FEDERAL COURT OF AUSTRALIA
Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770
ORDERS
First Applicant SILVANA IZZO Second Applicant | ||
AND: | STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The following sections of the second further amended statement of claim (the statement of claim) be struck out:
(a) the third allegation ([38]-[52]);
(b) the fourth allegation ([53]-[59]);
(c) the fifth allegation ([60]-[65]);
(d) the sixth allegation ([66]-[72]);
(e) the ninth allegation ([88]-[97]); and
(f) the tenth allegation ([98]-[105]).
2. Within 30 days, the applicants provide further particulars of:
(a) the expressions, “trigger situations” and “help to avoid trigger situations” as set out in [15], [17], [22], [27.4] and [27.5] of the statement of claim;
(b) the references to “expert assistance to avoid trigger situations” and “the Respondent’s behaviour/pro-social policies” in [18] of the statement of claim; and
(c) the meaning of the words “successfully access the curriculum” in [81] of the statement of claim.
3. The respondent’s interlocutory application otherwise be dismissed.
4. The applicants have leave to file and serve, within 30 days, a third further amended statement of claim.
5. In relation to the costs of the respondent’s interlocutory application:
(a) within 14 days, each party file a written submission of no more than two pages; and
(b) the issue of costs be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MOSHINSKY J:
Introduction
1 By interlocutory application dated 13 March 2020, the respondent, the State of Victoria, applies pursuant to r 16.21 of the Federal Court Rules 2011 for an order that certain paragraphs of the applicants’ second further amended statement of claim (the statement of claim) be struck out. Further or in the alternative, the respondent applies pursuant to r 16.45 of the Federal Court Rules for an order that the applicants provide further and better particulars of certain allegations in the statement of claim.
2 The first applicant is aged 14 years. The proceeding is brought on his behalf by his mother as his litigation guardian. The second applicant is the first applicant’s mother. The applicants claim that the respondent, through the Department of Education and Training, breached the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act or DDA). The statement of claim alleges both direct and indirect discrimination on the basis of the first applicant’s disability. It is also claimed that the respondent failed to make reasonable adjustments.
Procedural history
3 The proceeding, which is brought under the Australian Human Rights Commission Act 1986 (Cth), was commenced in 2018. The applicants have filed and served four iterations of their pleading. The respondent filed a defence to the third iteration. The applicants filed a reply to the defence. Each of the second, third and fourth iterations of the statement of claim was preceded by correspondence between the parties in which solicitors for the respondent sought to identify and bring to the applicants’ attention deficiencies in the earlier iteration.
The interlocutory application
4 In support of its application, the respondent relies on an affidavit of Caitlin Ible, a solicitor employed by the respondent’s solicitors, affirmed on 16 March 2020. This sets out the procedural history of the proceeding, including earlier pleadings filed by the applicants and the correspondence in relation to those pleadings.
5 The applicants rely on an affidavit of Tom Cobban, a principal solicitor at the applicants’ solicitors, affirmed on 30 April 2020. The affidavit supplements the procedural history of the proceeding and indicates that some of the criticisms of the statement of claim were not raised in relation to the earlier iterations. The affidavit also annexes certain documents referred to in the statement of claim.
6 On 24 March 2020, the Court made orders by consent facilitating the determination of the interlocutory application on the papers. Pursuant to those orders, the respondent filed written submissions dated 9 April 2020 and the applicants filed written submissions in response dated 30 April 2020.
Applicable principles – strike out
7 The respondent relies on paragraphs (c), (d), (e) and/or (f) of r 16.21(1) of the Federal Court Rules. Those paragraphs provide as follows:
(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
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
8 The principles and rules governing pleadings generally apply to proceedings that involve the Disability Discrimination Act: Varasdi v State of Victoria [2018] FCA 1655 at [3]. In Varasdi, O’Callaghan J adopted the following summary of the relevant principles, about which there was no dispute in that case:
5 A pleading must ensure that the opposing party can know, with sufficient clarity, the case which it is required to meet; it must state all the material facts to establish a reasonable cause of action; and it must be in intelligible form. It cannot be vague, ambiguous, inconsistent or lacking in coherence.
6 Further, a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background or a factual matrix which does not lead to the making out of any defined cause of action, particularly if the offending paragraphs tend to obfuscate the issues to be determined. Nor is it appropriate to plead evidence, or the means by which a matter is said to be proved.
7 The DDA is not an adequate vehicle for addressing all complaints that a student’s parent might have about the manner in which educational services have been provided to a child: Walker v State of Victoria [2012] FCAFC 38 at [72] (Gray J with whom Reeves J agreed); Kiefel v State of Victoria [2013] FCA 1398 at [4]-[6] (Tracey J). It does not empower the Court to undertake a general inquiry into the best interests or the vulnerabilities of a child with disabilities: Walker v State of Victoria [2012] FCAFC 38 at [73] (Gray J, with whom Reeves J agreed).
8 “[T]he legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the [DDA] are not pursued, and that those that are pursued are related clearly and directly to the provisions of the [DDA]”: Walker v State of Victoria [2012] FCAFC 38 at [114], cited in Kiefel v State of Victoria [2013] FCA 1398 at [2].
9 A pleading under the DDA must put the respondent on notice of the case it is required to meet, rather than asking the respondent or the court to identify a case for it. The pleading must do “more than scope out the nature of the problem, and leave it to the trial of the action for the content of the respondent's omissions to become apparent”: Sievwright v State of Victoria [2013] FCA 964 at [48] (Jessup J).
10 In a proceeding alleging direct discrimination, it is necessary to identify with particularity the matters said to give rise to the claim of direct discrimination under the DDA: Kirk v Industrial Court of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531 at [28] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wade v State of Victoria [2012] FCA 400 at [6] (Bromberg J).
11 An allegation that a reasonable adjustment is required must be pleaded with precision: Wade v State of Victoria [2012] FCA 400 at [6]; Lambert v State of Victoria [2014] FCA 1064 at [36].
9 See also Harvey v Dioceses of Sale Catholic Education Limited (St Joseph’s Primary School Wonthaggi) [2019] FCA 1714 at [8]-[12].
Applicable principles – disability discrimination
10 Section 5 of the Disability Discrimination Act, dealing with direct discrimination, provides as follows.
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.
11 “Disability” is defined in s 4(1), but it is not necessary to set out the definition for present purposes.
12 The expression “reasonable adjustment”, which is used in s 5(2), is defined in s 4(1) in the following way:
an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
13 The meaning of “unjustifiable hardship” is affected by s 11 of the Disability Discrimination Act, which provides:
11 Unjustifiable hardship
(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
(2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
14 Section 6 of the Disability Discrimination Act, dealing with indirect discrimination, is in the following terms:
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.
15 The Disability Discrimination Act applies in a number of contexts, including education (s 22). In particular, s 22(2) provides:
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
16 Section 5(1) of the Disability Discrimination Act requires a causal link between the disability and the discriminator’s conduct. This is made clear by the phrase “because of the disability, the discriminator treats …”. In Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis), in relation to an earlier version of s 5(1) expressed in similar terms to the provision as set out above, Gummow, Hayne and Heydon JJ said at [236]:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.
17 In the same case, Gummow, Hayne and Heydon JJ said the following (at [213]) in relation to the nature of the inquiry required by s 5(1):
Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability “in circumstances that are the same or are not materially different”. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s 5(1) is “a person without the disability”.
18 Section 5(2) of the Disability Discrimination Act effectively imposes a positive obligation to make “reasonable adjustments” in certain circumstances. This provision was introduced by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The background to, and reasons for, the introduction of s 5(2) were described by Mortimer J in Watts v Australian Postal Corporation (2014) 222 FCR 220 (Watts) at [15]-[20] and by Bromberg J in Sklavos v Australasian College of Dermatologists (2017) 256 FCR 241 at [34]-[35]. See also Rees N, Rice S and Allen D, Australian Anti-Discrimination Law (2nd ed, The Federation Press, 2014) at [6.3.6.15]-[6.3.6.17].
