Statement the Applicant proposes to plead that he was treated less favourably than other students without a disability by reason of the school’s asserted failure to provide those adjustments.

45    At paragraph [19] of the proposed Second Further Amended Concise Statement the Applicant then proposes to plead that the reason Mr Morsman was not provided with the adjustments he required was:

because the respondent systematically withholds the adjustments from children with Riley’s disabilities.

46    Ms Latif stopped shy of submitting that such a pleading must be struck out. However, she submitted that the Court is entitled to take into account whether a claim pressed before it has any reasonable prospect of success. I do not take that proposition to be contentious.

47    Having regard to that submission, the Court inquired of Mr Lewis as to the approach that he proposed to take to make good the case that he sought to advance in paragraphs [18]-[19] of the proposed Second Further Amended Concise Statement. In response, Mr Lewis acknowledged that proving the Applicant’s case in those regards would be challenging. He submitted that he intended to call witnesses to adduce either tendency evidence or evidence going to the existence of a relevant system of practice.

48    Mr Lewis is correct to acknowledge that that would be challenging. As to tendency evidence, the Evidence Act 1995 (Cth) requires a number of formalities to be complied with before such evidence may be adduced. It may be difficult to comply with those steps. As to the difficulty of asserting from a series of unique instances that a system exists, I refer to what was said in Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; 266 FCR 631 per Allsop CJ, Middleton and Mortimer JJ at [208].

49    Such methods of proof, if challenging, can for present purposes be accepted to be theoretically available. At a more fundamental level however, it appears to the Court that the proposition that the Applicant seeks to advance in his proposed Fourth Allegation (being that the Victorian Department of Education systemically withholds reasonable adjustments required by students who have Autism Spectrum Disorder, because they have that disability) is by reason of its inherent implausibility likely to be attended with more than ordinary difficulty in those regards.

50    Having dealt with those preliminary matters, I return to the list of considerations listed at paragraph [27] above that both parties accept are relevant to the disposition of this application. I do so acknowledging that each case turns on its specific circumstances, and without suggesting that that list is exhaustive.

51    The first factor identified by Justice Charlesworth is the nature and importance of the amendment to the party applying for it. Insofar as the Applicant’s litigation representative Ms Bampton speaks for herself and for Mr Morsman, I have no reason to doubt anything to which she deposes in her affidavit. I accept that she is strongly of the view that it is of great importance that she is able to articulate every aspect of the case that she sought to advance before the AHRC. That case included that Peninsula Specialist College did not make adjustments of the kind which - she wishes to plead - would have allowed her son to access his educational potential. This factor speaks in strongly favour of permitting the Applicant’s Fourth Allegation to be advanced: notwithstanding that his litigation representative had earlier given instructions to abandon it, albeit without fully appreciating the significance of that course.

52    However, most other factors weigh against granting the Applicant the leave that he seeks.

53    The second factor, the extent of the delay and the costs associated with the amendment, clearly weighs against amendment. I have already touched on the challenges of proof that paragraphs [18] and [19] of the proposed Second Further Amended Concise Statement present. Calling a sufficient body of witnesses as might be put forward to give evidence to prove the pleaded system - assuming that that project is not later abandoned - would add to the trial’s length and expense.

54    The third factor, the prejudice to the Respondent that might be assumed to follow from the amendment, could at this time be assuaged by an order for costs thrown away. Going forward however, I accept Ms Latif’s submission that given the detail of what is proposed to be pleaded as the reasonable adjustments which were withheld from the Applicant, the way in which the Respondent might need to conduct its defence could potentially increase its costs to a marked degree.

55    The fourth factor is the explanation for any delay in applying for leave to amend the pleadings. Ms Bampton’s explanation is that as the Applicant’s litigation representative, she did not fully understand that to which she was consenting when she accepted the advice of Mr Morsman’s former solicitors. Her explanation negatives any suggestion of want of good faith on the part of those solicitors, or herself. However, that it is not an affirmative reason to grant the application. In the circumstances, I regard the fourth factor as neutral in the mix.

56    The fifth factor, the parties’ choices to date in the litigation and the consequence of those choices, stands strongly against granting the leave that is sought. The instructions requested by the Applicant’s former lawyers, which Ms Bampton provided, have not been challenged as having been improperly motivated or forensically unsound. Allowing a reversal will turn a focussed and tightly pleaded action into a wider, more costly inquiry: without the Applicant having established that the wider claim has any reasonable prospect of success.

57    The sixth factor is whether there will be detriment to other litigants in the Court. In that regard I take it not to be in dispute that if leave is granted the length of the trial will potentially be significantly increased. The degree to which that will be so is impossible at this present stage to determine. Nonetheless, I accept that the resources of the Court and accordingly the opportunities for other litigants to access its services would be disadvantaged if the amendments were permitted.