19 In Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207, the Full Court of this Court (Flick, Reeves and Griffiths JJ), at [146], noted that the term “adjustment” is not defined in the Disability Discrimination Act and stated that, as Mortimer J had concluded in Watts at [22], the term is therefore to be given its ordinary meaning, which is “an alteration or modification”.
Overview of the statement of claim
20 Before considering each of the parts of the statement of claim identified in the respondent’s interlocutory application, I provide a brief overview of the pleading. The statement of claim is a lengthy document comprising 137 paragraphs over 52 pages (although this includes certain deleted allegations that have been struck-through). In addition, there are three annexures. Section A of the statement of claim sets out the relationship between the applicants and the respondent. It is alleged that the first applicant attended Fitzroy Primary School from May 2015 to April 2018. The period of the claims, defined as the “relevant period” in the statement of claim, is from May 2015 to March 2018.
21 Section B of the statement of claim alleges that the first applicant has certain disabilities within the meaning of s 4 of the Disability Discrimination Act. These are set out in [8.1]-[8.8] of the statement of claim and comprise:
(a) sensory processing disorder;
(b) auditory processing disorder;
(c) encopresis associated with externalising behaviour and distress;
(d) sleep disorder;
(e) metabolic disorder;
(f) anxiety/anxiety symptoms;
(g) behaviours of concern that are a symptom or manifestation of the first applicant’s processing disorders, anxiety, encopresis, and ADHD with associated oppositional defiant disorder, namely:
(i) verbal aggression/swearing;
(ii) throwing furniture;
(iii) destruction of property;
(iv) attacking students;
(v) kicking;
(vi) punching;
(vii) pushing;
(viii) slapping; and
(ix) absconding
(referred to as “behaviours of concern” in the statement of claim); and
(h) the condition later diagnosed as ADHD with oppositional defiant disorder/symptoms of ADHD with oppositional defiant disorder (referred to as “ADHD” in the statement of claim).
22 Section C of the statement of claim sets out details of the alleged discrimination. It is alleged at [9] that the respondent was notified of the first applicant’s disabilities on certain specified dates. At [10], it is alleged that certain benefits are provided by the respondent within the meaning of s 22(2) of the Disability Discrimination Act. The balance of Section C of the statement of claim is structured under the following headings:
(a) First Allegation: Exclusion – Detention and Suspension ([11]-[28]);
(b) Second Allegation – this allegation has been deleted;
(c) Third Allegation: Reasonable Adjustment – Functional Behaviour / Behaviour Intervention Plan ([38]-[52]);
(d) Fourth Allegation: Reasonable Adjustment – Engagement of Treating Practitioner ([53]-[59]);
(e) Fifth Allegation: Reasonable Adjustment – Application of the Positive Planning Matrix ([60]-[65]);
(f) Sixth Allegation: Reasonable Adjustment – Comprehensive Assessment and Individual Education Plan ([66]-[72]);
(g) Seventh Allegation: Reasonable Adjustment – Continence Assessment and Plan [73]-[79]);
(h) Eighth Allegation: Reasonable Adjustment – One to One Assistance ([80]-[87]);
(i) Ninth Allegation: Reasonable Adjustment – Implementation of the Behaviour Intervention Plan ([88]-[97]);
(j) Tenth Allegation: Reasonable Adjustment – Coordinated Safety/Response Plan ([98]-[105]);
(k) Eleventh Allegation: Less Favourable Treatment – reporting the first applicant to Victoria Police ([106]-[114]);
(l) Twelfth Allegation – this allegation has been deleted;
(m) Thirteenth Allegation – Victimisation of the second applicant ([121]-[125]);
(n) Fourteenth Allegation: Breach of Disability Standards – Section 32 ([126]).
23 Section D of the statement of claim ([127]-[135]) contains allegations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
24 The relief sought by the applicants is set out in Section E of the statement of claim ([136]-[137]).
Consideration of the respondent’s strike-out application
25 I will now consider each part of the respondent’s strike-out application, by reference to the paragraph or section of the statement of claim that is challenged.
Paragraph 8.8
26 As noted above, section B of the statement of claim alleges that the first applicant has certain disabilities within the meaning of s 4 of the Disability Discrimination Act. These are set out in [8.1]-[8.8] of the statement of claim. For present purposes, the relevant allegation is that contained in [8.8]. That paragraph identifies the following as one of the first applicant’s disabilities:
8.8 The condition later diagnosed as ADHD with oppositional defiant disorder/symptoms of ADHD with oppositional defiant disorder (“ADHD”).
8.8.1 Letter dated 27 October 2018 from Dr Rick Jarman, Consultant Paediatrician.
27 The condition referred to in [8.8] is included in the list of disabilities causing the behaviours of concern in [8.7].
28 The respondent seeks strike out of [8.8] and all subsequent references to ADHD/ODD, that is, ADHD with oppositional defiant disorder/symptoms of ADHD with oppositional defiant disorder, on the basis that the pleading (a) fails to disclose a reasonable cause of action or (b) is likely to cause prejudice, embarrassment or delay.
29 The respondent makes the following submissions:
(a) The applicants’ claims relate to the period 2015 to 2017. The diagnosis of ADHD with oppositional defiant disorder is said to have been made in October 2018, well outside the claim period for the proceeding. The alleged disability was, accordingly:
(i) not disclosed to the respondent at any time during the claim period; and
(ii) not referred to or relied upon in the first applicant’s complaint to the Australian Human Rights Commission.
(b) On that basis, [8.8] and all other references to the diagnosis of ADHD and oppositional defiant disorder should be struck out.
(c) Further, as presently framed, the statement of claim relies on first applicant’s behaviours of concern as being the basis for the reasonable adjustments which the applicants assert should have been, and were not, provided to the first applicant. Whether those behaviours of concern were attributable to a disability, and the reasons why the alleged reasonable adjustments were or were not provided, will be central questions in the trial. It appears that extensive expert evidence will be required to establish relevant links between the behaviours of concern and the alleged disabilities, and in turn extensive lay evidence may be needed on the question of the reasons for any demonstrated failure to provide adjustments.
(d) A disability discrimination proceeding looks to the past and requires analysis of the way in which a person with a disability was treated during the claim period. Paragraph 8.8 substantially reframes what was known about the first applicant and his behaviours during the claim period. It imports a degree of unreality to the proceeding by requiring the respondent to have its actions in 2015 to 2017 analysed through the prism of a diagnosis made much later in time. The applicants are not entitled to rely on matters not in existence at the time of the alleged discrimination, particularly when the new diagnosis is quite distinct from the disabilities known and relied on during the claim period and at the time the complaint was made to the Australian Human Rights Commission.
30 I am not persuaded that the allegation in [8.8] or the subsequent references to ADHD/ODD should be struck out. As submitted by the applicants, a disability does not need to be diagnosed for it to be the basis of a complaint under the Disability Discrimination Act. This is apparent from the definition of “disability” in s 4 of the Act, which refers, among other things, to:
(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; …
31 For these reasons, while the absence of a diagnosis of the condition until after the relevant period may be relevant to other issues in the case, it does not, in my view, preclude the applicants relying on ADHD/ODD as a disability in [8.8] and subsequently in the statement of claim. Further, for the same reasons, it does not preclude the applicants referring to ADHD/ODD as one of the conditions giving rise to the behaviours of concern alleged in [8.7].
32 Insofar as the respondent contends that [8.8] of the statement of claim goes beyond the complaint to the Australian Human Rights Commission, it appears that the respondent relies on the limitation in s 46PO(3) of the Australian Human Rights Commission Act. That section relevantly provides:
46PO Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
…
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Having considered the terms of the complaint and of the amended complaint to the Australian Human Rights Commission (annexures “CI1” and “CI2” to Ms Ible’s affidavit), it is not clear that the allegations in [8.8] do not arise out of substantially the same acts, omissions or practices as those that were the subject of the terminated complaint. The relevant period in the statement of claim (namely, May 2015 to March 2018) does not go beyond the period of the complaint as at the time it was terminated: see Dye v Commonwealth Securities Limited [2010] FCAFC 118 at [47]. Although [8.8] of the statement of claim refers to a diagnosis in October 2018, this is relied on in respect of the relevant period in the statement of claim. Accordingly, I am not satisfied that this aspect of the claim goes beyond the limit in s 46PO(3).
Paragraph 10.3
33 Paragraphs 10 and 11A of the statement of claim are as follows:
10 The following are benefits provided by the Respondent within the meaning of s 22(2) of the DDA:
10.1 The provision of education by classroom instruction or teaching.
10.2 The provision of student support services in the form of psychologists, speech pathologists, social workers and other allied health professionals.
10.3 The provision of a social education by providing opportunities for students to learn social skills.
11A. The term “social”, in paragraph 10.3 and hereinafter, has the same meaning as that used in the Respondent’s document: “Effective Schools Are Engaging Schools”, and paragraph 4 of the Reply herein is referred to and repeated.
34 The respondent seeks strike out of [10.3] and all references to “social education” in the statement of claim on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay.
35 The respondent’s submissions are as follows:
(a) Paragraph 10.3 uses the term “social education” as one of the benefits allegedly provided by the respondent. The term is not defined and the purported definition in [11A] does not make it any clearer because the term is not in fact defined in the document referred to in the paragraph.
(b) The term “social education” is then used in each of the allegations the subject of this application in paragraphs alleging that the first applicant’s access to that social education was limited.
(c) Absent a proper definition of “social education”, it is impossible for the respondent to understand how it is said that the first applicant’s access to that alleged benefit was limited or denied.
36 I am not persuaded that [10.3] and the other references to “social education” should be struck out. Paragraph 10.3 of the statement of claim indicates that the concept of social education refers to “providing opportunities for students to learn social skills”. Further, [11A] refers to the document “Effective Schools Are Engaging Schools” and [4] of the reply. In that paragraph, the applicants set out a series of points apparently taken from the “Effective Schools Are Engaging Schools” document. While these points do not, in terms, provide a definition of “social education”, they convey the concept that is relied on by the applicants. For example, the document apparently refers in a number of places to the development of student “social competencies”.
First Allegation – Exclusion – detention and suspension
37 Allegation 1 relates to alleged detentions and suspensions and is pleaded in the alternative as:
(a) direct discrimination under s 5(1);
(b) indirect discrimination under s 6(1); or
(c) indirect discrimination under s 6(2).
38 All three alternatives rely on the related concepts of “trigger situations” and “help to avoid trigger situations”.
39 This section of the statement of claim, omitting some particulars and some other details, is as follows:
11 [The first applicant] was subjected to suspension and detention on a least the following occasions: …
12 The Respondent has breached Section 22 of the DDA on the ground of [the first applicant]’s disabilities, within the meaning of Section 5(1), by the actions set out in paragraph 11 above.
13 The suspensions and detentions constituted less favourable treatment within the meaning of Section 5(1), by reason of the following:
13.1 he was prevented from receiving an education by classroom instruction or teaching;
13.2 he was physically detained;
13.3 he was prevented from participating in social activities with other students at the times he was detained;
13.4 he had a form of punishment or negative consequence imposed upon him.
14 In the premises, by suspending [the first applicant] from Fitzroy Primary and subjecting him to detentions, the Respondent treated him less favourably than the Respondent would treat a student: with epilepsy, impulse control disorder or a different disability that compels or causes the individual with disability to take action that puts other students and teachers at risk of physical harm (the comparator) and thereby discriminated against him within the meaning of s 5(1) of the DDA.
15 Instead of suspending the comparator and giving them detentions when their actions put other students and other teachers at risk of physical harm, the Respondent would have helped the comparator to avoid situations that compel or cause them to take action that puts other students and teachers at risk of physical harm (trigger situations).
16 This less favourable treatment of [the first applicant] was because of all of his disabilities set out at paragraph 8 hereof, with the exception of metabolic disorder, and on the ground that he had those disabilities, and not other disabilities, within the meaning of ss 5 and 6 of the DDA.
17 Further or alternatively, the Respondent required [the first applicant] to comply with the requirement or condition that in order to obtain education by classroom instruction or teaching and avoid suspensions and detentions, students must not behave in a way that puts other students and teachers at risk of physical harm, without the Respondent’s help to avoid trigger situations (the requirement).
18 The help that was required and that was not provided to [the first applicant] was:
18.1 expert assistance to avoid trigger situations; and
18.2 the application of the Respondent’s behaviour/pro-social policies to him.
19 Because of all of his disabilities set out at paragraph 8 hereof, with the exception of metabolic disorder, [the first applicant] could not comply with the requirement.
20 The requirement is likely to have the effect of disadvantaging persons with [the first applicant]’s disabilities, with the exception of metabolic disorder, and imposing the requirement is discrimination on the ground of [the first applicant]’s disabilities within the meaning of s 6(1), because when those persons take action that puts other students and teachers at risk of physical harm:
20.1 they will be prevented from receiving an education by classroom instruction or teaching;
20.2 they will be physically detained;
20.3 they will be prevented from participating in social activities with other students at the times they are detained;
20.4 they will have a form of punishment or negative consequence imposed upon them.
21 Further or alternatively, the Respondent required [the first applicant] to comply with the requirement or condition that in order to obtain an education by classroom instruction or teaching and avoid detentions, students must not behave in a way that puts other students and teachers at risk of physical harm (the requirement).
22 Because of all of his disabilities set out at paragraph 8 hereof, with the exception of metabolic disorder, [the first applicant] could only comply with the requirement if the Respondent made an adjustment.
PARTICULARS
The adjustment required in order to enable [the first applicant] to comply with the above requirement was that he needed the Respondent’s help to avoid trigger situations.
23 The Respondent did not make the adjustment.
24 A significant benefit would accrue to [the first applicant] from the making of the adjustment in that [the first applicant] would not be suspended or given detentions and he would not suffer the detriments arising from this (as detailed in paragraph 13).
25 Making the above adjustment would not impose an unjustifiable hardship on the Respondent, within the meaning of s 11 of the DDA, and was therefore a reasonable adjustment within the meaning of s 4(1) of the DDA.
26 The Respondent’s failure to make the adjustment had the effect of disadvantaging persons with [the first applicant]’s disabilities, with the exception of metabolic disorder, by preventing them from obtaining education by classroom instruction or teaching, and from avoiding suspensions and detentions, when they behave in a way that puts other students and teachers at risk of physical harm, and the Respondent thereby discriminated on the ground of [the first applicant]’s disabilities within the meaning of s 6(2) of the DDA.
27 The requirements imposed by the Respondent were not reasonable, having regard to the circumstances of the case.
28 In the premises, the Respondent unlawfully discriminated against [the first applicant] by:
28.1 limiting the benefit of education by classroom instruction or teaching, student support services and the provision of a social education by providing opportunities for students to learn social skills, on the ground of his disabilities, contrary to s.22(2)(a) of the DDA, and
28.2 subjecting him to the detriment of being physically confined against his wishes, preventing him from participating in social activities with other students while detained; and having punishment or negative consequences imposed upon him, because of and on the ground of all of his disabilities set out in paragraph 8 hereof, with the exception of metabolic disorder, contrary to s.22(2)(c).
28.3 [the first applicant] refers to Annexures “B” and “C” to this Statement of Claim.
40 The respondent seeks strike out of the first allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent submits in summary as follows:
(a) In all three of the alleged alternatives (that is, direct discrimination within the meaning of s 5(1), indirect discrimination within s 6(1), and indirect discrimination within s 6(2)), the meaning and content of “trigger situations” and “help to avoid trigger situations” is unclear. The respondent cannot know: what is said to be the scope of these alleged “trigger situations”; or what is the nature of the “help” that it is suggested was not provided, absent which indirect discrimination under ss 6(1) or 6(2) is said to have occurred.