58    The seventh and final factor, the potential loss of public confidence in the legal system which can arise where a Court is seen accede to applications made without adequate explanation or justification, also weighs against the grant of leave.

59    Thus, save for the first factor which weighs heavily in favour of permitting the pleadings to be amended, the other factors are either neutral or weigh against the Court granting the leave sought. On the whole, I am satisfied that in the balance those factors - understood holistically - favour the Court exercising its discretion to refuse leave in the circumstances of the present case.

60    I should also refer briefly to one other consideration that has influenced my reasoning in the same direction. I understand that Mr Lewis points to Dr Gonzales’ expert reports to establish that what the Applicant seeks leave to plead by the Fourth Allegation has a plausible foundation.

61    Neither of Dr Gonzales’ expert reports give support to the claim the Applicant wishes to plead regarding the denial of certain relevant adjustments to the Applicant by his school. For example, the first two adjustments defined in the Schedule to the Proposed Second Further Amended Concise Statement are a “functional behaviour assessment” and a ‘behaviour intervention plan’. The Applicant’s proposed pleading is premised on Mr Morsman having required those adjustments, because his “bad” behaviour at school was caused by his disability. He therefore needed those adjustments to permit him achieve his academic potential.

62    The difficulty is that Dr Gonzales’ December 2019 report refers at page 12 to his mother, Ms Bampton, having only mild concerns about her son’s emotional control and behavioural regulation. Further, the report suggests that Ms Bampton had no concerns about the cognitive aspects of those skills. At page 14, Ms Gonzales then expresses her expert opinion that Mr Morsman does not meet the diagnostic criteria for any behavioural disorder, including oppositional defiance disorder. At page 3, she also observes that Ms Bampton has advised her that her son now attends Bittern Primary, a mainstream school, where he has flourished. She states:

Ms Bampton reports that an aide is present most of the time, but this was deliberately reduced in the last few months of grade 6 to develop his independence. Ms Bampton reported that he coped well with this change and has become more independent as a result.

63    The, while Ms Gonzales’ reports do overlap with some aspects of what the Applicant would wish to plead they fail to speak to other such matters. There appears to be nothing to engage with the detailed assertion of a need for any “adjustment” premised on Mr Morsman’s disability causing “bad” behaviour.

64    The area where Mr Gonzales’ report does overlap most significantly with the contentions proposed to be advanced in the Second Further Amended Concise Statement is the section addressing her expert opinion that Mr Morsman should have had access to speech pathology. That was also one of the matters raised in Ms Bampton’s complaint to the AHRC.

65    In my view, although the Court should refuse leave to the Applicant to plead in his proposed Second Further Amended Concise Statement the Fourth Allegation of direct discrimination as proposed, it would not be inappropriate against those circumstances to give leave to the Applicant to revert to the Court within 28 days if he wishes to apply for leave to advance a narrower claim. That claim should be restricted to an asserted denial of the provision of speech therapy. Such a narrower case would arguably address (at least in part) Ms Bampton’s wish to advance the claims that she identified in her original complaint to the AHRC. However, it would achieve that end without requiring the Respondent to respond to a claim that is sprawling; disconnected from the expert evidence adduced; and highly improbable of being made good.

66    If such a proposed amendment is sought, I will relist the matter to determine any objections that may be advanced to leave being granted.

Orders

67    Accordingly, I will order that the Applicant be given leave to file and rely upon his proposed Second Further Amended Concise Statement (including the Schedule) save insofar as it would add the proposed Fourth, Fifth and Sixth Allegations.

68    I will however order that the Applicant have leave to file a further application within 28 days seeking leave to further amend his pleadings to include a narrower version of what is presently sought to be pleaded in the Fourth Allegation of the draft Second Further Amended Concise Statement: limited to circumstances that fall within Ms Gonzales’ evidence that Mr Morsman was improperly not provided with speech pathology.

69    I have heard the parties on the issue of costs. Ms Latif sought an order for costs on behalf of the Respondent on the basis that costs should follow the event, and that the Respondent had been substantially successful. She further submitted that the Applicant by his interlocutory application had sought an indulgence of the Court. Mr Lewis has highlighted the challenging financial circumstances of Ms Bampton (although I do not consider that to be a relevant consideration). Having regard to the partial success of the application, I consider that the order that appropriately balances the parties’ interests is an order that the costs of and incidental to the interlocutory application be the Respondent’s costs in the cause. I will so order.

Associate:

Dated:    3 June 2020