(b) To the extent that any definition of “trigger situation” is offered by [15], that definition is itself unhelpful and ambiguous.
(c) Similarly, while [18] refers to help as being “expert assistance to avoid trigger situations” and “the application of the respondent’s behaviour/pro-social policies”, neither of those terms is defined, meaning that the content of the help remains so unclear as to make a proper response impossible. The respondent is expected to identify for itself the circumstances in which it is alleged that the first applicant required help and the content of that help. This is not a permissible form of pleading.
(d) In the absence of proper definitions and particulars of relevant material facts, allegation 1 should be struck out.
41 In my view, the points raised by the respondent do not provide a basis to strike out the whole of this section of the statement of claim. The set of allegations contained in this section of the statement of claim is not shown to be wanting in logic. Subject to provision of further particulars, the claims are, on their face, conceptually available.
42 However, I consider that further and better particulars are required. The expression “trigger situations” is defined only in a generic way in [15] of the statement of claim; the pleading does not define with particularity the types of situations that were, in the first applicant’s case, triggers for him to put other students and teachers at risk of physical harm. For the avoidance of doubt, I do not consider it sufficient for the applicants to define the notion of “trigger situations” in the abstract as they do, for example, in [71] of their written submissions (“Triggers are actions or events that play a role in prompting particular behaviours”). I consider it necessary for the applicants to identify the specific types of situations that were triggers for the first applicant.
43 Insofar as the applicants refer at [18] to “expert assistance to avoid trigger situations”, I consider it necessary for the applicants to identify specifically (perhaps by reference to particular parts of the respondent’s document, “Effective schools are Engaging Schools Guidelines”) what that expert assistance would have entailed.
44 Further, insofar as the applicants refer as [18] to “the Respondent’s behaviour/pro-social policies”, these policies should be identified specifically (again, perhaps by reference to particular parts of the respondent’s document, “Effective schools are Engaging Schools Guidelines”).
Third Allegation – Reasonable adjustments – Functional Behaviour Assessment/Behaviour Intervention Plan
45 This section of the statement of claim alleges that the respondent directly discriminated against the first applicant within the meaning of s 5(2) of the Disability Discrimination Act by reason of a failure to make a reasonable adjustment in the form of a Functional Behaviour Assessment and a Behaviour Intervention Plan. The pleading does not contain material facts as to the content of any such assessment or plan. In the course of this section of the statement of claim, the applicants allege at [48]:
The Respondent would have made the reasonable adjustments needed in order to enable a person with vision impairment, hearing impairment, or a wheelchair user (the comparator) to reach their educational potential.
46 The respondent seeks strike out of the third allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions (omitting a submission relating to “social education”, which has been dealt with above) are, in summary, as follows:
(a) Paragraphs 39 and 40 of the statement of claim set out the content of what is alleged to be the reasonable adjustment. Those paragraphs outline two quite separate processes, each of which should be separately pleaded as a reasonable adjustment, and both of which, as presently pleaded, do not amount to a proper pleading of such an adjustment.
(b) As defined in [39], a Functional Behavioural Assessment is not a facultative or enabling mechanism to enable the first applicant to access the benefits of education. It is rather a tool of analysis, the fruits of which might be ideas for reasonable adjustments. The Disability Discrimination Act is not a means by which to mandate the conduct of certain kinds of analysis or to enforce the respondent’s guidelines. Paragraph 39 should accordingly be struck out as not disclosing a reasonable cause of action.
(c) To the extent that a Behaviour Intervention Plan as defined in [40] might be a reasonable adjustment, the pleading fails to plead material facts relating to what the practical content of the plan should have been. Paragraph 40 is a largely hypothetical list of what such a plan might contain rather than a proper particularising of what the reasonable adjustment was.
(d) Paragraphs 45 and 46 contain a number of assumptions of fact about the effect an assessment and plan would have had on the first applicant’s behaviour. The applicants will be required to make good those assumptions of fact in evidence at any trial of the proceeding. For the purposes of the present application, there is a complete absence of any pleading of material facts that would support those assumptions.
(e) Paragraph 48 refers to a comparator who has a physical disability. Such a comparator is not a student in “circumstances that are not materially different”. The proper comparator would be a student with a need for behavioural analysis and intervention but who did not have the disabilities the first applicant is alleged to have had.
(f) That comparator error having been made, [49] and [50] are deficient in failing to plead necessary material facts to substantiate the claim of less favourable treatment. Reliance on inferences requires the existence of material facts from which those inferences can be drawn. Here, the use of an inappropriate comparator means any attempt to draw inferences must fail. The allegation does not properly plead a causative link between the first applicant’s disabilities and the failure to make the reasonable adjustments.
(g) Paragraph 52 asserts a limitation on or denial of the first applicant’s access to education but does not give any material facts as to what that limitation or denial was. How was the first applicant’s access to education limited or denied by reason of there not being a Functional Behaviour Assessment or Behaviour Intervention Plan?
(h) Absent a pleading of those material facts, the entire allegation falls away and should be struck out.
47 The applicants respond to these submissions at [78]-[95] of their submissions. The applicants submit in summary as follows:
(a) In fact, the allegation concerns three (rather than two) distinct processes, the assessment, the plan and the implementation of the plan.
(b) Further, the assessment, the plan and the implementation of the plan (together defined as an “assessment” in the applicants’ submissions) together are “enabling or facultative”, in that this would enable the first applicant to obtain “any benefit provided by the educational authority” or the absence of which subjects the student “to any other detriment”: Watts at [23], [27]. It is not an outcome in itself. It identifies the adjustments that were not made, and that should have been made.
(c) So much seems to have been accepted by Tracey J in Kiefel v State of Victoria [2013] FCA 1398 (Kiefel) at [91]-[92] and by Rangiah J in Connor v State of Queensland (Department of Education and Training) (No 3) [2020] FCA 455 (Connor) at [297]-[337]; cf Snell v State of Victoria (Department of Education and Training) (Registrar Allaway, 8 August 2019) (Snell) at [40].
(d) The nub of the third allegation is that the respondent should have provided what the first applicant needed to mitigate his behaviours of concern and allow him to attend school without injuring himself and others; the third allegation is not limited to “analysis”. If it were otherwise, the respondent’s submission would be to the effect that an applicant cannot plead that the respondent should have provided what a student needed to address difficulties arising from the student’s disability. This cannot be right.
(e) The assessment (as defined in the applicants’ submissions) is an “adjustment” within the meaning of cl 3.3 of the Disability Standards for Education 2005 (Cth).
(f) As Mortimer J pointed out in Watts at [18], the explanatory memorandum for the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29], [35] “acknowledges the concept of ‘reasonable adjustments’ is drawn from the Convention on the Rights of Persons with Disabilities …, although the term in the Convention is ‘reasonable accommodation’”. Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia’s international obligations under the Convention. If there is a constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is consistent with those obligations should be preferred, insofar as the text and context otherwise allow.
(g) The demand in the respondent’s submissions for identification of the “content” of the assessment is, in essence, a demand that the applicants write and plead a complete functional behavioural assessment and also write and plead a complete individual education plan for each year of the first applicant’s education. This is obviously impossibly burdensome upon the applicants, and is unnecessary. The respondent does not refer to any authority to this effect, and it seems inconsistent with Kiefel and Connor.
48 In relation to the proper comparator issue, the applicants submit that: the respondent’s fundamental assertion is that the only available comparator is a person who behaves in the same way as the first applicant (e.g. putting others at risk) but who does not have the precise disability that the first applicant has and who also does not have any other disability; in Purvis, the majority held that “the required comparison is with a pupil without the disability; not a pupil without the violence” (at 101), but the majority did not hold that the comparator cannot have different disabilities; s 5(1) refers to “the disability” not “a disability”, indicating that the comparator may have a different disability; this is also clear from s 5(3) and is supported by Watts at [250]; the passage from Watts also points out the necessity of assessing the proper comparator with a full appreciation of the “circumstances of the case”, which include the relevant findings and conclusions of law; it is not possible to make this assessment in the absence of any evidence.
49 In my view, this section of the statement of claim should be struck out.
50 First, insofar as this section of the claim relies on the failure to carry out a Functional Behavioural Assessment (as described in [39] of the statement of claim), I do not consider it sufficiently arguable that this is capable of constituting a failure to make a reasonable adjustment. As the respondent submits, an assessment is a tool of analysis that may recommend the making of certain adjustments. The conduct of such an assessment does not fall within the descriptions of an “adjustment” referred to in the cases. For example, in Watts, Mortimer J said at [22] that the word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”, referring to the Oxford English Dictionary (online edition). The mere conduct of an assessment as pleaded in the statement of claim does not itself involve an alteration or modification; indeed, it may recommend that no changes be made.
51 Secondly, while I consider it arguable that the failure to implement a Behaviour Intervention Plan may constitute a failure to make a reasonable adjustment, I consider it necessary for the applicants to identify as material facts the elements of such a plan in respect of the first applicant. At present, the pleading merely describes in generic terms the nature of a Behaviour Intervention Plan (at [40]). In order for the respondent to know the case it has to meet, the applicants need to identify the content of the Behaviour Intervention Plan they say should have been implemented in respect of the first applicant. Further, unless the content of the plan is identified, it will not be possible to determine whether the failure to implement the plan constitutes the failure to make a reasonable adjustment.
52 Insofar as the applicants rely on Watts at [23] and [27], these paragraphs do not assist the applicants. In Watts at [23], Mortimer J said (in the context of discrimination at work) that an adjustment is made for the person and is to be enabling or facultative. However this does not suggest that the conduct of an assessment can itself constitute a reasonable adjustment, or that it is not necessary to identify with precision the adjustment that it is said should have been made. Watts at [27] concerned the meaning of “reasonable adjustment” in the legislation and does not take the matter any further for present purposes.
53 The applicants also refer to the definition of “adjustment” in cl 3.3 of the Disability Standards for Education 2005, Watts at [18]-[21] and the explanatory memorandum for the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29] and [35]. However, the definition and the passages relied upon do not suggest that the conduct of an assessment can itself constitute a reasonable adjustment, or that it is not necessary to identify the elements of a behavioural plan that it is said should have been implemented.
54 The applicants rely on Kiefel at [91]-[92]. In those paragraphs, Tracey J stated that there was no doubt that behaviour management plans of varying forms were prepared and implemented in the three schools which the applicant attended, and that what was put in issue was the effectiveness of the various plans. Tracey J also referred to an allegation that there were deficiencies in the plans. These paragraphs do not suggest that an applicant can rely on the failure to implement a behavioural plan without identifying the content of the plan that it is said should have been implemented.
55 The applicants also rely on Connor at [297]-[337]. While it appears from [297] that the pleaded allegation in that case was similar to that in the present case, in reality the allegation was quite different. At [303], Rangiah J stated that the “allegation pleaded in the statement of claim does not, in reality, seem to be that no Functional Behaviour Assessment was carried out or that no Behaviour Plan was developed, but that those that were carried out or developed were inadequate”. Thus the allegation in that case was quite different from the allegation in the present case.
56 The applicants also refer to Snell at [40]. In that paragraph it was stated: “The adjustment relied on here is the functional behaviour assessment and behaviour intervention plan which are particularised to an adequate degree and properly identified as being for the applicant.” It seems that both the assessment and the plan were sufficiently particularised in that case.
57 Thirdly, in relation to the pleading of the comparator at [48] of the statement of claim (set out at [45] above), while I accept the applicants’ submission that the comparator need not be a person with no disability, it is necessary for the purposes of s 5(2) that the comparator be “in circumstances that are not materially different” from those of the first applicant. This section of the statement of claim fails to allege this element of the test in s 5(2). Thus, this section of the statement of claim fails to plead a critical element of the claim. It may perhaps be implicit in [48] that the circumstances of a person with vision impairment or hearing impairment or who uses a wheelchair are said to be not materially different, but if that is what is intended to be conveyed it should be spelled out, as it is not obvious that a person with the identified physical disabilities would be (relevantly) in circumstances that are not materially different: see, eg, Tropoulos v Journey Lawyers Pty Ltd (2019) 287 IR 363 at [201]-[202]. This is not to say that I necessarily accept the respondent’s description of the appropriate comparator. It is for the applicants to set out their case as to the various elements of s 5(2) and then seek to establish that case for the purposes of s 5(2) at trial. The difficulty with the current pleading is that it does not contain an allegation that the comparator is “in circumstances that are not materially different”, which is a critical element of s 5(2). In the absence of such an allegation, this section of the statement of claim is deficient.
Fourth Allegation – Reasonable adjustments – Engagement of treating practitioner
58 This section of the statement of claim alleges direct discrimination within the meaning of s 5(2) of the Disability Discrimination Act by way of a failure to make a reasonable adjustment in relation to the engagement of the first applicant’s occupational therapist, Cara Sheekey, as an ongoing consultant and the adoption of her advice and recommendations. This allegation combines two distinct matters:
(a) the engagement of Ms Sheekey in the sense of hiring her and meeting her ongoing costs; and
(b) the adoption of her advice and recommendations.
59 The respondent seeks strike out of the fourth allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions can be summarised as follows:
(a) The mere engagement of a person’s chosen expert cannot constitute a reasonable adjustment. Nothing about the engagement of a consultant or the meeting of her costs is in itself enabling or facultative of the first applicant’s ability to access the benefits of education. Moreover, the allegation fails to specify the work that the occupational therapist would be engaged to undertake to address the first applicant’s behaviours of concern and so it fails to meet the basic requirements for a proper pleading regarding a reasonable adjustment.
(b) To the extent that the allegation is about a failure to implement advice and recommendations from Ms Sheekey, no particulars of any specific recommendation or piece of advice are pleaded. To meet the requirements of a reasonable adjustment, particulars must be given both of the adjustment itself and the basis on which the applicants say it was required. Absent such particulars, the allegation does not plead a proper cause of action.
(c) Even if such particulars were provided, [56] refers to a student with a physical disability as the comparator. For the reasons given in relation to the third allegation, the comparator must be a student without the first applicant’s alleged disabilities but who is otherwise in circumstances not materially different – here, a student who requested that the respondent engage and act on the advice of a private consultant for reasons of their behaviour but who does not have the disabilities the first applicant is alleged to have had.
(d) No material facts are pleaded to support the assertion that a student who did not have the disabilities the first applicant is alleged to have had would have had the advice and recommendations of their private treating therapist implemented. Absent those material facts, and with the use of an inappropriate comparator, [57] and [58] do not disclose a reasonable cause of action because they do not plead a causative link between the first applicant’s alleged disabilities and the failure to make the adjustment or that the treatment the first applicant received was relevantly less favourable.
60 The applicants’ submissions in response are at [96]-[103] of their submissions. The applicants submit that: the respondent’s submissions once again suggests that the applicants would be obliged to write and plead the content of the advice and recommendations that would have been provided if Ms Sheekey had been engaged by the respondent and her costs paid; this is impossibly burdensome upon the applicants. The applicants also refer to their earlier submissions in relation to the comparator issue.
61 In my view, this section of the statement of claim should be struck out.
62 First, in relation to the pleading of the comparator at [56], this suffers from the same deficiency as discussed at [57] above in the context of the comparable pleading as part of the third allegation.
63 Secondly, insofar as the applicants rely on the respondent’s failure to engage and pay for the services of Ms Sheekey, and adopt her advice and recommendations, the applicants should provide details of the work that Ms Sheekey would have performed and of her advice and recommendations that the respondent failed to implement. These are matters that could have been addressed by the provision of further particulars (rather than strike out), but in view of my conclusion in the preceding paragraph, the section of the statement of claim needs to be struck out in any event. I do not accept the applicants’ submission that the provision of these details would be impossibly burdensome on the applicants.
64 I note for completeness that I do not accept the respondent’s submission that it is not open to the applicants to plead that the engagement of a person’s chosen expert constitutes a reasonable adjustment. Provided that details are provided of the work that the expert would have performed, I consider the question whether this can constitute a reasonable adjustment to be a matter best determined at trial rather than at this stage.
Fifth Allegation – Reasonable adjustments – Application of the Positive Planning Matrix
65 This section of the statement of claim alleges direct discrimination within the meaning of s 5(2) of the Disability Discrimination Act by reason of the failure to make a reasonable adjustment in the form of application of the Positive Planning Matrix.
66 The respondent seeks strike out of the fifth allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions can be summarised as follows:
(a) The allegation fails because it is cast at such a high degree of generality as to be a complaint about the quality of the respondent’s educational approach rather than an allegation of discrimination under the Disability Discrimination Act. There are no material facts pleaded in [60] and [61] as to what specific things should have been, and were not, done. The terms “application of the Positive Planning Matrix” and “apply the Positive Planning Matrix” as used in those paragraphs and in [63] are not defined and so there is no sufficient particularisation of the content of the alleged reasonable adjustment.
(b) Even assuming that “application of the Positive Planning Matrix” were sufficiently particularised so as to allege a reasonable adjustment, [62] makes the same error with regard to a comparator as that made in the third and fourth allegations.
(c) By reason of the use of an inappropriate comparator, [63] and [64] do not plead a proper causal link between the first applicant’s alleged disabilities and the failure to apply the Positive Planning Matrix, or that the treatment the first applicant received was less favourable. As a result, the allegation fails because it does not plead the elements of a claim under s 5(2).
(d) Paragraph 65 is deficient in that it: asserts a limitation or denial of access to the provision of education but gives no material facts to make good that assertion; and asserts that the respondent’s failure to prevent the first applicant’s behaviours caused detriment, but makes no plea, and gives no material facts by way of particulars, that application of the Positive Planning Matrix would have prevented those behaviours.
67 The applicants’ submissions in response are at [104]-[111] of their submissions. The applicants dispute that the allegation is a complaint about the quality of the respondent’s educational approach. The applicants refer to their earlier submissions in relation to the comparator issue.
68 The issues raised by this section of the statement of claim are similar to those raised in relation to the fourth allegation, discussed above. For substantially the same reasons, I propose to strike out this section of the statement of claim, because of the deficiency in the pleading of the comparator. I also consider that the applicants should provide details of the contents of the Positive Planning Matrix that they contend should have been applied as a reasonable adjustment. Again, this could have been addressed by the provision of further particulars, but the section of the statement of claim needs to be struck out in any event due to the comparator issue. Insofar as the respondent contends that there are other deficiencies with this section of the statement of claim, I consider these to be issues for trial.
Sixth Allegation – Reasonable adjustments – Comprehensive assessment and Individual Education Plan
69 This section of the statement of claim alleges direct discrimination within the meaning of s 5(2) of the Disability Discrimination Act by reason of a failure to make a reasonable adjustment in the form of a comprehensive assessment and the development of an Individual Education Plan.
70 The respondent seeks strike out of the sixth allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions can be summarised as follows:
(a) Paragraphs 66.1 and 67 define the content of such assessments and plans by reference to various named and unnamed guidelines or policies of the respondent. In so doing they seek to enforce those guidelines and policies in a manner that is not permissible. The Disability Discrimination Act does not operate to permit a general review of compliance with guidelines or an overall assessment of the adequacy of attempts made by an education provider.
(b) As particularised by the applicants in [66.1], the proposed comprehensive assessment is not enabling or facultative but rather an investigation that might lead to the identification of enabling or facultative adjustments. It is accordingly not capable of being a reasonable adjustment.
(c) Similarly, [66.2] sets out the contents of a hypothetical education plan but does not identify precise adjustments that would be enabling or facultative for the first applicant.
(d) To the extent that either the comprehensive assessment or the Individual Education Plan are sufficiently identified and particularised as reasonable adjustments, the sixth allegation fails to plead the material facts necessary to establish that the alleged failure to provide them was discriminatory.
(e) Paragraph 69 refers to the comparator as being a student with a physical impairment. As already set out, such a comparator is not appropriate and will not permit consideration of whether a person without the first applicant’s disabilities would have been treated more favourably.
(f) In the absence of a proper comparator, [70] and [71] do not plead material facts to establish that the first applicant was treated less favourably than a student in circumstances not materially different or that his alleged disabilities were the basis for the failure to make the reasonable adjustment.
(g) Paragraph 72 asserts a limitation or denial of the first applicant’s access to education but does not plead any material facts that establish that assertion. It is not possible to understand from the pleading what the alleged effect of the failure to make the reasonable adjustments was.
71 The applicants’ submissions in response are at [112]-[131] of their submissions. There is substantial overlap between these submissions and the applicants’ submissions in relation to the third allegation. The applicant also submits that it is wrong to suggest that they seek a “general review of compliance with guidelines or an overall assessment of the adequacy of attempts made by education provider”; the statement of claim asserts that the first applicant required an assessment and plan. The applicants submit that the nub of the sixth allegation is that the respondent should have identified what the first applicant needed in areas such as writing, social skills and continence management and should have provided it.
72 The issues raised by this section of the statement of claim are similar to those raised in relation to the third allegation, discussed above. For substantially the same reasons, I propose to strike out this section of the statement of claim. First, insofar as this section of the claim relies on the failure to carry out a “comprehensive assessment” (as described in [66] of the statement of claim), I do not consider it sufficiently arguable that this constitutes a failure to make a reasonable adjustment. Secondly, while I consider it arguable that the failure to implement an Individual Education Plan may constitute a failure to make a reasonable adjustment, I consider it necessary for the applicants to identify as material facts the elements of such a plan in respect of the first applicant. Thirdly, in relation to the pleading of the comparator at [69] of the statement of claim, while I accept the applicants’ submission that the comparator need not be a person with no disability, it is necessary for the purposes of s 5(2) that the comparator be a person “in circumstances that are not materially different” from those of the first applicant. The statement of claim fails to allege this element of the test in s 5(2).
73 I note that there is no challenge to the seventh allegation. I note that this issue discussed in [57] above applies also to this allegation. This should be addressed in any repleading of the statement of claim.
Eighth allegation – Reasonable adjustments – One-on-one assistance
74 This section of the statement of claim alleges direct discrimination within the meaning of s 5(2) of the Disability Discrimination Act by reason of the failure to make a reasonable adjustment in the form of one-on-one assistance at all times, namely the provision of an aide whose primary job was to provide assistance to the first applicant.
75 The respondent seeks strike out of the eighth allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions can be summarised as follows:
(a) The respondent accepts that the provision of one-on-one assistance can be a reasonable adjustment. In any trial of this proceeding, whether or not such assistance was required and whether or not it was provided will be contested questions of fact.
(b) Paragraph 81 suggests that the measure of whether the reasonable adjustment was provided is whether the first applicant could “successfully access the curriculum” but the term is undefined and capable of multiple meanings. What does “successfully access” mean? Is it measured by educational achievement, or by opportunity to achieve? The ambiguity in the term affects how [87] can be understood, since [87] in turn asserts a limitation or denial of access to education but does not plead the material facts which constitute that limitation or denial.
(c) While the issue does not arise because of the respondent’s acceptance that an aide is a reasonable adjustment and its defence that the assistance that was required by the first applicant was provided, it may be noted that [84] repeats the error of other allegations in referring to a comparator who is not the proper comparator for the allegation.
(d) Paragraph 87 asserts that the failure to make the reasonable adjustment denied the first applicant the benefit of education by classroom instruction, teaching and the provision of a social education but: as in the case of other allegations, does not define or plead material facts relevant to the content of the term “social education”; and does not plead material facts relevant to the content of the alleged denial or limitation of access to any of the benefits of education. The respondent cannot know from the present pleading what is said to have been the impact of the alleged failure to make the reasonable adjustment. What in fact was missed or denied to the first applicant because of the alleged failure to provide one-on-one assistance? How is the ambiguity in [81] to be read in this context?
76 I am not persuaded that this section of the statement should be struck out. In relation to “social education”, I refer to my reasons, above, in relation to [10.3] of the statement of claim. In my view, the other aspects of this section of the statement of claim are sufficiently clear for the respondent to know the case it needs to meet, save that I consider that further particulars should be provided of the words “successfully access the curriculum” in [81], as their meaning is unclear.
Ninth Allegation – Reasonable adjustments – Implementation of the Behaviour Intervention Plan
77 This section of the statement of claim alleges direct discrimination within the meaning of s 5(2) of the Disability Discrimination Act by reason of the failure to implement the Behaviour Intervention Plan developed in February 2018.
78 The respondent seeks strike out of the ninth allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions can be summarised as follows:
(a) Paragraph 92 does not raise a proper comparator for the purposes of identifying whether the treatment of the first applicant was less favourable than the treatment a student without his disability would have received or that the failure to make the alleged reasonable adjustment was because of the first applicant’s disabilities. The relevant circumstances for the purposes of the ninth allegation are circumstances in which the behaviour of a student is dangerous to other students and places their safety at risk. The proper comparator is a therefore a student whose conduct places others at risk but who does not have the alleged disabilities the first applicant has. A student in a wheelchair or with a visual or hearing impairment is not a student whose circumstances are “not materially different” to the first applicant.
(b) As a result of the failure to identify a proper comparator, [93] and [94] do not disclose a reasonable cause of action because they do not plead material facts establishing that the first applicant was treated less favourably by reason of his alleged disabilities. They also do not plead material facts that establish that the alleged failure to implement the Behaviour Intervention Plan was because of the first applicant’s disabilities. Paragraph 94 invites inferences but because of the failure to identify a proper comparator, does not establish a basis for the inference sought to be drawn.
(c) Paragraph 97 asserts that the failure to make the reasonable adjustment denied the first applicant the benefit of education by classroom instruction, teaching and the provision of a social education but: does not define or plead material facts relevant to the content of the term “social education”; and does not plead material facts relevant to the content of the alleged denial of benefit. The respondent cannot know from the present pleading what is said to have been the impact of the alleged failure to make the reasonable adjustment.
79 The applicants’ submissions in response are at [140]-[147] of their submissions.
80 In my view, this section of the statement of claim should be struck out on the basis of the deficiency in the pleading of the comparator at [92]. I refer to my reasons at [57] above in relation to the comparable allegation as part of the third allegation. Otherwise, I do not accept the respondent’s submissions relating to strike out. In relation to “social education”, I refer to my reasons, above, in relation to [10.3] of the statement of claim. The other aspects of this section of the statement of claim in respect of which complaint is made are, in my view, sufficiently clear for the respondent to know the case it needs to meet.
Tenth Allegation – Reasonable adjustments – Coordinated Safety/Response Plan
81 This section of the statement of claim alleges direct discrimination within the meaning of s 5(2) of the Disability Discrimination Act by reason of the failure to make a reasonable adjustment in the form of a Coordinated Safety/Response Plan, for the stated purpose of “planning its response to [the first applicant’s] dangerous behaviours and provide protections to keep everyone safe”.
82 The respondent seeks strike out of the tenth allegation on the basis that the pleading: (a) fails to disclose a reasonable cause of action; (b) is evasive or ambiguous; or (c) is likely to cause prejudice, embarrassment or delay. The respondent’s submissions can be summarised as follows:
(a) As pleaded in [98]-[99], the Coordinated Safety/Response Plan is not a reasonable adjustment because it is not an enabling or facultative adjustment for the first applicant but rather a plan for a response to the first applicant’s behaviour for the protection of others. The paragraphs suggest that the plan was for the benefit of other students as protection from the first applicant’s behaviours. Regardless of the merits of such a plan for that purpose, the allegation does not disclose a reasonable cause of action because it does not allege a failure to provide a reasonable adjustment for the first applicant.
(b) Paragraph 101 does not raise a proper comparator for the purposes of identifying whether the treatment of the first applicant was less favourable than the treatment a student without his disability would have received or that the failure to make the alleged reasonable adjustment was because of the first applicant’s disabilities. The relevant circumstances for the purposes of the tenth allegation are circumstances in which the behaviour of a student is dangerous to other students and places their safety at risk. The proper comparator is a therefore a student whose conduct places others at risk but who does not have the alleged disabilities the first applicant has. A student in a wheelchair or with a visual or hearing impairment is not a student whose circumstances are “not materially different” to the first applicant.
(c) As a result of the failure to identify a proper comparator, [102] and [103] do not disclose a reasonable cause of action because they do not plead material facts establishing that the first applicant was treated less favourably by reason of his alleged disabilities. To the extent that the Coordinated Safety/Response Plan is capable of being a reasonable adjustment, [101]-[103] do not plead material facts that establish that the failure to establish it was because of the first applicant’s disabilities.
(d) Paragraph 105 asserts that the failure to make the reasonable adjustment denied the first applicant the benefit of education by classroom instruction, teaching, student support services and the provision of a social education and subjected him to the detriment of alienation from staff and peers but: does not define or plead material facts relevant to the content of the term “social education”; does not define or plead material facts relevant to the content of the term “alienation from staff and peers” so that the respondent cannot know what the alleged detriment was; and does not plead material facts relevant to the content of the alleged denial of benefit. The respondent cannot know from the present pleading what is said to have been the impact of the alleged failure to make the reasonable adjustment.
(e) As already set out in relation to earlier allegations, a claimant must do more than merely recite the words of the Disability Discrimination Act to establish causation. To the extent that the applicants rely on inferences, the materials facts from which those inferences are to be drawn must be pleaded. Paragraph 103 invites inferences but, because of the failure to identify a proper comparator, does not establish a basis for the inference sought to be drawn.
83 The applicants’ submissions in response are at [148]-[170] of their submissions. There is some overlap between these submissions and the applicants’ submissions in relation to the third allegation. The applicants also submit that the nub of the tenth allegation is that the respondent should have provided protections in respect of the first applicant’s behaviour; the precise protections of course required analysis and planning, but that is merely the first part of providing the protection.
84 The issue raised by this section of the statement of claim overlaps with the issue raised by the part of the third allegation relating to the Behaviour Intervention Plan. For substantially the same reasons, I consider that this section of the statement of claim should be struck out. First, while I consider it arguable that the failure to implement a Coordinated Safety/Response Plan may constitute a failure to make a reasonable adjustment, I consider it necessary for the applicants to identify as material facts the elements of such a plan in respect of the first applicant. Secondly, in relation to the pleading of the comparator at [101] of the statement of claim, while I accept the applicants’ submission that the comparator need not be a person with no disability, it is necessary for the purposes of s 5(2) that the comparator be a person “in circumstances that are not materially different” from those of the first applicant. The statement of claim fails to allege this element of the test in s 5(2).
Charter of Human Rights
85 Section D of the statement of claim contains a claim based on the Charter. The applicants allege in summary that:
(a) The failures to act involved in allegations 2-10, 12 and 14 each involved the Department of Education and Training and/or Fitzroy Primary acting in a way that was incompatible with the first applicant’s rights in ss 8(2) and (3), 10(b), 13(a), and 17(2) of the Charter.
(b) The decisions involved in allegations 2-10, 12 and 14 each involved the Department of Education and Training and/or Fitzroy Primary failing to give proper consideration to the first applicant’s relevant Charter rights, namely the rights in ss 8(2) and (3), 10(b), 13(a), and 17(2) of the Charter.
(c) The acts involved in allegations 1 and 11 each involved Fitzroy Primary acting in a way that was incompatible with the first applicant’s rights in ss 8(2) and (3), 10(b), 12, 17(2) and 21(1), (2) and (3) of the Charter.
(d) The decisions involved in allegations 1 and 11 each involved Fitzroy Primary failing to give proper consideration to the first applicant’s relevant Charter rights, namely the rights in ss 8(2) and (3), 10(b), 12, 17(2) and 21(1), (2) and (3) of the Charter.
Insofar as these contentions refer to allegations 2 and 12, I note that those allegations have now been deleted from the statement of claim.
86 By [135] of the statement of claim, the applicants seek a declaration that the conduct was unlawful under the Charter. That relief is not sought in the originating application.
87 The respondent seeks strike out of this section of the statement of claim on the basis that the pleading: (a) fails to disclose a reasonable cause of action; or (b) is an abuse of process. The respondent submits that: the present proceeding was commenced in accordance with s 46PO of the Australian Human Rights Commission Act; under s 46PO(3), its subject matter must be confined to the subject matter of the complaint made to, and terminated by, the Australian Human Rights Commission; the applicants seek declarations of unlawfulness under the Charter but made no reference to that claim in their complaint to the Commission. The respondent also submits that, to the extent that the applicants seek to rely on the Charter to invite the Court into a broader and more general review of the way the respondent sought to educate the first applicant during the claim period, a review going beyond the proper scope of claims under the Disability Discrimination Act, the claims should be regarded as an abuse of process; defending the claims will impose substantial additional time in preparation and at trial because of the need for the respondent to respond in evidence to each allegation by reference to each of the rights identified, and for the Court to give consideration to each material fact alleged in each allegation by reference to each of the rights relied upon.
88 The applicants’ submissions in response are at [171]-[183] of their submissions.
89 I am not satisfied that the applicants’ claims based on the Charter are precluded by s 46PO(3) of the Australian Human Rights Commission Act (which has been set out at [32] above). The expression “unlawful discrimination” is defined in s 3(1) of the Australian Human Rights Commission Act as follows:
unlawful discrimination means any acts, omissions or practices that are unlawful under:
(aa) Part 4 of the Age Discrimination Act 2004; or
(a) Part 2 of the Disability Discrimination Act 1992; or
(b) Part II or IIA of the Racial Discrimination Act 1975; or
(c) Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or
(e) subsection 27(2) of the Racial Discrimination Act 1975; or
(f) section 94 of the Sex Discrimination Act 1984.
90 I would read the words, “[t]he unlawful discrimination alleged in the application” in the opening line of s 46PO(3) as referring to unlawful discrimination as so defined. Thus, to the extent that unlawful discrimination (as defined) is alleged in a court application, it must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint, but that is the extent of the limitation imposed by s 46PO(3). It follows that s 46PO(3) does not apply to claims based on the Charter contained in a court application. This reflects the text and structure of s 46PO(3). It does not state, for example, that “a court application may only contain …” certain types of claims. Rather, it fixes on the unlawful discrimination alleged in a court application and attaches conditions to the making of those allegations. Further and in any event, the applicants’ claims based on the Charter arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
91 Insofar as the respondent contends that this section of the statement of claim is an abuse of process, there is no evidentiary material before the Court to support this proposition. Further, the submissions do not establish that the claims constitute an abuse of process. It may be accepted that these claims will significantly expand the issues in the case and are likely to significantly increase the costs of the proceeding. These may well have costs consequences, for example, if the applicants succeed on other aspects of their case but fail on the Charter claims.
92 For these reasons, I do not propose to strike out this section of the statement of claim.
Application for further and better particulars
93 The respondent also seeks further and better particulars of certain paragraphs of the statement of claim. Paragraph 3 of the respondent’s interlocutory application seeks an order that the applicants provide particulars of:
(a) the meaning of the term “social education” as in [10.3], [28.1], [52], [59], [65], [72], [97] and [105];
(b) the meaning of the terms “trigger situations” and “help to avoid trigger situations” as set out in [15], [17], [22], [27.4] and [27.5];
(c) the meaning of the term “proactive strategies” in [40.5];
(d) the meaning of the terms “reach his educational potential” in [53], [56], [60], [62], [66], [67.5] and [69];
(e) the meaning of the terms “application of the Positive Planning Matrix” and “apply the Positive Planning Matrix” in [60], [60.4], [61] and [63];
(f) the meaning of the term “successfully access the curriculum” in [81];
(g) the meaning of the term “implement according to its terms” in [91];
(h) an appropriate comparator in [48], [56], [62], [69], [92] and [101]; and
(i) the material facts which are relied on to establish the matters in [38]-[46], [52], [53], [54], [55], [57], [65], [72] and [87].
94 My conclusions in relation to each of these requests are as follows:
(a) In relation to “social education”, for the reasons given in relation to [10.3] of the statement of claim, I consider the expression to be sufficiently clear for the respondent to know the case it has to meet. I do not consider that further particulars are required.
(b) In relation to “trigger situations” and “help to avoid trigger situations” as set out in [15], [17], [22], [27.4] and [27.5], for the reasons given in relation to the first allegation, I consider that further particulars are required. Further, as indicated in the section dealing with the first allegation, further particulars should be provided of the references in [18] of the statement of claim to “expert assistance to avoid trigger situations” and “the Respondent’s behaviour/pro-social policies”.
(c) In relation to “proactive strategies” in [40.5] (which forms part of the third allegation), further particulars should be provided if the third allegation is repleaded.
(d) In relation to “reach his educational potential” in [53], [56], [60], [62], [66], [67.5] and [69] (which form part of the fourth, fifth and sixth allegations), further particulars should be provided if these allegations are repleaded.
(e) In relation to “application of the Positive Planning Matrix” and “apply the Positive Planning Matrix” in [60], [60.4], [61] and [63] (which form part of the fifth allegation), further particulars should be provided if the fifth allegation is repleaded.
(f) In relation to “successfully access the curriculum” in [81] (which forms part of the eighth allegation), as indicated above I consider that further particulars should be provided.
(g) In relation to “implement according to its terms” in [91] (which forms part of the ninth allegation), I consider the allegation to be sufficiently clear and not to require further particulars.
(h) In relation to an appropriate comparator in [48], [56], [62], [69], [92] and [101], this issue has been dealt with above in the context of the strike-out application.
(i) Insofar as the respondent seeks particulars of the material facts which are relied on to establish the matters in in [38]-[46], [52], [53], [54], [55], [57], [65], [72] and [87], no specific submissions have been provided in support of this request. I do not propose to require further particulars of these paragraphs at this stage. If necessary, the matter can be revisited after the applicants have provided an amended pleading.
Conclusion
95 For the reasons set out above, I will make orders striking out the following parts of the statement of claim:
(a) the third allegation;
(b) the fourth allegation;
(c) the fifth allegation;
(d) the sixth allegation;
(e) the ninth allegation; and
(f) the tenth allegation.
96 I will also require the applicants to provide further particulars of:
(a) the expressions, “trigger situations” and “help to avoid trigger situations” as set out in [15], [17], [22], [27.4] and [27.5];
(b) the references to “expert assistance to avoid trigger situations” and “the Respondent’s behaviour/pro-social policies” in [18]; and
(c) the words “successfully access the curriculum” in [81].
97 I will order that the respondent’s interlocutory application otherwise be dismissed. I will also give the applicants leave to file an amended pleading. This reflects one of the orders in the respondent’s interlocutory application. I will give the applicants 30 days in which to file and serve the amended pleading. If this period of time is insufficient, they can apply for the period to be extended.
98 In relation to the costs of the respondent’s interlocutory application, I will provide a period of time for each party to file a short written submission, and will determine the issue on the papers.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. |
